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Report No. 54

Chapter 21

Execution

Introduction

21.1. Order 21 contains detailed rule as to the execution of decrees.

The body of the Code itself deals with certain matters relating to execution1. But the detailed procedure is dealt with in Order 21. Payments and adjustments of amounts due under a decree must be certified to the Court to avoid controversies later on. Various modes of execution are provided for. In practice, attachment and sale are the most common. The rules require an application for execution to be in writing, and in the prescribed form. Most movables are attached by seizure effected by a process-server under the authority of a warrant; immovables are attached by an order served on the judgment-debtor, forbidding him to deal with them. If the property is not susceptible of actual seizure from the possession of the judgment debtor-if, for instance, it is a debt payable to the judgment debtor-a prohibitory order is served on the person in possession or control.

1. Section 37, et seq.

21.2. Attachment may be followed by an application for its removal by a third party, and the present rules require a summary inquiry and order, which may be followed by a suit to establish the right denied in the summary proceedings. Before attached property is sold, notice must be given to the parties, and a proclamation issued containing the particulars prescribed. The proclamation must be posted on the court house, proclaimed by beat of drum near the property, and the court may require publication in a newspaper. The proclamation gives the date of sale, which must be at least fifteen days in the case of movables, and thirty in the case of immovables after the proclamation has been published.

The sale is usually an auction conducted by the bailiff, an officer of the court in charge of property under the control of the court, and of the process serving staff. The bailiff has a discretion to refuse the highest bid or postpone the sale. In the case of movables, the property passes at the fall of the hammer, but the rules governing the sale of immovables are more elaborate. The judgment-debtor may secure postponement of the sale if he can satisfy the court that he may be able to raise the money to satisfy the decree by sale, lease, or mortgage of the attached property, or otherwise. If the property is knocked down, the successful bidder is required to deposit only one-fourth of the sale price and has fifteen days in which to pay the balance.

The judgment-debtor may still save his property if within thirty days he satisfies the decree and pays the successful bidder one-twentieth of the sale price. Any person interested may move to set aside the sale for material irregularity or fraud in publishing or conducting the sale, and the successful bidder may apply to set aside the sale because the judgment-debtor had no saleable interest in the property, but, failing a successful application of the kind indicated, the sale is confirmed by the court, which may order the purchaser to be put in possession. Resistance by the judgment-debtor or any other person acting on his behalf may be punished by civil imprisonment, but a person unconnected with the judgment-debtor and in possession on his own account who has been evicted may apply to be reinstated.

Order 21, rule 2, and limitation

21.3. A point relating to limitation for applications under Order 23, rule 2, was discussed in the earlier Report1, and should be mentioned here. The period of limitation for an application for certification of payment or adjustment is 30 days under the Limitation Act, 1963, Article 125. Since the provision in the Civil Procedure Code regarding certification is now proposed to be made more stringent than at present (by requiring2 that the payment should be in the manner provided in Order 21, rule 1 as proposed to be amended, or that the adjustment should be proved by documentary evidence), it was considered that a longer period should be allowed.

It was, accordingly, recommended that the period should' be increased to 90 days3. The 14th Report4 recommended that the period should be deleted, but it was not considered necessary to go so far. While we agree that the period should be longer, we think that 60 days should suffice, and we recommend5 that the Limitation Act should be amended accordingly.

1. 27th Report, note on Order 21, rule 2 and limitation.

2. See 27th Report, amendment proposed in Order 21, rule 2.

3. Cf. Limitation Act, 1908, Article 174.

4. 14th Report, Vol. I.

5. This will necessitate amendment of Article 125, Limitation Act, 1963.

Order 21, rule 2(2) and sureties

21.4. In the earlier Report1, it was noted that under the Madras amendment to Order 21, rule 2, any party to the suit can certify and get recorded a payment or adjustment. Besides this, by the Madras amendment, a person who has become a surety as well as legal representatives of the judgment-debtor are also brought under this rule. These amendments were considered in the earlier Report, but it was felt that it was unnecessary to adopt them.

1. 27th Report, note on Order 21, rule 2.

21.5. The Commission stated that so far as sureties are concerned, even now, they fall under the rule1. So far as legal representatives are concerned, section 146 was adequate, in its opinion. No change was, therefore, proposed on these points. We are, however, of the view that so far as sureties are concerned, the Madras amendment should be adopted, so as to make the position explicit.

