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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

Execution is the enforcement by the process of the court of its own decrees.

The decree to be executed is the decree of the court of last instance where an appeal has been preferred. The decree of the original court is merged in the decree of the superior court which alone is executable. Where there is no appeal, the decree to be executed is the decree of the court of first instance.

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Execution of Orders:

Order is the formal expression of any decision of a civil court which is not a decree.

Contempt proceeding:

An order of the High Court in contempt proceedings is an order within the meaning of section 2(14), C.P.C., and can be executed under section 36.

Modes of paying money under decree:

(1) All money, payable under a decree, shall be paid as follows, namely:

(a) By deposit into the court whose duty it is to execute the decree, or sent to that court by postal money order or through a bank; or

(b) Out of court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or

(c) Otherwise, as the court which made the decree, directs.

(2) Where any payment is made under clause (a), or clause (c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the court or directly to him by registered post acknowledgement due.

(3) Where money is paid by postal money order or through a bank under clause (a) or clause (c) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following Particulars, namely,

(a) The number of the original suit;

(b) 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;

(c) How the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;

(d) The number of the execution case of the court, where such case is pending; and

(e) The name and address of the payer.

(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2).

(5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the date of such payment:

Provided that where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to: run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to rim from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be. (Order XXI, Rule 1).

Diverse Modes of Payment of Decretal amount:

Rule 1 of Order XXI is concerned with diverse modes of payment of the decretal amount. Clause (b) of Rule 1 visualises the payment out of court to the decree-holder and such payment should be evidenced by postal money order or through bank or a receipt reduced into writing.

There is absolutely no semblance of indication as to the person who can pay the amount in the -manner postulated in clause (b). Regarding payments under clauses (a) and (c) the judgment-debtor is unable to give notice of such payment to the decree-holder in the manner provided therein. The requirement of furnishing the name and address of the payee in clause 3(e) furnishes a clue to the person who can be payee and such payer is not confined to the judgment-debtor.

The circumstance of the absence of specific mention of judgment-debtor with reference to mode of payment in clause (b) of Rule 1 as distinct from clauses (a) and (c) coupled with the requirement of the name of the payer in sub-rule 3(l) (e) including any person clearly demonstrate that the person other than the judgment-debtor is not precluded from paying the decretal amount.

The decree-holder is concerned with the payment of his decretal amount whatever be the course for such payment. Further, there is no rationale or purpose behind the rigid interpretation of enabling the judgment-debtor or surety alone to set in motion the proceeding for recording satisfaction of the decree. There is no prejudice if any person, whatever may be his concern, seeks satisfaction of the decree on proof of payment of the decretal amount as provided in Rule l.

No modification or variance in decree by executing court:

A court executing a decree shall execute it as it stands. It cannot modify or vary the terms of the decree. But the execution court has the right to construe a decree in the light of the applicable provision of law and if on a construction of the decree in the light of the applicable provisions of law, it found that the deposit made on a certain date was according to law, a deposit in compliance with the terms of the decree, then the execution court was not varying the term of the decree, but executing the decree as it stood after considering the effect of the deposit in the light of the relevant law.

In revision against execution proceedings the High Court cannot give directions by projecting for determination of the rights of third parties. Under revisional powers the execution proceedings cannot be converted into claims and counter claims to which the third person was not a party and judgment-debtor is not entitled the seek for.

Execution court has no power to go behind decree and implead third parties to it.

Objection for vague or execution beyond Parameters:

The decree can be objected to only on the ground that the said decree is either vague or is being executed beyond its parameter and even if any such ground is made out the judgment-debtor can either object by filing the objection as provided in various provisions of the Code of Civil Procedure or if the decree is being executed beyond its parameter the concerned party can file a suit to establish his rights.

Payment out of Court to the decree-holder:

Order XXI, Rule 2, of the Code of Civil Procedure deals with payment out of court to a decree-holder. The rule provides that where any money payable under a decree of any kind is paid out of court or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree, and the court shall record the same accordingly, [Order XXI, Rule 2(1)]. There is no reason to distinguish between a money decree and any other kind of decree for the purpose of recording an adjustment under Order XXI, Rule 2, C.P.C.

The judgment-debtor or any person who has become surety for the judgment-debtor also may, within 30 days of the payment made by him, inform the court of such payment or adjustment (vide Article 125 of the Limitation Act, 1963), and apply to the court to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified and if the decree-holder fails to show cause the court shall record the same accordingly. [Order XXI, Rule 2(2)].

If the decree-holder contests the claim of the judgment-debtor, it is the duty of the court to give judicial decision. Where the objection is filed more than 30 days after the date of adjustment, it cannot be treated as an application for recording the adjustment.

In execution of a decree of eviction of the tenant delivered the possession to the attorney of the landlord. The attorney of landlord permitted to continue in possession as a licensee. This possession is only permission and licensee can be thrown out at any time. Without fresh lease the decree for eviction could not be avoided or superseded or substituted by a licensee.

Formal separate application not necessary when judgment-debtor’s objection to execution is filed within 30 days:

Order XXI, Rule 2(2), C.RC. does not specify any particular form by which the judgment-debtor may inform the Court of the payment, and all that it requires is that the Court should be informed that the judgment-debtor claims that the decree has been satisfied by payment and adjustment and that he should also apply to the Court to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified.

An objection or a counter-statement if filed by the judgment-debtor within 30 days can be regarded as a sufficient compliance of the procedural requirements. No separate application is necessary. The trend of decisions of the Madras High Court clearly shows that the Court has discretion to accept the objection statement of the judgment-debtor as an application for recording satisfaction.

The preponderance of the view of the various High Courts, in spite of divergence in some of them, is that the judgment-debtor’s objection statement could well be regarded as a sufficient compliance, provided it is filed within 30 days.

Clause (2a) of Rule 2 provides that no payment or adjustment shall be recorded at the instance of the judgment-debtor unless:

(a) The payment is made in the manner provided in Rule 1; or

(b) The payment or adjustment is proved by documentary evidence; or

(c) The payment or adjustment is admitted by, or on behalf, of the decree-holder in his reply to the notice under sub-rule (2) of Rule 1 before the court.

Rule (2A) farther provides that a payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any court executing the decree. It is, therefore, to be noted that it is only the executing court that is debarred from recognising such uncertified payment. The bar does not apply to any other court, where a suit for payment may lie.

The policy of the legislature is to prevent a controversy during execution proceedings as to whether the dispute between the parties has been settled.

A certification by the decree-holder under Rule 2 of Order XXI has no period of limitation and can be made at any time and without notice to the judgment-debtor. But an application by the judgment-debtor has to be made to the court within 30 days of the payment or adjustment.

As said earlier, the executing court shall not recognise any payment made outside the court which has not been certified or recorded. But an executing court may make an inquiry with a view to proceeding under section ‘340 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974). A criminal court is also not precluded from enquiring the payment.

The judgment-debtor has the following remedies in case of non-recognition of payment:

1. He may move the court under Rule 2(2) of Order XXI, if limitation has not expired to record the alleged payment or adjustment.

2. He may bring a suit for recovery of damages for breach of the contract represented by the payment or adjustment.

3. He may bring a fresh suit to claim back the money that the creditor has not certified to the executing court.

4. He may file a criminal complaint under section 210 of the Indian Penal Code for fraudulently executing a decree even after satisfaction or may prosecute the decree-holder for giving false statement under sections 191 and 193, I.PC.

The judgment-debtor, however, in such circumstances, cannot sue for a declaration that the decree is satisfied or adjusted; nor can he sue to restrain the decree-holder from executing the decree.

Execution of decree—Payment made out of Court not certified or recorded:

Where plaintiffs had admitted payment of certain amounts by defendants before executing Court. Such admission tantamounted to decree-holders certifying such payment to Court. It was duty of Court to record the same accordingly.

On failure of Court to record it, Article 125 of Limitation Act provides that application to record adjustment or satisfaction of decree would be made within 30 days of date of payment. It was not applicable in such cases, as once executing Court was intimated about receipt of amount by decree-holder it was Court’s duty to record it and no limitation was prescribed for it.

Commencement of Execution Proceedings:

All proceedings in execution are commenced by an application for execution.

Where a decree is for the payment of money the court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor prior to the preparation of a warrant if he is within the precincts of the court. [Order XXI, Rule 11(1)].

