AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 14

46. Claims and objections to attachment.-

We now come to a group of rules in Order XXI, the implication of which causes long delays in execution proceedings. These are rules 58 to 63 relating to the investigation of claims and objections to the attachment of property and rules 97 to 103 relating to investigation into resistance or obstruction to the delivery of possession of immovable property to the decree-holder or auction purchaser. The objections of a judgment-debtor or his representative to the attachment of any property fall within the scope of section 47 while rules 58 to 63 deal with objections to the attachment raised by third parties.

Under rule 58 a claim may be preferred or objection raised to the attachment of any property in execution on the ground that such property is not liable to attachment. The court has to investigate into such claim or objection and pending this inquiry the sale may be postponed. The scope of the inquiry under rules 58 to 61 is limited, "the Code does not prescribe the extent to which the investigation should go; and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases it may also be the most prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time leaving the aggrieved party to bring the suit which the law allows to him."1

The rules provide for a summary investigation into possession of the property as distinguished from a suit as to the title to it. The result of such an enquiry by the executing court is conclusive subject however to the result of a suit which the aggrieved party is entitled to bring under rule 63.

1. Sardhari Lal v. Ambika Pershad, ILR 15 Cal 521 (526) (PC).

47. Resistance or obstruction to delivery of possession.-

Similarly the court has to make an investigation in a summary way whenever the holder of a decree for possession of immovable property or the purchaser of any such property at a sale in execution of a decree is resisted or obstructed by any person in obtaining possession. Under rule 100 where any person other than the judgment-debtor is dispossessed of such property by the holder of a decree or the purchaser in execution, he can also make an application to the court complaining of such dispossession.

If the court finds that the resistance or obstruction was occasioned without any just cause by the judgment-debtor, or any person acting at his instigation, it has to direct the applicant to be put into possession and may also order the obstructor to be detained in civil prison if there is further resistance or obstruction.

If, however, the resistance, or obstruction is caused by a bona fides claimant claiming to be in possession on his own account or on account of a person other than the judgment-debtor, the application has to be dismissed. The result of such an inquiry is conclusive subject however to the result of any suit which any party, not being a judgment-debtor against whom, an order has been made, is entitled to bring.

A very substantial body of opinion has agreed that the claims or objections to attachment under rule 58 and the resistance or obstruction to the delivery of possession under rule 97 and the subsequent suits filed under rules 63 and 103 are often frivolous and are made at the instigation of the judgment-debtor, who takes advantage of these provisions as one more opportunity for defeating or delaying the decree-holder or of postponing the sale of his property. In order to control such proceedings it has been suggested that while retaining the existing provisions without any change, the court-fees for suits filed under rule 63 or 103 should be substantially raised.

It was also suggested that the party making such a claim or objection to attachment or delivery of possession should be required to deposit cash security refundable to him if he succeeds and that if he fails, three-fourths of the cash security should go to the opposite party and the balance forfeited to Government. Yet another suggestion was the reduction of the limit of time for filing such applications and suits. Finally, it was suggested that these claims and objections should be inquired into fully by the executing court whose order should be subject to only one appeal and that suits should be barred.

48. Postponement of sale unnecessary.-

We are convinced that a very large proportion of the proceedings taken under these provisions are instituted only as a means of gaining time and postponing the sale. Rule 58, sub-rule (2) gives to the court a discretion to postpone the sale pending an investigation and a great deal of laxity prevails in the exercise of this discretion. We do not see why the sale should be postponed in such cases.

What passes at a court sale is only the right, title or interest of the judgment-debtor so that even if the sale is held during the inquiry the interests of the claimant or objector, if any, will not be prejudiced by it. The purchaser will get nothing more than the right, title or interest of the judgment-debtor, whatever that interest may be. We are of the view that in such cases the interests of claimant will be sufficiently protected by not making the sale absolute and by postponing delivery of possession until the conclusion of the inquiry.

49. Suits under rules 63 and 103 to be barred.-

In regard to suits under rule 63 or 103 we have no hesitation in accepting the suggestion which has been made by a number of persons including some eminent members of the judiciary that the executing court itself should make a full inquiry into the ultimate right and title of the parties and not merely a summary inquiry into possession leaving it open to the aggrieved party to file a suit. Such a recommendation has been made by us in our report on the Limitation Act.1

The order passed in such inquiries should be deemed to be a decree within the meaning of section 2, sub-section (2) as in the case of orders, under section 47 and be subject to such appeals as are allowed by the law relating to appeals from decrees. We recommend that the law be amended in this manner and the provisions saving or enabling suits to be filed in rules 63 and 103 be omitted.