Recommendation

Accordingly, we recommend that in Order 21, rule 2(2), after the words "The judgment-debtor", the words "or any person who has become surety for the judgment-debtor" should be added.

1. (a) Tamil v. Devi, ILR 49 Mad 325.

(b) Onkarmal v. Nrilya, AIR 1923 Cal 313.

Order 21, rule 5, Mode of transfer

21.6. Under the earlier half of Order 21, rule 5, where the Court to which a decree is to be sent for execution is situated within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. But under the latter half of the rule, where the Court to which a decree is to be sent for execution is situated in another district, the decree is to be sent through the district court. It was noted in the earlier Report1, under local amendments2 in case where the courts are situated within the same State, the decree can be sent for execution to the transferee court directly, instead of through the District Court as is required by the present rule. The previous Commission, however, considered that the District Judge would be in a position to know and check up if the court mentioned is the proper court, and did not, therefore, favour an amendment.

1. 27th Report, note on Order 21, rule 5.

2. See amendments made by the Allahabad and Bombay High Courts.

21.7. We are of the view that the local amendments referred to above are useful, and we do not think that direct transmission of papers should, ordinarily, cause any difficulty. We are also of the view that in every case of transfer of a decree for execution (whether within or without the State), the decree should be sent to the transferee court directly. But the court to which it is sent should, if it has no jurisdiction, send the papers to the proper court.

Recommendation

21.7A. Accordingly we recommend that Order 21, rule 5, should be revised as follows:-

"5 Where a decree is to be sent for execution to another court, the court which passed such decree shall send the same directly to the former Court, whether or not the former court is situated in the same State, but the court to which it is sent shall, if it has no jurisdiction to execute the decree, send it to the court having such jurisdiction."

Order 21, rule 11(2)

21.8. Order 21, rule 11(2)(j)(ii) provides for mentioning "attachment and sale" or "sale without attachment" in the application for execution. It does not expressly mention simple attachment. The local amendment made by the Bombay High Court adds the words "by the attachment". Cases of simple attachment may arise when a decree or debt or money in the custody of a public officer, etc., is to be attached. It may also be noted, that section 51(b) covers attachment simpliciter1.

1. Amulya v. Pashupati, AIR 1951 Cal 48 (50), para. 7.

21.9. The earlier Report1 considered it unnecessary to adopt the Bombay amendment, as the residuary clause in rule 11 would suffice. We think, however, that the Bombay amendment could be usefully adopted.

1. 27th Report, note on Order 21, rule 11(2) and Bombay Amendment.

Recommendation

21.9A. Accordingly, we recommend that Order 21, rule 11(2)(j)(ii) should be revised as follows:-

"(ii) by the attachment, or by the attachment and sale, or by sale without attachment, of any property."

Order 21, rule 16

21.9B. As recommended under1 section 146, it is desirable to amend Order 21, rule 16, to make it clear that it does not affect the provisions of section 146, and a transferee of rights in the subject-matter of the suit can obtain execution of the decree without a separate assignment of the decree.

1. See discussion as to section.

Recommendation

21.9C. Accordingly, the insertion of the following Explanation below Order 21, rule 16, is recommended:

"Explanation-Nothing in this rule shall affect the provisions of section 146, and a transferee of rights in the property which is the subject-matter of the suit may apply for execution of the decree without a separate assignment of the decree, as required by this rule."

Order 21, rule 22A

21.10. With reference to execution of decrees, a point concerning the effect of death of the judgment-debtor was discussed in the earlier Report.1 The ordinary rule is that, the sale of a judgment-debtor's property after his death, and without bringing his representatives on record, does not bind his representatives. The Patna High Court has added rule 22A, to the effect that where property is sold in execution, the sale shall not be set aside by reason only of the death of the judgment-debtor between the date of issue of the sale proclamation and the date of sale, notwithstanding the failure to substitute legal representatives. But, if the legal representative is prejudiced, the Court may set aside the sale. The earlier Commission noted the above position, but considered it unnecessary to adopt the Patna Amendment.

1. 27th Report, note on Order 21, rule 22A, Patna amendment.



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