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CODE OF CIVIL PROCEDURE
MODES OF EXECUTION-
Execution is the last stage of any civil litigation. There are three stages in litigation:
1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into existence where the civil litigation has been instituted with the presentment of the plaint. The decree means operation or conclusiveness of judgment. Implementation of a decree will be done only when parties have filed an application in that regard. A decree or order will be executed by the court as facilitative and not an obligation. If a party is not approaching the court, then the court has no obligation to implement it suo-moto. A decree will be executed by the court which has passed the judgment. In exceptional circumstances, the judgment will be implemented by another court which is having competency in that regard.
Execution: Meaning
The term “execution” has not been defined in the code. The expression “execution” means enforcement or implementation or giving an effect to the order or judgment passed by the court of justice. Simply “execution” means the process for enforcing or giving effect to the judgment of the court. Execution is the enforcement of decrees and orders by the process of the court, so as to enable the decree-holder to realize the fruits of the decree. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by the judgment, decree or order.
MODES OF EXECUTING DECREES
The Code lays down the following modes for execution of differenttypes of decrees:
(I) DELIVERY OF PROPERTY
(a) Movable property: Section 51(a), Rule 31Where the decree is for any specific movable property, it may be executed
(i) by seizure and delivery of the property; or
(ii) by detention of the judgment-debtor; or
(iii) by the attachment and sale of his property; or
(iv) by attachment and detention both. The words specific movable property do not include money and, therefore, a decree for money cannot be executed under Rule 31.
Again, for the application of this rule the property must be in the possession of the judgment-debtor. Where the property is in the possession of a third party, the provisions of this rule do not apply and the property cannot be attached.
(b) Immovable property: Rules 35-36Rules 35 and 36 provide the mode of executing decrees for possession of immovable property to the decree-holder. Rules 35 and 36 correspond to Rules 95 and 96 which lay down the procedure for delivery of possession to the auction-purchaser who has purchased the property in an auction-sale. Where the decree is for immovable property in the possession of the judgment-debtor or in the possession of the person bound by the decree, it can be executed by removing the judgment-debtor or any person bound by the decree and by delivering possession thereof to the decree holder.
If the decree-holder satisfactorily establishes identity of decretal property, the decree must be executed by the court by putting the decree-holder in possession thereof. Possession delivered in this manner is known as khas or actual possession. But if such property is in the possession of a tenant or other person entitled to occupy the same and not bound by the decree, the delivery of the property should be made by affixing a copy of the warrant at some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place the substance of the decree regarding the property. This is known as symbolical or formal possession.
Where the decree is for joint possession of immovable property, possession can be delivered by affixing a copy of the warrant at some conspicuous place of the property and proclaiming by beat of drum, or by other customary mode at some convenient place, the substance of the decree.
Where the person in possession and bound by the decree does not afford free access, the officers of the court may, after giving reasonable warning and facility to a pardanashin lady to withdraw, break open into the building and put the decree-holder in possession thereof.
The expression "any person bound by the decree" includes the judgment-debtor as well as any other person bound by such decree. A sub-tenant is bound by a decree of ejectment passed against a tenant.Similarly, a decree passed against a benamidar binds the real owner. The executing court can also award mesne profits as an integral power to order delivery of possession and consequential an integral retention of possession of property.
(2) Attachment and sale of property: Section 51(b)Section 51(b) empowers the court to order execution of a decree by attachment and sale or by sale without attachment of any property.The court is competent to attach the property if it is situated within the local limits of the jurisdiction of the court. It is immaterial that the place of business of the judgment-debtor is outside the jurisdiction of the court.The words attachment and sale in clause (b) of Section 51 are to be read disjunctively. Hence, the attachment of the property is not a condition precedent. Sale of property without an attachment is not void or without jurisdiction and does not vitiate such sale. It is merely an irregularity.An order of attachment takes effect from the moment it is brought to the notice of the court. Rule 54 provides for the attachment of immovable property and the procedure for the proclamation of such attachment. The object of Rule 54 is to inform the judgment-debtor about the attachment so that he may not transfer or create encumbrance over the property thereafter.
(3) Arrest and detention: Section 51(c)It is for the decree-holder to decide in which of the several modes he will execute his decree. One of such modes of executing a decree is arrest and detention in civil prison of the judgment-debtor. However, clause (c) should be read subject to the proviso to Section 51.The proviso lays down that where the decree is for payment of money, execution by detention in civil prison should not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be so detained, the court for reasons to be recorded in writing is satisfied (i) that the judgment-debtor with the Object of obstructing or delaying the execution of the decree (a) is likely to abscond or leave the local limits of the jurisdiction of the court; or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, Or committed any other act of bad faith in relation to his property; or (ii) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same; or (iii) that the decree is for a sum which the judgment-debtor was bound in a fiduciary capacity to account for.
These provisions are mandatory in nature and must be strictly complied with. They are not punitive in character. The object of detention of a judgment-debtor in a civil prison is twofold. On the one hand, it enables the decree-holder to realize the fruits of the decree passed in his favor; while on the other hand, it protects the judgment-debtor who is not in a position to pay the dues for reasons beyond his control or is unable to pay. Therefore, mere failure to pay the amount does not justify arrest and detention of the judgment-debtor inasmuch as he cannot be held to have neglected to pay the amount to the decree-holder.
(4) Appointment of receiver: Section 51(d)One of the modes of execution of a decree is the appointment of a receiver. Execution by appointment of a receiver is known as equitable execution and is entirely at the discretion of the court. It cannot be claimed as of right. It is thus an exception to the general rule stated above that it is for the decree-holder to choose the mode of execution and that the court has no power to refuse the mode chosen by him.
The appointment of a receiver in execution proceedings is considered to be an exceptional remedy and a very strong case must be made out in support of it. The decree-holder before resorting to this mode must show that there is no effective remedy for obtaining relief by the usual statutory modes of execution. The court also must be satisfied that the appointment of a receiver is likely to benefit both the decree-holder and the judgment-debtor rather than a sale of the attached property.It has also to be satisfied that the decree is likely to be realised within a reasonable time from the attached properties so that the judgment-debtor may not be burdened with property while he is deprived of the enjoyment of it. Again, this mode of execution cannot be resorted to in order to circumvent the statutory provisions.
Thus, the decree-holder cannot be permitted to pray for the appointment of a receiver in respect of property which has been expressly excluded from attachment by the statute. The provident fund amount standing to the credit of a retired government servant is exempt from attachment and sale under the provisions of the Provident Funds Act, 1925. Since no execution can lie against such amount, no receiver can be appointed for the said sum. A receiver can be appointed even before the attachment of the property and even in respect of the property situate outside the territorial jurisdiction of the court.
This section, however, should be read with the provisions of Order40 Rule 1 regarding the appointment of a receiver and his powers.
(5) Partition: Section 54Where a decree is for partition or separate possession of a share of an undivided estate assessed to the payment of revenue to the Government, execution should be effected by the Collector.The object underlying this provision is twofold: firstly, the reve. nue authorities are more conversant and better qualified to deal with such matters than the civil courts, and secondly, the interests of the Government with regard to the revenue-paying estate would be better safeguarded by the Collector than by the court.
(6) Cross-decrees and cross-claims: Rules 18-20Rules 18 to 20 of Order 21 deal with set-off of cross-decrees and cross-claims.-
(a) Cross-decrees: Rules 18, 20
(i) Doctrine explained- Rule 18 enacts that cross-decrees for the payment of money shall be set-off against each other. If the amounts under the two decrees are equal then both the decrees shall satisfy each other and full satisfaction will be recorded and no payment is required to be made by any party and no execution will be allowed to be taken out.If, on the other hand, the amounts under the two decrees are unequal then full satisfaction will be recorded upon the decree for the smaller amount, and part satisfaction upon the decree for the larger amount, and the execution will be allowed only for the balance.
(ii) Object.-The underlying object of this rule has been explained by Their Lordships of the Privy Council in the case of Hazari Ram v. Rai Bahadur Bansidhars, in the following words, 'It is true that under Rules 18 to 20, the set-off of decrees is not a discretionary matter depending upon equitable considerations such as may emerge from the circumstance that both decrees arise out of the same transaction. Whatever they arise from, circuitry of proceedings thereunder can be avoided and should be avoided. This is the principle of the rules."
(iii) Extent and applicability. Over and above ordinary suits, the provisions of Rules 18-20 also apply to mortgage suits. The court has also power to allow set-off to cases not strictly covered by Rule 18.
(iv) Conditions- In order that this rule may apply, the following conditions must be satisfied:
(1) The decrees must be for the payment of different sums of money;
(2) They must have been passed in separate suits;
(3) The decree-holder in one decree must be the judgment-debtor in the other decree; and
(4) Each party must fill the same character in both the suits.
(5) Both the decrees must be capable of execution by the same court at the same time.
(6) Applications should have been made to the court for execution by the same court at the same time.
(v) Test- In deciding whether the two decrees are cross-decrees,one must look at the substance and not the form.
(b) Cross-claims: Rules 19-20
(i) Doctrine explained.- Rule 19 provides for a set-off in the case of cross-claims in the same decree. It lays down that if the two sums in cross-claims under the same decree are equal, satisfaction of each shall be entered in the decree and no execution shall be allowed to be taken out. If the two sums are unequal, the party entitled to the larger sum may take out execution for the balance
(ii) Object. -The principal object of Rule 19 is to prevent each side executing a decree in respect of sums due under the same decree. This is a rule of procedure based on the principle of equity that a party who is liable to pay under a decree cannot be allowed to recover under that decree if the amount which he is entitled to recover is smaller than the amount which he is liable to pay.
(iii) Extent and applicability. -The provisions of Order 21 Rules 18-20 apply to ordinary suits, mortgage suits and other suits not covered by the provisions of the Code.
(iv) Conditions. -For the applicability of the rule, it must be shown that the party seeking the relief to recover a sum of money under the very same decree which is sought to be executed by the opposite party.To put it differently, there should be two rival claims by contesting parties against each other arising out of one and the same decree sought to be executed by one against the other party.
(v) Material date for satisfaction.- The material date for the satisfaction of the decree is the date of decree itself.
(7) Payment of money: Rules 2, 30
(a) Nature and scope
A decree for payment of money (simplicitor or as an alternative to some other relief) may be executed by attachment and sale of property of the judgment-debtor or by his detention in civil prison or by both.The provision is not exhaustive and does not override other provisions of the Code. Hence, a decree for payment of money can be executed by the appointment of a receiver. Since rateable distribution of assets is one of the recognized modes of execution of a decree for payment of money, the same can also be invoked by the decree-holder.
(b) Modes of paying money
All money payable under a decree shall be paid either
(i) by depositing in the executing court; or
(ii) out of court to the decree-holder; or
(iii) as per the direction of the court which has passed the decree. The judgment-debtor is bound to pay the decretal debt in one of the above modes.
(c) Payment in court
Where the payment has to be made in court, it may be made either by depositing the decretal amount in court or by a postal money order or through a bank. If the court is closed on the last day for making such payment, the maxim lex non cogit ad impossibilia (the law does not compel a man to do that which he cannot possibly perform) will apply and the payment can be made on the day the court reopens. This is an enabling provision for the benefit of judgment-debtors.
Where payment is made by depositing the decretal amount in the executing court, or as per the direction of the court, which has passed the decree, the judgment-debtor shall give notice of such payment to the decree-holder through court or directly to him by registered post acknowledgment due. On the amount being paid, interest shall cease from the date of service of the notice.
(d) Payment out of court
A payment to the decree-holder out of court also discharges the decree.Such payment may be made by postal money order or through a bank or by any other mode wherein payment is evident in writingWhen the payment is made out of court, the following particulars must be accurately stated
(i) The number of the original suit;
(in) The names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;
(iii) How the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;
(iv) The number of the execution case of the court, where such case is pending; and
(v) The name and address of the payer.
This provision has been made with a view to furnish necessary details to the decree-holder as to the payment made by the judgment-debtor. A payment made in accordance with Rule 1 of Order 21 discharges the judgment-debtor from decretal dues. On the amount being paid, interest shall cease from the date of payment.
Where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to run from the date of such refusal. But the Code requires a certificate of payment or adjustment by the decree-holder and recording of such payment or adjustment by the executing court. It also contemplates an application by the judgment-debtor informing the court of payment or adjustment. In that case, the court may give notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified. If the decree-holder fails to show cause against such certification, the court shall record payment or adjustment.
(e) Certification of payment
No payment or adjustment can be recorded by the court at the instance of the judgment-debtor unless such payment has been made either in the court executing the decree, or as per the direction of the court which has passed the decree, or out of court to the decree-holder by postal money order or through a bank or by any other mode wherein by anent is evident in writing; or such payment or adjustment is proved by documentary evidence, or such payment or adjustment is admitted by or on behalf of the decree-holder in his reply to the notice by the court or before the court.
The object of certification is to ensure that the executing court should not be troubled with disputes with regard to payment or adjustment out of courts. The provision also seeks to avoid fraud in respect of pay. ment made out of court.
(f) Effect of payment
A payment made in accordance with the provisions of the Code operates as a valid discharge of the decree against the judgment-debtor.When interest is awarded on the decretal amount by the court, it will cease to run on the sum deposited in the court or paid to the decree-holder or to any person as per the direction of the court.
(g) Uncertified payment
The Code prohibits the executing court from recognising any payment or adjustment which has not been certified or recorded. The rule is mandatory and prohibition is absolute. The bar applies as much to a total discharge as to a partial discharge. Payment or adjustment not certified under Rule 2(3) of Order 21 would not be recognized by the executing court. It is, however, open to the judgment-debtor to contend before the executing court in answer to an execution application that the decree was satisfied and nothing remained to be paid to the decree-holder.
(8) Specific performance of contract: Rule 32Where a decree is for specific performance of a contract, and the judgment-debtor wilfully disobeys it, it may be executed by attachment of his property, or by his detention in civil prison, or by both.A decree for specific performance creates mutual rights and liabilities in favour of both the parties. The defendant is as much entitled to enforce the decree as the plaintiff. Where the decree does not specify the time for performance of the contract, it should be performed within reasonable time." Even if the decree for specific performance does not provide for delivery of possession, the court can deliver possession as incidental to the execution of the sale deed. A party seeking to execute the decree for specific performance must fulfill the obligations imposed upon him by the decree. If he deposits considerations in the court, he is entitled to have the sale deed executed.Where the party against whom a decree for specific performance has been passed is a Corporation, the decree may be enforced by attachment of the property of the Corporation or, with the leave of the court, by detention in civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(9) Injunction: Rule 32
Where a decree is for injunction, and the judgment-debtor disobeys it, it may be executed by attachment of his property, or his detention in civil prison, or by both.The provision applies to prohibitory as well as mandatory injunctions.Where the party against whom a decree for an injunction has been passed is a Corporation, the decree may be enforced by attachment of the property of the Corporation or, with the leave of the court, by detention in civil prison of the directors or other principal officers thereof, or by both, attachment and detention
(10) Restitution of conjugal rights: Rules 32-33Where a decree is for restitution of conjugal rights, and the judgment-debtor wilfully disobeys it, it may be executed by attachment of his property.
A decree for restitution of conjugal rights cannot be executed by sending the person (husband or wife, as the case may be) to civil prison and the only permissible mode of executing the decree is attachment of the property of the judgment-debtor.Where the parents do not comply with the decree for restitution of conjugal rights, they can be dealt with under this provision." Refusal by wife to live with her husband in unequivocal terms amounts to wilful disobedience. If the judgment-debtor obeys the decree and goes to live with the decree-holder, satisfaction can be entered of the decree. If the judgment-debtor is ready and willing to obey the decree, but the decree-holder obstructs execution thereof without reasonable cause, the court can, at the instance of the judgment-debtor, enter satisfaction of the decree. Where a decree is passed against the husband, the court, either at the time of passing the decree or at any time thereafter, may order that in the event of the decree being disobeyed within the period fixed by the court, the judgment-debtor shall make such periodical payments to the decree-holder (wife) as may be just and proper.The only sanction provided by law is by attachment of property of the defaulting judgment-debtor. This is an inducement offered by the court in an appropriate case to the husband or wife to live together in order to give them an opportunity to settle the matter amicably. It serves a social purpose as an aid to the prevention of break up of marriage.
(11) Execution of document: Rule 34Where a decree is for the execution of a document and the judgment- debtor neglects or refuses to obey the same, the court shall, after giving an opportunity to the decree-holder as well as to the judgment-debtor to prepare a draft of the document in accordance with the terms of the decree, execute a document in the prescribed form. It shall have the same effect as the execution of a document by the party ordered to execute the same.Where the document to be executed does not relate to the subject-matter of the suit, the provision will not apply. A document executed by the court shall be treated as executed by the party himself.Where the decree is for the execution of a document, the executing court has to determine whether the draft document is in conformity with the terms of the decree. The court, for that purpose, may scrutinize the document and may also make alterations in the draft to bring it in conformity with the terms of the decree.An order made under this provision is appealable.
(12) Endorsement of negotiable instrument: Rule 34Where a decree is for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the court shall, after giving an opportunity to the decree-holder as well as to the judgment-debtor to prepare a draft of endorsement in accordance with the terms of the decree, endorse a negotiable instrument in the prescribed form. It shall have the same effect as the endorsement to the negotiable instrument by the party ordered to endorse the same.An order made under this provision is appealable.
(13) Attachment of rent, mesne profits, etc.: Rule 42Where a decree is for unascertained rent, or mesne profits, or any other matter, the court may order attachment of the property of the judgment-debtor before the amount due from him is ascertained. Such attachment, however, cannot affect any interest created in the property prior to the attachment.The expression "any other matter" should be construed ejusdem generis. It covers matters similar to rent and mesne profits. An attachment under this rule is in the execution. It is thus similar to attachment before judgment. A decree-holder applying for attachment under this provision can claim rateable distribution.
(14) Liability of surety: Section 145Where any person has furnished security or given a guarantee
(a) for the performance of any decree or any part thereof; or
(b) for the restitution of any property taken in execution of a decree; or
(c) for the payment of any money, or the fulfilment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon; the decree or order may be executed
(i) if he has rendered himself personally liable, against him to that extent;
(ii) if he has furnished any property as security, by sale of such property to the extent of the security;
(iii) if the case falls under both the clauses, i.e. he has rendered himself personally liable as well as has furnished security, then to the extent specified in clauses (i) and (i) above. The person who has furnished security or given a guarantee shall be deemed to be a party within the meaning of Section 47.
The main object of this provision is to provide a summary remedy for the enforcement of the liability of a surety who has furnished security or given a guarantee for any of the purposes enumerated in the section. It dispenses with the necessity to file a separate suit by the party for whose benefit the security has been furnished or guarantee has been given and enables him to execute the decree against a surety as if he were a party to the suit and a principal debtor.
Where the surety is liable for the fulfilment of conditions imposed by the court, the decree can be executed against him to the extent to which he has been made personally liable under the surety bond.
The liability of a surety is joint and several. Hence, if the creditor seeks to enforce the surety bond against one or some of the sureties, the other surety or sureties will not be discharged. If the decree-holder enters into a compromise with the principal debtor without making the surety a party, the latter is discharged from his liability.
Notice to the surety is a condition precedent to the validity of the proceedings against him. Attachment of the property without notice is illegal. It may be given by the decree-holder, or by the court which passed the decree or by the executing court.
(15) Decree against corporation: Rule 32Where the party against whom a decree for specific performance of a contract or for injunction has been passed is a corporation, and has wilfully failed to obey the decree passed against it, the same may be executed by the attachment of its property or with the leave of the court by detention in civil prison of its directors or other officers or by both.
(16) Decree against firm: Rules 49-50Where a decree has been passed against a partnership firm, it may be executed against (a) any partnership property; (b) any person who has appeared in his own name as a partner, or admitted, or held to be a partner; or (c) any person who has been individually served with a summons as a partner and has failed to appear.If a decree-holder wants to execute a decree against a person other than those mentioned in clauses (b) and (c) as a partner in the partnership firm, the liability of such person may be determined by the court. Such determination operates as a decree.Property belonging to a partnership firm can be attached or sold in execution of a decree passed against the firm or against the partners in the firm as such. Similarly, a decree against a firm as such will not affect any partner therein who has not been served with a summons to appear and answer. The prime object of this provision is to afford an opportunity to such partner of disputing his liability as a partner if he desires to do so.The provisions of Rule 50 of Order 21 should be read with Order 30. The latter deals with the procedure in suits instituted by or against firms, while the former provides the mode of execution of decrees which have been obtained against firms in the firm name.
(17) Attachment of decree: Rule 53Where the property to be attached is a decree either for payment of money, or for sale in enforcement of a mortgage of charge, the attachment can be effected either by the court which passed the decree, or by the executing court by issuing notice to the court which has passed the decree. Other decrees can be executed by issuing notice to the decree-holder, prohibiting him from transferring or changing the property to be attached and also by sending a notice to the executing court to abstain from executing the decree until such notice is cancelled.The provision is intended to prevent the holder of the attached decree from realising and taking away the fruits of the decree and to enable the attaching creditor to come to the court which has passed the decree to apply for execution and thus to safeguard the interests of the attaching creditor also.
(18) Payment of coins or currency notes: Rule 56Where the property to be attached are coins or currency notes, the court may direct that such coins or currency notes or a part thereof sufficient to satisfy the decree, be paid to the decree-holder.
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