1. Report, para. 149.

50. Proclamation of sale.-

Rules 64 to 73 contain provisions for the sale of property generally. We have dealt with the notice of the proclamation of sale to be given to the judgment-debtor under rule 66. The proclamation which is drawn up under sub-rule (2) of rule 66 must contain several particulars relating to the description of the property. Under clause (e) of sub-rule (2) the court is required to state in the proclamation every thing material for a purchaser to know in order to judge of the nature and value of the property.

The court has to make an approximate estimate of the market value of the property to be stated in the proclamation. This requirement has been known to cause much trouble and delay. Under the present law, an omission to state the correct market value of the property or an undervaluation of it has been regarded as a material irregularity affecting the sale under rule 90. In practice, a judgment-debtor who is intent upon postponing the sale of property allows the sale to be held, knowing that the particulars as regards the valuation in the proclamation are defective and thereafter makes an application under rule 90 for setting aside the sale on the ground of a material irregularity in publishing or conducting the sale.

These proceedings involve delays which may well be avoided by omitting the item of the court's estimate of the price. The Patna High Court has made what is in our view a very wholesome and salutary amendment by adding a proviso to clause (e) of sub-rule (2) of rule 66 as follows:

"Provided that no estimate of the value of the property other than those, if any, made by the decree-holder and the judgment-debtor respectively together with the statement that the court does not vouch for the accuracy of either shall be inserted in the sale proclamation."

Similar amendments have also been made by the High Courts of Calcutta, Madras, Orissa and Punjab. We are of the view that clause (e) may itself be amended on these lines.

51. Setting aside of sale.-

Under rule 90 a sale of immovable property in execution a decree can be set aside on the ground of material irregularity or fraud in publishing or conducting the sale. The right to apply under this rule is given to the decree-holder or to any person entitled to a share in the rateable distribution of assets or whose interests are affected by the sale. It is generally accepted that a large percentage of applications made by the judgment-debtors to set aside sales under this rule are frivolous and are filed with the object of delaying the delivery of possession.

It is therefore necessary to make an amendment in rule 90 by providing that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who did not attend, though given notice to appear at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up, unless an objection was taken by him before the sale was held. Following the recommendations of the Uttar Pradesh Judicial Reforms Committee the High Court of Allahabad has added sub-rule (2) to rule 90 providing for an award of costs to the decree-holder or auction-purchaser or both as against the party whose application under rule 90 has been rejected.

Another useful amendment made by the Allahabad High Court in sub-rule (1) is to the effect that the application to set aside a sale shall not be entertained unless the applicant deposits such amount not exceeding 121/2 per cent. of the sum realized at the sale or furnishes such security as may be fixed by the court, except when the court for reasons to be recorded dispenses with the requirements of this clause. This provision is presumably made in order to compensate the purchaser. Under rule 89 the applicant at whose instance the sale is set aside has to deposit 5 per cent. of the purchase money for payment to the purchaser. We recommend that a provision similar to that in the Allahabad amendment be inserted in rule 90. An amendment of the rule on these lines would, in our opinion, serve to control the filing of frivolous applications.

52. Minor amendments.-

Some minor amendments to other rules of Order XXI may now be referred to.

53. Rule 31.-

Under sub-rule (2) of rule 31, movable property which has remained under attachment for six months may be sold on the application of the decree-holder if the judgment-debtor has not obeyed the decree. The period of six months may be reduced to three months. This has been done by a majority of the High Courts.

54. Rule 32.-

Sub-rule (3) of rule 32 provides for the sale of property attached in execution of a decree for restitution of conjugal rights or for an injunction if the attachment has remained in force for one year and the judgment- debtor has not obeyed the decree. The period of one year appears to us to be too long. The High Court of Kerala has reduced it to six months and other High Courts like those of Allahabad, Calcutta and Patna have reduced the period to three months. In our opinion, a period of six months would be sufficient.

55. Rule 68.-

Rule 68 provides for a time limit of thirty days and fifteen days respectively for the sale of immovable and movable property calculated from the date of publication of the proclamation of sale under rule 66. This limit may be reduced to fifteen days in the case of immovable property and seven days in the case of movable property.

