Report No. 54
Recommendation
21.11. It appears to us, however, that such an amendment would be unobjectionable in principle, and would also reduce delay, and we recommend insertion of the following as Order 21, rule 22A:-
"22A. Where any property is sold in execution of a decree, the sale shall not be set aside by reason only of the death of the judgment-debtor between the date of issue of the proclamation of sale and the date of sale, notwithstanding the failure to substitute his legal representative in his place; but, in case of such failure, the Court may set aside the sale if satisfied that the legal representative of the judgment-debtor has been prejudiced thereby."
Order 21, rule 24(3)
21.12. Under Order 21, rule 24(3), a process issued by a court (in execution) should specify the day on or before which it shall be executed. After the date fixed for return, execution is not valid1. With reference to this rule, a short point was discussed in the earlier Report2. The Commission noted that some High Courts had made local amendments3, which require that the day on or before which the process should be returned, should also be specified in the process. The Commission considered it unnecessary to adopt this amendment, being of a minor character.
1. See Gurdial v. Emp., ILR 55 All 119: AIR 1933 All 46 (Pullan J.).
2. 27th Report, note on the Order 21, rule 24(3).
3. See also Civil Justice Committees Report, (1925), para. 13, to the same effect.
Recommendation
21.14. Accordingly, we recommend that Order 21, rule 24(3), should be revised as follows:-
"(3) In every such process, a day shall be specified on or before which it shall be executed, and a day shall also be specified on or before which it shall be returned to the court but no process shall be deemed to be void i f a day for its return is not specified as required by this rule."
Order 21, rule 26
21.15. Under Order 21, rule 26(1), the Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such court of first instance or appellate court if execution had been issued thereby, or if application for execution had been made thereto. Under sub-rule (3) of this rule, the court may require security from the judgment-debtor, or impose other conditions, before granting stay.
21.16. In the earlier Report, the following observations1 were made with reference to stay (under this rule):-
"A recommendation has been made in the Fourteenth Report2-3 to the effect that where a judgement-debtor applies for stay of execution under this rule, the court shall require him to furnish security or impose conditions under the rule, before granting stay. This recommendation was made in view of the feeling that the courts failed to discriminate between honest and dishonest judgment-debtors and thus failed to exercise properly the discretion left to them. It is, however, considered that the existing provision should continue, and that making it mandatory would cause hardship. Hence, no change is suggested". We are, however, of the view that the change proposed by the 14th Report is a salutary one, and should be carried out.
1. 27th Report, note on Order 21, rule 26.
2. 14th Report, Vol. I.
3. See also Civil Justice Committee (1925), Report, p. 406, para 14.
Recommendation
21.17. Accordingly, we recommend that Order 21, rule 26(3) should be revised as follows:-
"(3) Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor, the court shall require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit." Order 21, rule 29
21.18. Order 21, rule 29, runs as follows:-
"29. Where a suit is pending in any court against the holder of a decree of such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."
21.19. At present, there is a conflict of decisions on the question whether the decree must be of that court which is required to act under this rule. One view is that a court to which the decree of any other court is transferred, can act under this rule. But another line of cases takes a narrower view1.
The wider view bases itself on the principle that the transferee court becomes the "court" which passed the decree, (section 37), and would under section 42, become clothed with the same powers. The narrower view justifies itself on the language of the section, which requires identity of the court passing the decree and the court in which the suit is pending. To clarify the position, necessary change was proposed in the earlier Report2 on the Code, adopting the wider view.
1. See cases cited in 27th Report, note on Order 21, rule 29.
2. 27th Report, note on Order 21, rule 20.
21.20. With this change, we agree. But there are a few other points which require consideration.
It has been stated in one of the replies1 to our Questionnaire that this rule is not needed, as the purpose can be served by obtaining a temporary injunction. We have examined the matter, but it appears to us that the scope of temporary injunctions is different. A temporary injunction is not directed to a court, but to an individual2. Apart from that, the rule which relates to temporary injunctions3, speaks of property being "wrongfully" sold in execution of a decree, while an applicant under Order 21, rule 29 does not necessarily assert that the execution is wrongful. One of the objects of the rule is to prevent multiplicity of execution proceedings, and this object may be of importance even if property of the person who is now the plaintiff is, (in his capacity as a judgment-debtor), being lawfully sold in execution.
1. Question 29.
2. AIR 1938 Lah 220 (221).
3. Order 39, rule 1.
21.20A. Another point made in the same reply is, that the rule is being abused; but we do not think that deletion of the rule would be justified merely on the ground of occasional abuse. Situations that have figured in reported decisions1 show that the rule does perform a useful role.
1. (a) Mahesh Chandra v. Jogendra, AIR 1928 Cal 222. (b) Merchants' Bank v. D. Ammal, AIR 1963 Mad 143 (144).
21.20B. For example, in a Madras case1, the respondent was the assignee¬decree-holder, and the petitioner was a woman. She was the plaintiff in a suit, and her suit was for damages against the assignee-decree-holder, for having broken his agreement with her whereby he agreed to receive, in satisfaction of the assigned decree, certain bonds and to get satisfaction entered up. She desired stay under rule 29. The lower courts took the view that rule 29 did not apply to the facts. The view was set aside in revision. No opinion was expressed on the merits, but the facts illustrate how rule 29 could prove useful.
1. Konnammal v. Maftimkamuruswami, AIR 1936 Mad 102 (103).
21.21. In another Madras case1, a proceedings before the single judge was by the appellant bank for an interim order of stay pending the appeal with regard to the decree obtained by the respondent (widow of the deceased employee of the bank), embodying the liability of the bank to pay certain provident fund amounts to the credit of that employee. The bank claimed that the deceased employee was guilty of malversation of the funds of the institution to a for greater extent than the claim; and that, therefore, the widow could not obtain such a decree, or at least that she should not be permitted to enforce the decree and take away the monies pending the appeal by the bank against the decree in the widow's suit. No cross-claim by the Bank was pending, and rule 29 did not apply. But the facts illustrate hOw, if, the situation was under rule 29, it would have been useful.
1. Merchants' Bank Ltd. v. D. Ammal, AIR 1963 Mad 143.
21.22. Security also cannot be required in every case.
As was laid down in a Rajasthan case1-
"While granting stay of execution under Order 21, rule 29, the court should consider various circumstances before deciding that security should be furnished upto the entire decretal amount of the former suit. Where the former decree is passed on a mortgage, some security is already there. The court should enquire whether that security is sufficient or not. If it appears that the security is not sufficient, such further amount as might be necessary to make up the deficiency may be asked. Further, it should also enquire whether it is possible in the earlier suit for the decree-holder to ask for a personal decree."
However, it can be provided that ordinarily, before granting stay of a money decree, the court shall consider if security ought not be demanded.
1. Hansraj v. Satnarain, AIR 1957 Raj 219 (Wanchoo C.J. and Dave J.).