Particulars—In Application of Execution in Tabular Form:

Save as above, every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person acquainted with the facts of the case, and shall contain in a tabular form the following particulars:

(a) the number of the suit; (b) the names of the parties; (c) the date of the decree; (d) whether any appeal has been preferred from the decree; (e) what payment, if any, or other adjustment of the matter in controversy has been made between the parties subsequently to the decree; (f) if previous applications have been made for the execution of the decree, the dates of such applications and their results; (g) the amount with interest due upon the decree; (h) the amount of the costs, if any, awarded; (i) the name of the person against whom execution of the decree is sought; and (j) the mode in which the assistance of the court is required, whether

(1) By the delivery of any property specifically decreed;

(2) By the attachment, or by the attachment and sale, or by the sale without attachment, of any property;

(3) By the arrest and detention in prison of any person;

(4) By the appointment of a receiver;

(5) Otherwise, as the nature of the relief granted may require. [Order XXI, Rule 11(2)).

Application for Arrest and Detention of Judgment-debtor with Affidavit:

Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating the ground on which arrest is applied for.

Restitution Proceedings—Assistance of Court:

Where an application for restitution does not prescribe any specific form, a prayer simpliciter of the recovery of the property lost to the applicant is an adequate compliance. It is only when regular execution proceedings are taken out under Order XXI that Rule 11 comes into play.

No doubt, sub-clause (j) is somewhat omni-potent and the decree-holder can seek assistance of the Court by simply saying that assistance should be granted as the nature of the relief would require, but he has to specify something in making such a request. Orders made in restitution proceedings are decrees within the meaning of section 2(2) and even on the bare passing of such a decree the judgment-debtor may choose to obey the same and an application to take further execution proceedings may not arise.

If he does not prefer to adopt such a measure, it would be still open to the party to execute the order as a decree by resorting to the provisions of Order XXI, C.RC. The doors of execution would be open to him till they are closed by the law of limitation.

Application for attachment—Inventory of Movable Property:

Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. [Order XXI, Rule 12].

Application for attachment of Immovable Property— Particulars:

Where an application is made for the attachment of any immovable property belonging to a judgment-debtor it shall contain at the foot

(a) A description of such property sufficient to identify the same;

(b) A specification of the judgment-debtor’s share or interest in such property. (Order XXI, Rule 13).

Notice of the application for execution:

The law does not require any notice to be issued to the party against whom execution is applied for except in the following cases:

1. Where an application for execution is made more than two years

after the date of the decree or more than two years after the date of the last order made on any previous application for execution;

2. Where an application for execution is made against the legal representative of the judgment-debtor;

3. Where an application for execution is made of a decree passed by courts of the United Kingdom or any reciprocating territory; (Order XXI, Rule 22).

4. Where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor, unless where the court is satisfied, by affidavit or otherwise, that, with the object of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court; and

5. Where the interest of the decree-holder has been transferred by assignment.

Sale not to be set aside on the death of the judgment-debtor before the sale but after the service of the proclamation of sale:

Where any property is sold in execution of a decree, the sale shall not be set aside merely by reason of the death of the judgment-debtor between the date of the issue of the proclamation of sale and the date of the sale notwithstanding the failure of the decree-holder to substitute the legal representative of such deceased judgment-debtor, but, in case of such failure, the court may set aside the sale if it is satisfied that the legal representative of the deceased judgment-debtor has been prejudiced by the sale. (Order XXI, Rule 22-A).

Who may apply for execution?

Where the decree has been passed jointly in favour of persons more than one, anyone or more of such persons may apply for the execution of the whole decree for the benefit of them all, unless the decree imposes any condition to the contrary. (Order XXI, Rule 15).

Where the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the court which passed it. In case of transfer by assignment notice of the application for execution shall be given to the transferor and the judgment-debtor and the decree shall not be executed until the court has heard their objections, if any, to its execution. (Order XXI, Rule 16).

Execution sale remains subject to order passed by the court. In sale for arrears of tax owed to Municipal Council, the court permitted it with condition that it should not be confirmed before 15 days and if tax-payer before the expiry of one month furnishes security or deposits entire amount due, sale will be cancelled. The tax-payer deposited entire amount due within one month, sale is annulled the very day tax due was deposited and it could not be confirmed.

Legal Representative of Decree-holder:

If the decree-holder dies and his legal representatives make an application praying that they may be substituted as representatives under Order XXI, Rule 16, the application is sufficient compliance with the provisions of Order XXI, Rule 16, inasmuch as the prayer in the application amounts to a prayer not only to be brought on record but also to be allowed to proceed with the execution proceeding and no fresh application for execution is, therefore, necessary.

Manager of Joint Hindu Family—Operation of law:

Where the next Karta and manager of a joint Hindu family execute a decree in favour of manager and Karta of joint Hindu family, the transfer will be by operation of law and not by any assignment.

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