56. Rule 69.-

Under sub-rule (1) of rule 69 the court has power to adjourn a sale to a further date. Under sub-rule (2) if it is adjourned for a longer period than seven days a fresh proclamation is necessary. The High Courts of Bombay, Calcutta, Madras, Punjab and Allahabad have extended this period to thirty days. Such an amendment should be of general application. Similarly under sub-rule (2) a fresh proclamation is necessary unless the judgment-debtor consents to waive it.

The High Courts of Patna and Allahabad have amended this provision by providing that the consent of the judgment-debtor may be dispensed with if he has failed to attend in answer to the notice issued under rule 66. We have recommended the omission of this notice and have recommended that the prohibitory order under rule 54 itself should contain a direction to the judgment-debtor to appear on a given date to take notice of further proceedings. We suggest that the judgment-debtor's consent may be dispensed with in the event of his failure to appear even under the procedure suggested by us.

57. Rule 72.-

Rule 72 debars a decree-holder from bidding or purchasing property at a sale in execution of a decree without the express permission of the court. This rule frequently causes delay when the warrant of sale is returned unexecuted in the absence of bidders. There appears to be little justification for the continuance of this rule. The amendment of the rule made by the Patna High Court is in substance a reversal of the original rule. Under the Patna amendment, no decree-holder is precluded from bidding or purchasing a property unless an express order to that effect is made by the court. We would, however, recommend the adoption of the amendment of sub-rule (I) made in the former North-West Frontier Province to the 'following effect:

(1) "The holder of a decree in execution of which the property is sold, shall be competent to bid for or purchase the property without express permission of the Court, provided that the Court may on application of the judgment-debtor and for sufficient cause debar him from so bidding or purchasing."

58. Neglect of execution work.-

We have examined some of the defects in the execution procedure which cause delay. Apart from these defects, however, execution work also suffers from the neglect to which it is subject in most of the courts. Under the system obtaining in a very large number of States, each court in a particular local area executes its own decrees. If there are more than one civil court for a given area, the aggregate execution work for that area is divided amongst all the courts, each court doing a portion of the work. The main complaint against this system is that the presiding officers do not pay to this branch of their work the attention that it deserves and leave it to be managed by their clerks.

Not only does this result in delay but it also leads to corruption in the clerical and process-serving staff dealing with execution. A not entirely unfounded belief prevails among judicial officers that their capacity is judged by the number of contested suits disposed of by them. Obsessed with this notion, the presiding officers concentrate on the disposal of suits and all routine execution work is left to the execution clerk.

All first and subsequent orders in execution are sometimes written out by the clerk and put up for signature before the judge who seldom looks into each matter before putting his initials. Matters involving contest are often put aside in the unrealized hope of the judge being able to find time to deal with them at some future date. The manner in which the work of execution suffers by reason of the judicial officers' inability to apply their minds to the matter at successive stages is amply illustrated by the example in the Appendix to this

59. It is necessary to impress upon judicial officers that their work would be judged as a whole and not merely by the quantum of contested original suits disposed of by them. The High Court and the District Judges should impress upon judicial officer that execution work is as much a part of their regular work as the trial of suits and that any neglect of such work appearing at the time of inspection or noticed otherwise would be a matter for serious notice. Each officer should set apart at least half an hour each day to attend to first and subsequent orders in execution applications in which there is very little or no contest, while half a day per week should be reserved for contested work. Our recommendations for expediting disposal of original suits such as methodical arrangement of work and avoidance for unnecessary adjournments will apply also to proceedings in execution.

60. Single executing court.-

An effective method of assuring speedy and effective execution of decrees is to concentrate all execution work for a given area as far as possible in the hands of a single officer. The opinion elicited on the desirability of setting up a single executing court for a given local area is evenly divided. Obviously the question of setting up such a court does not arise in a tehsil headquarters where there is only one civil court functioning. After careful consideration we have reached the conclusion that it is not necessary to establish a separate court merely for the purpose of the execution of decrees for any local area.

But wherever there are more courts than one of the same class, we are of the opinion that a more effective way of dealing with execution would be to allow only one court of each class to do the work of execution in addition to its normal civil work. We understand that wherever this experiment has been tried it has met with a fair measure of success. In order to avoid difficulties as to pecuniary jurisdiction we suggest that the work should be entrusted to the officer having the highest jurisdiction.



Reform of Judicial Administration Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys