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Report No. 14

21. Admission of appeal conditional on security.-

The Civil Justice Committee proposed that in the case of orders in execution of money decrees restrictions should be placed on the right of appeal by requiring the appellant judgment-debtor to deposit or at least give security for the decretal amount as a condition precedent to the admission of an appeal. We recommend the acceptance of this proposal by an amendment of the Code.

22. Total prohibition of second appeals not desirable.-

The Civil Justice Committee also recommended the total prohibition of second appeals against orders in execution under section 47 except by special leave. As we have pointed out above, the right of second appeal in orders under section 47 is itself subject to the limitations of section 102. In a later chapter we have proposed a further restriction on the right to prefer second appeals by an amendment of section 102. We are, however, unable to recommend the total abolition of second appeals in orders passed under this section. Questions of great importance frequently arise in execution of decrees in complicated suits of a higher valuation and the prevention of second appeals altogether against orders in execution of such decrees might result in injustice and hardship.

23. Limitation-Articles 182-183.-

As regards the period of limitation for execution of decrees we invited opinion on two suggestions. The first was the omission of Articles 182 and 183 of Schedule I to the Indian Limitation Act leaving the decree-holder to execute his decree at any time within the period prescribed by section 48 of the Code; the second was the shortening of the period prescribed by section 48. So far as Articles 182 and 183 are concerned we need only refer to the recommendations which we have already made in our Report on the Limitation Act of 1908. We have there recommended that Articles 182 and 183 of the Limitation Act be deleted and that except in the case of mandatory injunctions, the period of limitation for the execution of all decrees should be the period of 12 years prescribed in section 48 of the Civil Procedure Code.1

1. Report, para. 70.

24. Section 48.-

As regards the period of limitation provided by section 48 we did not think it advisable to recommend a reduction of the period. The omission of Articles 182 and 183 will result in cutting out a large mass of applications. It will, we hope, ensure that the decree-holder will file an application for execution only when he is reasonably sure that the judgment-debtor will be able to satisfy the decree. It frequently happens that the judgment-debtor is not in a position to satisfy the decree in the years immediately following the decree but may acquire property afterwards. It is therefore just that the decree-holder should have a sufficiently long time to enable him to obtain satisfaction from the judgment-debtor.

25. Oral pleas of payment and adjustment.-

We shall next consider and make our recommendations with reference to certain provisions of Order XXI.

Rule 1 prescribes the modes of payment of money payable under a decree and rule 2 casts certain obligations upon the decree-holder and the judgment-debtor to certify to the court the fact of any payment or other adjustment of a decree out of court. Under rule 1 payment may be made into the court executing the decree or out of the court to the decree-holder or otherwise as the court passing the decree directs. Under rule 2, the decree-holder has to certify to the court any payment of money payable under a decree or any adjustment of the decree in whole or in part and the court has to record it.

If the decree-holder fails to certify the payment or adjustment, it is open to the judgment debtor also to inform the court of such payment or adjustment and to apply to the court for issuing a notice to the decree-holder to show cause why the payment or adjustment should not be recorded as certified. Such an application must, under Article 174 of the Limitation Act, be made within 90 days of the payment or adjustment. If the decree-holder fails to certify the payment or adjustment and does not show cause, the court shall record the same.

Frivolous pleas (State amendments) (Two aspects).- It is the usual experience of executing courts all over the country that the most common objection to execution is a plea of payment or of discharge of the decree out of court, supported by oral evidence and not evidenced by anything in writing. The judgment-debtor usually pleads a payment or some other adjustment either in full or part satisfaction of the decree which is alleged to have been made within 90 days and adduces evidence in support of it. In a large number of cases such pleas of payment or adjustment are not made bona fides and a good deal of the time of the executing court is wasted at the early stage in taking evidence and deciding such pleas which are ultimately rejected.

The opinion before us is unanimous that some restrictions should be imposed upon the mode or proof of such payment or adjustment in execution. In the words of the U.P. Judicial Reforms Committee, "The time has now come when courts should insist on all payments to be made towards a decree by the well-recognized modes of payment.1 Following the recommendations of that Committee the High Court of Allahabad has amended rule 1 by inserting in clause (b) of sub-rule (1) after the words "decree-holder" the words "through a bank or by postal money order or evidenced by a document".

The High Courts of Calcutta and Patna and the former High Court of Nagpur have amended only clause (a) of sub-rule (1) so as to enable the judgment-debtor to send money payable under a decree to the court by money order. These amendments deal with two aspects of the matter. The first relates to a convenient method of payment into the court which will evidence the satisfaction in part or whole of the decree. The second aspect relates to the exclusion of oral testimony in regard to alleged adjustments or satisfaction of the decree by requiring evidence of it in writing. We recommend an amendment of the Code which would give effect to the changes introduced by the amended rules of the High Courts from both these points of view.

1. Report, p. 41.

26. Oral pleas barred.-

It is true that the refusal accept an oral pleas of payment will not finally decide the dispute against the judgment-debtor for he would still be entitled to sue the decree-holder for damages for the omission to certify the payment to the court or for refund of the money paid and in such suits he can lead oral evidence. But "What is sought to be made a rule now is that in executor proceedings,with a view to avoid delay, only a certain kind of proof should be accepted. The principle that in execution proceedings special restrictions may justifiably be put on the judgment-debtor's right to plead payment and adjustment had the approval of the legislature when it provided that though the right of suit to recover the amount can be exercised in three years the payment, to be recognized in execution, must have been, made within ninety days.1"

1. Civil Justice Committee Report, p. 388, para. 17.

27. Special form of money order.-

To facilitate the keeping of proper records for this purpose and avoiding mistakes and misunderstandings, it may be necessary to prescribe a special form of money order for payment of decretal amount. The space provided for communications from the payer to the payee may be utilized for providing columns for giving necessary particulars, such as the number of the suit the amount remitted, whether it is towards the principal or interest or costs. Such forms have been prescribed in some States like Bihar.

28. No limitation on certain cases.-

We also recommend a consequential amendment proposed by the Uttar Pradesh Committee. If the payment of the decretal amount or part thereof is made through a bank or post office, the limitation of ninety days prescribed for the judgment-debtor to get the payment certified may be deleted. It should also be provided that an adjustment not made in writing should not be recognized. We therefore recommend an amendment of sub-rule (3) of rule 2 in the manner made by the Allahabad High Court which reads as follows:

"Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by any court executing the decree."

29. Contents of application (Modification of tabular form).-

Rules 11 to 14 of Order XXI state the particulars to be given in an application for execution. We consider that some of the particulars required in the tabular form given under rule 11, sub-rule (2) are unnecessary and may well be omitted. The High Courts of Allahabad, Madras and the former High Court of Nagpur provide by their rules that when a certified copy of the decree is filed with the application under sub-rule (3), clauses (b), (c) and (h) (the names of the parties, the date of the decree and the amount of costs) need not be furnished.

We think that clauses (d) and (f) should also be omitted as the particulars relating to appeals and previous applications for execution can easily be ascertained from the register of suits kept under Order IV, rule 2. The particulars in clause (f) were presumably necessary in order to ascertain whether the application was filed within the period of limitation under Article 182. If that Article is omitted, as recommended by us clause (f) would be unnecessary. We therefore recommend that the rule 11(2) should be amended by providing that clauses (b), (c) and (h) need not be filled in when a copy of the decree is annexed to the application and that clauses (d) and (f) of the rule may be omitted.

30. Rejection of petition.-

Rule 17 prescribes the procedure to be followed in receiving the application for execution. If any of the requirements of rules 11 to 14 are found not to have been complied with, the rule gives to the court power either to reject the application or to allow the defect to be remedies then and there or within a time to be fixed by it. This option to the court to reject the application leads to petty corruption amongst the staff of the executing branch and it is stated that the executing clerk often rejects the applications on trivial grounds.

To prevent delays, several High Courts have amended rule 17 taking away the court's discretion to reject the application summarily and providing that the courts should either allow the defect to be remedies there and then or within a time to be fixed and reject the application only if the defect is not remedies within the time allowed. A general provision to this effect may be made by a suitable amendment.

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