MODES OF EXECUTION CIVIL PROCEDURE CODE.

cpc

1. MODES OF EXECUTION (O.21) Sec. 51 enumerates the various modes of the execution of a decree: Delivery of any property specifically decreed. Attachment and sale or sale without attachment of property. Arrest and detention in prison of the judgment-debtor. By appointing a receiver. Such other manner as the nature of the relief granted may require.

2. Order 21 of the Civil Procedure Code (CPC) of India deals with the execution of decrees. Rules 30 to 40 of this order specifically pertain to the execution of money decrees. Rule 30: Decree for payment of money This rule states that a decree for the payment of money can be executed by: Detention of the judgment debtor in civil prison Attachment and sale of the judgment debtor's property Both of the above

3. Rule 31: Decree for specific movable property If the decree is for specific movable property, the court can execute it by: Seizing the property and delivering it to the decree holder Ordering the judgment debtor to deliver the property to the decree holder Detaining the judgment debtor in civil prison Attaching and selling the judgment debtor's property Rule 35: Decree for the delivery of movable property When the decree is for the delivery of movable property, the court can enforce it by: Taking possession of the property and delivering it to the decree holder Ordering the judgment debtor to deliver the property to the decree holder

4. Specific performance of contract/Injunction: Where a decree is for specific performance of a contract or for injunction, and the party against whom it has been passed has wilfully failed to obey it, it may be executed by his detention or by attachment of his property or both (Rule 32). Restitution of Conjugal rights: If a party wilfully fails to obey a decree of Restitution, it may be executed by the attachment of property (Rule 32). If the decree is against the husband, and he does not comply with it in a fixed time, the court may order him to make periodical payments to decree-holder (Rule 33).

5. Rule 34: Decree for execution of document, or endorsement of negotiable instrument This rule applies when a court decree orders a party to execute a document (e.g., a sale deed) or endorse a negotiable instrument (e.g., a check). If the judgment debtor (the person required to execute or endorse) fails to comply with the decree, the decree holder (the person who won the case) can take certain steps. Steps Involved: Draft Preparation: The decree holder prepares a draft of the document or endorsement as per the terms of the decree and submits it to the court. Service of Draft: The court serves the draft on the judgment debtor, along with a notice requiring them to raise any objections within a specified time.

6. Objections: If the judgment debtor has objections, they must submit them in writing within the given timeframe. Court's Decision: The court considers the objections and may approve the draft as it is or make necessary alterations. Final Draft and Execution: The decree holder submits the final draft, incorporating any changes directed by the court, on the required stamp paper (if applicable). The judge or an authorized court officer then executes the document on behalf of the judgment debtor. Registration: If the document requires registration under any law, the court ensures it is registered accordingly.

7. Rule 36: D ecree for delivery of immovable property when in occupancy of tenant This rule deals with the situation where a decree for possession of immovable property is passed, but the property is occupied by a tenant or other person who has a right to occupy it and is not bound by the decree to relinquish possession. Delivery of possession: The court will order delivery of possession to be made by affixing a copy of the warrant in some conspicuous place on the property and proclaiming the substance of the decree by beat of drum or other customary mode at a

8. Occupancy rights: The rights of the tenant or other occupant who is not bound by the decree are protected. The decree holder cannot dispossess such a person. Notice to occupant: The process of affixing the warrant and proclaiming the decree serves as notice to the occupant about the decree and the impending change of possession. Purpose: This rule aims to balance the rights of the decree holder to obtain possession of the property with the rights of tenants and other occupants who are not bound by the decree. It ensures that the process of delivering possession is carried out in a fair and transparent manner, with notice to all concerned parties.

9. Arrest and Detention in the Civil Prison Rule 37: Discretionary Power to Permit Judgment Debtor to Show Cause Against Detention in Prison This rule grants the court the discretion to issue a notice to the judgment debtor, asking them to appear in court and explain why they should not be detained in civil prison for failing to comply with the decree. his notice is typically issued instead of directly issuing a warrant for arrest. Rule 38: Warrant for Arrest to Direct Judgment Debtor to Be Brought Up If the judgment debtor fails to appear in response to the notice under Rule 37, or if the court is satisfied that the judgment debtor is likely to abscond, the court may issue a warrant for their arrest. The warrant will direct the officer executing it to bring the judgment debtor before the court as soon as possible.

10. Rule 39: Subsistence Allowance This rule deals with the subsistence allowance for the judgment debtor while they are detained in civil prison. The decree-holder (the person to whom the money is owed) is required to pay a subsistence allowance to the judgment debtor for their upkeep in prison. Rule 40: Proceedings on Appearance of Judgment Debtor in Obedience to Notice or After Arrest When the judgment debtor appears in court, either voluntarily or after being arrested, the court will hear both parties. The court will give the judgment debtor an opportunity to explain why they should not be detained in prison. After considering the evidence and arguments, the court will decide whether to detain the judgment debtor in civil prison. The court may also, in its discretion, release the judgment debtor on certain conditions, such as furnishing security for their appearance.

11. ARREST AND DETENTION (SECTION 55-59) Section 55: Arrest and Detention General Rule: A judgment debtor may be arrested and detained in civil prison in execution of a decree. Restrictions: No dwelling house shall be entered after sunset and before sunrise for the purpose of making an arrest. The outer door of a dwelling house cannot be broken open unless it is in the occupancy of the judgment debtor and he refuses or prevents access. If the room is occupied by a woman who doesn't appear in public due to customs, she must be given notice and reasonable time to withdraw. If the decree is for payment of money, and the judgment debtor pays the amount and costs of arrest to the officer, he shall be released immediately. .

12. Section 56: Prohibition of Arrest or Detention of Women Women cannot be arrested or detained in civil prison in execution of a decree for the payment of money. Section 57: Subsistence Allowance The State Government may fix scales of monthly allowances for the subsistence of judgment debtors in civil prison. Section 58 of the Code of Civil Procedure, 1908, addresses the detention and release of individuals in civil prison in execution of a decree . This section outlines the conditions under which a person can be detained and the circumstances that lead to their release.

13. Detention periods: For decrees exceeding Rs 5000: A person can be detained for a maximum period of three months. For decrees between Rs 2000-5000: The detention period is limited to six weeks. No detention for decrees under Rs 2000: The law explicitly states that no order for detention shall be made if the total amount does not exceed Rs 2000. Conditions for release: A person detained can be released before the expiration of their detention period under the following conditions: Payment of the amount specified in the warrant for detention to the officer in charge of the civil prison.

14. Full satisfaction of the decree against them. Request from the applicant who initiated their detention. Failure of the applicant to pay subsistence allowance Post-Release Status: A judgment-debtor released under this section does not discharge their debt solely due to release from detention. However, they cannot be re-arrested under the same decree for which they were detained. Section 59: Release on ground of illness This section deals with the release of a judgment debtor from civil prison on medical grounds. It empowers the court to order the release of a judgment debtor who is suffering from a serious illness and is not in a fit state of health to be detained in the civil prison. The section also allows for the release of a judgment debtor on the ground of an existing infectious or contagious disease.

15. Property liable to attachment and sale in execution of decree (Section 60) The following property is liable to attachment and sale in execution of a decree, namely lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundies , promissory notes, govt. securities, bonds or other securities for money, debts, shares in a corporation and save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor or over which, the profits of which he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of judgment-debtor or by another person in trust for him or on his behalf:

16. Provided that the following properties shall not be liable to such attachment or sale, namely: The necessary wearing apparel, cooking vessels, beds and beddings of the judgment debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman; Tools of artisans and, where the judgment-debtor is an agriculturist; his implements of husbandry and such cattle and seed grain as may, in the opinion of the court be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provision of the section 61 of CPC.

17. Houses or other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him Books of account A mere right to sue for damages Any right of personal service Stipends and gratuities allowed to pensioners of the govt. or of local authority or of any other employer or payable out of any service family pension fund notified in the official gazette by the Central govt. or the State govt. in this behalf, and political pensions The wages of labourers and domestic-servants, whether payable in money or kind.

18. Section 61 of the Code of Civil Procedure (CPC) 1908 deals with the partial exemption of agricultural produce from attachment in execution of a decree . Purpose: This section aims to protect farmers and their families by ensuring they have enough agricultural produce for: Cultivation until the next harvest Sustenance of themselves and their families State Government's Power: The State Government can, through an order published in the Official Gazette, declare that a specific portion of agricultural produce (or a class of agricultural produce) is exempt from attachment. This can be a general order applying to all cases or a special order for a specific situation. Scope: This exemption applies to the agricultural produce of the judgment debtor (the person who owes money under the court decree).

19. Section 62 of the Code of Civil Procedure (CPC) in India deals with the seizure of property in a dwelling-house during the execution of a decree. Time Restrictions: No person executing a process for the seizure of movable property can enter a dwelling-house after sunset and before sunrise . This ensures that such actions are not carried out during odd hours, respecting the occupants' privacy and peace. Breaking Open Doors: The outer door of a dwelling-house cannot be broken open unless: The dwelling-house is in the occupancy of the judgment-debtor (the person against whom the decree was passed). The judgment-debtor refuses or prevents access to the dwelling-house. Even after gaining lawful entry, any room door can be broken open if necessary for the seizure .

20. Protection of Women: If a room within the dwelling-house is occupied by a woman who, according to customs, does not appear in public, the person executing the process must: Give her notice that she is free to withdraw. Allow her reasonable time to withdraw. Only after this can the person proceed with the seizure. Section 63 of the Code of Civil Procedure (CPC) in India deals with situations where the same property is attached in execution of decrees by more than one court.

21. Hierarchy of Courts: When multiple courts have attached the same property, the court of the highest grade will ultimately handle the property, its realization (sale), and any claims or objections related to the attachment. Same Grade Courts: If the attaching courts are of the same grade, the court that first attached the property takes precedence. Purpose: Section 63 aims to avoid confusion and conflicting orders when multiple courts are involved in the execution of decrees against the same property. It establishes a clear mechanism for determining which court has the authority to proceed with the sale and distribution of proceeds.

22. Private Alienation of Property After Attachment Section 64 of the Civil Procedure Code (CPC) of 1908 addresses private alienation of property after attachment . It states that any private transfer or delivery of attached property, or any interest therein, is void against all claims enforceable under the attachment.  This provision primarily aims to prevent fraud on decree-holders and protect the rights of attaching creditors who are entitled to satisfaction from the judgment-debtor's assets. Object: The attachment of property aims to notify the judgment-debtor not to alienate the property and the public not to deal with it. The provision ensures that the rights of decree-holders are protected, preventing judgment-debtors from circumventing legal obligations by transferring property after attachment.

23. Effect of Attachment: Section 64 puts a ban on alienation of property after attachment. Any private transfer or delivery of the attached property or any interest, and any payment to the judgment-debtor contrary to the attachment, is void against all claims enforceable under the attachment.

24. ATTACHMENT OF PROPERTY Rule 41: Examination of judgment-debtor as to his property This rule empowers the court to examine the judgment-debtor (the person against whom the decree has been passed) to ascertain the details of their property and assets that can be used to satisfy the decree. This examination can be done orally or through an affidavit. Rule 42: Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined This rule deals with situations where the decree involves matters like rent, mesne profits (profits from property), or other amounts that need to be determined later. In such cases, the court can order the attachment of the judgment-debtor's property even before the exact amount owed is ascertained.

25. Rule 43: Attachment of movable property, other than agricultural produce, in possession of judgment-debtor This rule outlines the procedure for attaching movable property (excluding agricultural produce) that is in the possession of the judgment-debtor. The attachment is typically done by actual seizure of the property, and the attaching officer is responsible for its custody. Rule 43A: Custody of attached movable property This rule elaborates on the custody and preservation of attached movable property. It lays down the responsibilities of the person entrusted with the custody of the property and ensures that it is not misused or damaged. Rule 44: Attachment of agricultural produce Applicability: This rule applies when the property to be attached in execution of a decree is agricultural produce. .

26. Mode of Attachment: The attachment is made by affixing a copy of the warrant of attachment: Growing Crops: On the land where the crop is growing. Harvested Produce: On the threshing floor or place of storage. Additional Copy: Another copy of the warrant must be affixed on the outer door or a conspicuous part of the house where the judgment-debtor resides or carries on business. Purpose: To give notice to the judgment-debtor and the public that the agricultural produce has been attached and is under the custody of the court. To prevent the judgment-debtor from disposing of or removing the attached produce. .

27. Example: A decree is passed against a farmer for non-payment of a debt. The decree-holder seeks to attach the farmer's standing crop of wheat . The court issues a warrant of attachment, and a copy of the warrant is affixed to the field where the wheat is growing and another copy on the door of the farmer's house. The wheat is now under attachment and cannot be sold by the farmer without the court's order. Rule 45: Rule 45 of Order 21 of the Code of Civil Procedure (CPC) 1908, pertains to the attachment of agricultural produce.

28. Rule 45 of the Code of Civil Procedure (CPC) pertains to the attachment of agricultural produce: when a court orders the seizure of such produce. The court will arrange for its safe keeping, for which any application for the attachment of a growing crop must specify when it will likely be ready to be harvested.  The judgment-debtor may tend to, cut, gather, and store the produce to mature or preserve it, and if they fail to do so, the decree-holder may, with the court's permission, do so themselves, recovering the costs from the judgment-debtor.  Agricultural produce attached as a growing crop remains under attachment even after being severed from the soil. If attachment of a growing crop is made long before it is ready to be cut, the court may suspend the order and prohibit removal of the crop until harvest time, ensuring the attachment order is made at least twenty days before harvesting.

29. Rule 46: Attachment of debt, share and other property not in possession of judgment-debtor Order 21 Rule 46 of the Code of Civil Procedure (CPC) provides the basis for garnishee orders, which allow a court to attach a debt in the hands of a third party (the garnishee). This prevents the garnishee from paying the judgment debtor and instead directs them to pay the judgment creditor. The rule applies to debts due to the judgment debtor, except those secured by a mortgage or charge. The attachment serves as a preliminary step to ensure the debt is preserved for satisfying the judgment.

30. GARNISHEE ORDER (Rule 46A- 46I) A Garnishee Order is a court order under Rule 46 of Order 21 of the Code of Civil Procedure (CPC), 1908, that allows a judgment creditor to recover debts from a third party (the garnishee) who owes money to the judgment debtor. Order 21, Rules 46 A to 46 I of the CPC, inserted by the Amendment Act of 1976, detail the procedures in garnishee cases. The primary aim of a garnishee order is to make the debt due by the debtor of the judgment debtor available to the decree holder in execution without needing to file a suit.

31. Rule 46A: Notice to the Garnishee Rule 46A mandates that the court issue a notice to the garnishee once a creditor applies for a garnishee order. This notice directs the garnishee to either pay the debt into court or show cause as to why they should not do so. The application for this notice must be made on an affidavit, where the creditor affirms that the garnishee is indebted to the judgment debtor. This rule ensures that the garnishee has an opportunity to respond before the court orders the payment. Rule 46B: Compliance by the Garnishee If the garnishee fails to comply with the notice issued under Rule 46A—by either paying the debt or appearing before the court to contest the claim—the court may pass an order compelling the garnishee to make the payment. The order is treated as a  decree  against the garnishee, which means that the court can initiate execution proceedings to recover the amount if the garnishee does not voluntarily comply.

32. Rule 46C: Disputed Liability of the Garnishee In cases where the garnishee disputes their liability to the judgment debtor, Rule 46C provides that the court must conduct a trial to determine the issue. The court will treat the dispute as an issue in a suit and decide the garnishee’s liability based on the evidence presented. The garnishee can contest the garnishment on several grounds, such as claiming that they owe nothing to the judgment debtor, or that the debt is contingent and not immediately due. Rule 46D: Third-Party Claims If a third party claims to have a lien or other interest in the debt, Rule 46D requires the court to allow the third party to appear and prove their claim. The court may then decide how to deal with the third party’s interest before issuing the garnishee order.

33. Rule 46F: Payment by Garnishee as Discharge Once a garnishee makes a payment in compliance with the garnishee order, it acts as a valid discharge of their liability to the judgment debtor. Even if the judgment is later reversed or set aside, the garnishee will not be held responsible for the amount paid. Example: If person A owes ₹1,000 to person B, and person B owes ₹1,000 to person C, a garnishee order may direct person A to pay person C instead of person B, because person B owes that amount to person C, who obtained the order.

34. Important Cases Mackinnun Mackenzie & Co. v. Anil Kumar( AIR 1975 CAL 150 ) : The court held that where garnishee disputes their liability, the court must raise an issue and determine the liability of the garnishee. Surinder Nath Kapoor v. Union of India(  AIR 1988 SC 1777 ) : It was held by the Supreme Court that garnishee order is an immense power of the court and it is based on the principles of fairness and used judicially according to the prevailing conditions. Global trust bank Ltd. V. Fargo freight ( AIR 2002 DELHI 13): The court held that Rule 46A not only applies to the debt of the party other than mortgage debt but the negotiable instrument can also be attached by the court. Further, it was observed that it is the prima facie duty of the garnishee to reveal the liability dispute before the court of law. :

35. Rule 47: Deals with the attachment of movable property in the possession of the judgment debtor: Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way Rule 48: Attachment of salary or allowances of servant of the Government or railway company or local authority: This rule specifically addresses the attachment of salaries and allowances for public servants. It allows a court to order that a portion of an employee's salary be withheld to satisfy a debt. The court can direct this withholding either in a lump sum or through monthly installments. .

36. Rule 48A: Attachment of salary or allowances of private employees: When a court needs to recover money from a private employee's salary or allowances, it can order that the money be taken from the salary or allowances. The court order can stipulate that the money be taken in one lump sum or in monthly installments, as the court deems appropriate.  Upon receiving the court's order, the person responsible for paying the employee must comply with the directive. If a portion of the employee's salary is already being withheld due to a previous attachment order, the disbursing officer must return the subsequent order to the court, providing full details of the existing attachment.

37. Rule 49: Attachment of partnership property: states that property belonging to a partnership cannot be attached or sold in execution of a decree unless the decree is against the partnership firm itself or against the partners as a group. This means that individual partners' properties cannot be seized solely based on debts incurred by the partnership unless specific legal provisions are met. If a creditor has a judgment against an individual partner, they can request the court to charge that partner's share in the partnership property and profits. The court may appoint a receiver to manage this share and can order the sale of that interest if necessary. Rule 50: Execution of decree against firm: Execution may be granted Against any property of the partnership. Against any person who has appeared in their own name under Rule 6 or Rule 7 of Order XXX, or who has admitted on the pleadings that they are a partner, or who has been adjudged to be a partner. Against any person who has been individually served as a partner with a summons and has failed to appear

38. If a decree-holder seeks to execute the decree against a person not mentioned in sub-rule (1) clauses (b) and (c), as a partner in the firm, they may apply to the Court for permission. The court may grant such leave where the liability is not disputed. Where such liability is disputed, the court may order that the liability of such person be tried and determined. Rule 51: Attachment of Negotiable instruments: Where the property is a NI not deposited in a court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into the court and held subject to further orders of the court.

39. Rule 52: Attachment of property in custody of court or public officer Applicability: This rule applies when the property to be attached is already in the custody of a court or a public officer. This could be due to various reasons, such as the property being involved in another legal case or being held by a government official. Mode of Attachment: The attachment is made by issuing a notice to the court or public officer who has custody of the property. This notice requests them to hold the property subject to the further orders of the court that issued the attachment order. Determination of Claims: If the property is in the custody of a court, any disputes regarding ownership or priority between the decree-holder and any other person (excluding the judgment-debtor) will be resolved by that court.

40. Rule 53: Attachment of Decrees When the property to be attached is a decree for the payment of money, or for sale in enforcement of a mortgage or charge, the attachment shall be made as follows: If the decrees were passed by the same Court, then by Order of such Court If the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until the court which passed the decree sought to be executed cancels the notice, or the holder of the decree sought to be executed, or his judgment-debtor with the previous consent in writing of such decree-holder, or with the permission of the attaching Court, applies to the Court receiving such notice to execute the attached decree.

41. Rule 54: Attachment of immovable property Prohibitory order: When attaching immovable property, the court issues an order that prohibits the judgment-debtor from transferring or charging the property in any way. The order also prevents anyone from benefiting from such transfer or charge. Notice to judgment debtor: The order requires the judgment-debtor to attend court on a specified date to be informed about the date for settling the terms of the sale proclamation. Proclamation of the order: The order must be proclaimed at a location on or near the property via a customary method such as beat of drum. A copy of the order is affixed to a conspicuous part of the property, the court-house, the office of the Collector of the district (if the land pays revenue to the government), and the office of the Gram Panchayat if the property is in a village.

42. Purpose: The mandatory prohibition under sub-rule (1) of Rule 54 of Order 21 is intended to ensure proper enforcement of the decree. Continuation of Attachment: An attachment of property remains in effect until the property is sold and the sale is confirmed, unless it is removed or determined according to the law . Rule 55: Removal of attachment after satisfaction of decree A ttachment may be terminated under the following circumstances: When the decreed amount, including costs, charges, and expenses resulting from the attachment, is paid into the Court When satisfaction of the decree is otherwise made through the Court or certified to the Court When the decree is set aside or reversed .

43. Rule 56: Order for payment of coin or currency notes to party entitled under decree Order 21, Rule 56 of the Code of Civil Procedure (CPC) deals with situations where the attached property during the execution of a decree consists of current coin or currency notes. In such cases, the court can order the payment of these coins or currency notes, or a sufficient portion thereof, to satisfy the decree. Rule 57: Determination of attachment Dismissal of Execution Application: When an application for execution of a decree is dismissed by the court, the court must decide what happens to any property that has been attached during the execution process. Court's Direction: The court must specifically direct whether the attachment should continue or cease. If the court decides that the attachment should continue, it must also state how long the attachment will remain in effect. Deemed Cessation: If the court fails to give any direction regarding the attachment, it is automatically considered to have ceased.

44. Rule 58: Concerns the adjudication of claims and objections to the attachment of property  It allows parties to raise objections or claims related to the attachment, which the court must then adjudicate.  According to sub-rule (2), questions of title or interest in the attached property arising between parties in the proceeding are to be determined by the court dealing with the claim or objection, not by a separate suit. The court can then allow or disallow the claim, release the property, or continue the attachment subject to any existing interests.

45. Key aspects of Rule 58: Investigation of Claims and Objections : This rule provides a mechanism for investigating claims and objections to the attachment of properties. Grounds for Objection:  A claim or objection can be made on the grounds that the property attached is not liable to such attachment. Conditions for Entertaining Claims:  The court may refuse to entertain a claim if: The property has already been sold before the claim is preferred or the objection is made. The court believes that the claim or objection was designedly or unnecessarily delayed.

46. Adjudication Process : The court dealing with the claim will determine all questions relating to the right, title, or interest in the property attached. This determination will be made by the court and not through a separate suit. Orders of the Court:  After determining the questions, the court may: Allow the claim or objection and release the property from attachment, either wholly or partially. Disallow the claim or objection. Continue the attachment subject to any mortgage, charge, or other interest in favor of any person .

47. Third-Party Interests:  Order 21 Rule 58 CPC protects the interests of third parties who may have an interest in the attached property. Attachment Requirement:  There must be an existing attachment of the property for a claim to be maintained under Order 21 Rule 58. The rule applies to both movable and immovable properties. If an objection is raised by a party or their representatives, it falls under Section 47 of the CPC and is decided by the executing court. If a third party raises the objection, they must file an application under Order XXI, Rule 58 CPC before the executing court.

48. PRECEPTS (SECTION 46) Section 46 of the Code of Civil Procedure (CPC) deals with precepts. A precept is a written order issued by a court to another court to attach property of the judgment debtor. Key points: Purpose: To prevent the judgment debtor from disposing of their property before the decree can be executed. Issuance: The court that passed the decree can issue a precept to any other court that would be competent to execute the decree. Application: The decree holder must apply to the court for the issuance of a precept. .

49. Attachment: The court to which the precept is sent must attach the property as directed in the precept. Duration: The attachment under a precept cannot continue for more than two months unless extended by an order of the court that passed the decree or the decree is transferred to the court that made the attachment. Important Considerations: The court issuing the precept must be competent to execute the decree. The court to which the precept is sent cannot question its validity. The attachment under a precept is temporary.

50. Example: Application for precept: Rajesh (the decree-holder) applies to the Mumbai court (which issued the decree) to issue a precept. Issuance of precept: The Mumbai court issues a precept to the Delhi court, instructing it to attach Suresh's property located in Delhi. Action by receiving court: Upon receiving the precept, the Delhi court attaches Suresh's property according to legal procedures. Duration and further action: This attachment will last for two months unless extended or if Rajesh applies for further action within that timeframe.

51. Important Cases M.L. Kapoor & Sons v. Union of India( AIR 1974 SC 87 ) : The SC held that executing court has the same powers in executing the decree as if it had been passed by itself. This means that the executing court can take all necessary steps to enforce the decree, including issuing a warrant of arrest or attachment of property, appointing a receiver, selling property, and making payments to the parties. Syed Abdur Rahman v. Tripura Modern Bank Limited [1974] 44 Comp Cas 201 (Gauhati) : The Gujarat HC clarified that an attachment made under a precept is only valid for two months. It emphasized that further proceedings under the CPC are necessary for extending the attachment beyond this period.

52. SALE Section 65: Purchaser’s title Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. Section 67: Power of State Government to make rules as to sales of land in execution of decrees for payment of money Section 67 of the Code of Civil Procedure (CPC) of 1908 addresses the power of the State Government to make rules regarding land sales when executing decrees for payment of money.

53. Rule-making power: The State Government may, via notification in the Official Gazette, create rules for local areas regarding the sale of land when executing decrees for payment of money. This is applicable when the land interests are uncertain, making it impossible to determine their value. Special rules in force: If special rules regarding land sales were already in effect when the Code came into operation, the State Government can declare these rules to remain in force or modify them through notification in the Official Gazette. The notification must detail the rules that are continued or modified. Legislative review: Every rule made under this section must be presented before the State Legislature as soon as possible after it is made .

54. SALE AND DELIVERY OF PROPERTYUNDER EXECUTION OF DECREE (Rule 65-73) A decree may be executed by attachment and sale or by sale without attachment of any property. Rules 64-106 (O.21 and Secs.65-72 deal with the subject relating to sale and delivery of movable and immovable properties. General provisions (Rule 64-73) A court executing a decree may order that any property attached by it and liable to sale (or such portion of property as may be sufficient to satisfy the decree) may be sold and proceeds of it to be paid to the decree-holder (Rule 64). Every sale is to be conducted by an officer of the court in public auction (Rule 65).

55. iii. Before such auction, a proclamation of the intended sale is to be made by the court, after notice to the decree-holder and the judgment-debtor; the proclamation is to contain all material information regarding the property to be sold (Rule 66). iv. Every proclamation shall be made by beat of drum or other customary mode and a copy of it must be affixed on a conspicuous part of the property and of the courthouse and also in the Collector’s office gram panchayat if the property is land-paying revenue. If the court directs, it should also be published in the Official Gazette or a local newspaper (Rule 67).

56. v. Except in the case of property subject to speedy and natural decay, or the property keeping of which is expensive, no sale without the consent in writing of the judgment-debtor can take place before 15 days in case of immovable property and before 7 days in case of movable property from the date of proclamation in the court-house (Rule 68). vi. The court may adjourn a sale, but if it is adjourned for 30 days or more, a fresh proclamation is to be issued, unless the judgment-debtor consents to waive it. Every sale shall be stopped if before the property is knocked down, the debts and costs are tendered to the officer conducting the sale, or paid into the court (Rule 69).

57. vii. A decree-holder cannot, without the express permission of the court purchase the property sold in execution of his own decree. If the court permits him, he is entitled to a set-off; but if not so permitted, the court may set aside the sale upon the application of the judgment-debtor (Rule 72). Thus, such a sale is not void ab initio, but merely voidable. viii. A mortgage of immovable property cannot, without the court’s leave, purchase the property sold in execution of a decree on the mortgage (Rule 72-A). Any officer/person having any duty to perform in connection with an execution sale, cannot bid for, acquire, etc. any interest in the property sold in execution (Rule 73).

58. SALE OF MOVABLE PROPERTY (RULE 74-81) Rule 74: Sale of agricultural produce Growing crops: If the agricultural produce is a growing crop, it must be sold on or near the land where it has grown. Cut or gathered produce: If the produce has been harvested, the sale should occur at or near the threshing floor or storage area where it is kept. The court may direct that the sale be held at a public place if it believes this would enhance the sale price Postponement of Sale: f a fair price is not offered during the initial sale attempt, and if the owner or an authorized representative requests a postponement, the sale can be delayed until the next day or until the next market day.

59. Court’s Discretion: T he court has the authority to determine whether to postpone sales based on market conditions and potential price improvements. Rule 75: Special provisions relating to growing crops Order 21, Rule 75 of the Code of Civil Procedure (CPC) 1908, addresses special provisions for selling growing crops. If the crop can be stored, the sale should be scheduled to allow enough time for harvesting and preparation for storage, and the sale cannot occur until after the crop is cut, gathered, and ready for storage. However, if the crop cannot be stored, it can be sold before it is cut and gathered, and the purchaser has the right to enter the land to tend to, cut, or gather the crop.

60. Rule 76: Negotiable instruments and shares in corporation Where the property to be sold is a NI or a share in a corporation, the court may, instead of directing the sale to be made by public auction, authorize the sale of such instrument of share through a broker. Rule 77: Sale by public auction Order 21 Rule 77 of the Code of Civil Procedure, 1908, governs the sale of movable property by public auction. According to this rule, the purchaser is required to pay the auction price either at the time of sale or as directed by the auctioneer shortly thereafter. If the purchaser fails to make this payment, the property will be re-sold immediately. Upon successful payment, the auctioneer must issue a receipt, confirming that the sale has become absolute. Additionally, if a co-owner participates in the bidding, their bid is treated as that of a co-owner, ensuring fair representation in the auction process

61. Rule 78: Irregularity not to vitiate sale, but any person injured may sue Order 21 Rule 78 of the Code of Civil Procedure, 1908, addresses the issue of irregularities in the sale of movable property during execution proceedings. Specifically, it states that no irregularity in the publication or conduct of the sale shall vitiate the sale itself. However, it provides a significant caveat: any person who is injured by such irregularity retains the right to sue for damages. This provision ensures that while procedural missteps do not invalidate the sale, individuals adversely affected by those missteps can seek redress through legal action. The rule aims to balance the need for efficient judicial processes with the protection of individual rights in cases where improper procedures may lead to harm or unfairness.

62. Rule 79: Delivery of movable property, debts and shares Order 21, Rule 79 of the Code of Civil Procedure (CPC) outlines the procedure for the delivery of movable property, debts, and shares that have been sold. Where the sold property is movable and has been seized, it is to be delivered to the purchaser. If the movable property is in possession of someone other than the judgment debtor, the delivery to the purchaser is made by notifying the person in possession. This notice prohibits them from delivering the property to anyone except the purchaser. In cases where the property sold is a debt not secured by a negotiable instrument, or is a share in a corporation, the delivery is executed through a written order from the Court. This order prohibits the creditor from receiving the debt or any interest and the debtor from making payments to anyone except the purchaser.  The order also prevents the person in whose name the share is standing from transferring the share or receiving dividends, and it restricts the corporation's officers from permitting such transfers or payments to anyone but the purchaser.

63. Rule 80: Transfer of negotiable instruments and shares Order 21, Rule 80 of the Code of Civil Procedure addresses the transfer of negotiable instruments and shares during execution proceedings. This rule stipulates that when a court is executing a decree that involves negotiable instruments or shares, it may appoint a person to receive any interest or dividends due on those instruments or shares until the actual transfer occurs. This provision ensures that the rights of the decree-holder are protected by allowing them to benefit from any income generated by the instruments or shares during the period leading up to their transfer. This mechanism is crucial for maintaining the financial interests of the decree-holder while ensuring that the process adheres to legal protocols regarding ownership and transfer rights

64. Rule 81: Vesting order in case of other property Order 21, Rule 81 of the Code of Civil Procedure, 1908, pertains to the issuance of vesting orders for movable property not specifically addressed in earlier provisions. According to this rule, the Court is empowered to issue an order that vests such movable property in the purchaser or as directed by the purchaser. This means that upon the Court's order, ownership of the specified movable property is transferred accordingly, ensuring that the purchaser receives clear title to the property without further encumbrances.

65. SALE OF IMMOVABLE PROPERTY Rule 82: What courts may order sales Sales of immovable property in execution of decrees may be ordered by any court other than a Court of Small Causes. Rule 83: Postponement of sale to enable judgment-debtor to raise amount of decree Order 21, Rule 83 of the Code of Civil Procedure (CPC) allows a judgment-debtor to apply for a postponement of the sale of their immovable property if they can convince the court that they can raise the decree amount through mortgage, lease, or private sale of the property or any other of their properties. 

66. The court has the discretion to postpone the sale on terms and for a period it deems proper, to enable the debtor to raise the necessary funds. In such cases, the Court grants a certificate to the judgment-debtor, authorizing them to proceed with the proposed mortgage, lease, or sale within a specified period, notwithstanding anything contained in section 64. Rule 84: Deposit by purchaser and re-sale on default Order 21 Rule 84 of the Code of Civil Procedure (CPC) outlines the requirements for purchasers in the auction of immovable property. Upon being declared the purchaser, an individual must immediately deposit 25% of the purchase price with the officer conducting the sale. If this deposit is not made, the property is subject to immediate resale.

67. Furthermore, the remaining 75% of the purchase price must be paid within fifteen days from the auction date. Failure to comply with this requirement leads to forfeiture of the deposit and mandates a resale of the property, effectively nullifying the initial sale. The Supreme Court has emphasized that these provisions are mandatory; noncompliance results in no valid sale occurring at all, reinforcing that the court is obligated to resell the property in such cases. Rule 85: Time for payment in full of purchase-money Order 21 Rule 85 of the Code of Civil Procedure (CPC) stipulates that the full amount of the purchase money must be paid by the purchaser into the court before it closes on the fifteenth day following the sale of the property. This rule is mandatory, meaning that failure to comply with this requirement renders the sale null and void.

68. Rule 86: Procedure in default of payment In the context of the Civil Procedure Code, Order 21 Rule 86 outlines the procedure to be followed in case of default of payment by a purchaser in a sale of immovable property. If the purchaser fails to make the required payment within the specified time frame, the court has the authority to forfeit the deposit made by the purchaser after covering the expenses related to the sale. Consequently, the property will be re-sold, and the defaulting purchaser will lose all claims to both the property and any portion of the proceeds from its subsequent sale. This rule emphasizes the mandatory nature of timely payment and establishes a clear consequence for non-compliance, ensuring that the sale process can proceed without undue delay.

69. Rule 87: Notification on re-sale Order 21, Rule 87 of the Code of Civil Procedure, 1908, pertains to the notification on re-sale of immovable property. This rule mandates that whenever there is a re-sale due to the default in payment of the purchase money, a fresh proclamation must be issued. This proclamation should follow the same procedures and timeframes as those established for the original sale. The intent behind this rule is to ensure transparency and provide adequate notice to potential bidders about the re-sale, thereby safeguarding the interests of all parties involved in the transaction. Rule 88: Bid for co-sharer to have preference Where the property sold is a share of undivided immovable property and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the co-sharer.

70. SETTING ASIDE OF SALE (RULE 89-92) Rules 89-92 deal with setting aside of sale; an application to set aside sale cannot be made on any other ground not covered by these rules. The grounds and the persons who may apply for setting aside sale are: On the deposit of the amount specified in the proclamation of sale, by the judgment-debtor or other interested person, and paying 5% of the purchase-money to the purchaser (Rule 89). On the ground of material irregularity or fraud in publishing or conducting the sale; the decree-holder/purchaser/any other interested person can apply for setting aside, if it is shown that such irregularity, etc. has substantially injured such a person (Rule 90).

71. Rule 91 enables the auction-purchaser to apply for setting aside the sale on the ground that the judgment-debtor had no saleable interest in the property. This provision is an exception to the general rule of caveat emptor (let the buyer beware) and to the principle that a court-sale carries with it no guarantee that the property sold is the property of the judgment-debtor. Rule 92 lays down that no sale of immovable property shall become absolute until it is confirmed by the court (where no application to set aside the sale is made or, if made such application is disallowed). Where such application is allowed or the deposit required by Rule 89 is made within 60 days from the date of sale, the sale shall be set aside.

72. RESISTANCE OF DELIVERY OF POSSESSION TO DECREE-HOLDER OR PURCHASER (RULE 97-106) Rule 97: Resistance or obstruction to possession of immovable property Order 21 Rule 97 of the Code of Civil Procedure (CPC) addresses resistance or obstruction to the possession of immovable property during the execution of a decree. It allows a decree holder, or an auction purchaser, to apply to the executing court if they face resistance or obstruction in obtaining possession of the property. The court then adjudicates the matter obstruct the possession. The executing court has the power to address claims by all persons resisting the delivery of possession. The Karnataka High Court has held that applications under Order 21 Rule 97 can be dismissed if the obstructor cannot prove their right to resist execution.

73. Rule 98: Orders after adjudication Order 21, Rule 98 of the Code of Civil Procedure (CPC) pertains to orders made by the court after adjudicating claims regarding possession of property. According to this rule, once the court resolves the questions referred to in Rule 101, it must either allow the application and direct that the applicant be put into possession of the property or dismiss the application. Additionally, the court has the discretion to pass any other order it deems appropriate based on the circumstances of the case. Furthermore, if the court finds that any resistance or obstruction to possession was caused without just cause by the judgment-debtor or their instigator, it is mandated to direct that the applicant be put into possession of the property. The orders passed under this rule are treated as decrees and are subject to appeal, reinforcing their legal significance in adjudicating disputes related to property possession.

74. Rule 99: Dispossession by decree-holder or purchaser Order XXI Rule 99 of the Code of Civil Procedure, 1908 (CPC) addresses the rights of individuals who are dispossessed of immovable property by a decree holder or a purchaser during the execution of a decree. Specifically, it states that if any person other than the judgment debtor is dispossessed, they may file an application to the court to contest this dispossession. This provision is particularly significant for those who are not parties to the original suit, allowing them to seek redress for their loss of possession.

75. Rule 100: Order to be passed upon application complaining of dispossession Order 21 Rule 100 of the Code of Civil Procedure (CPC) addresses applications made by individuals who claim to have been dispossessed of immovable property. Upon receiving such an application, the court is required to make a determination regarding the dispossession. Specifically, the court may either allow the application and order that the applicant be restored to possession of the property or dismiss the application altogether. This rule ensures that individuals who believe they have been wrongfully dispossessed can seek redress through the judicial system, allowing for a fair assessment of their claims and rights concerning the property in question .

76. Rule 101: Questions to be determined Order 21 Rule 101 empowers the executing court to determine all questions related to right, title, or interest in the property that arise during execution proceedings. This rule ensures that such questions are resolved within the execution process rather than requiring a separate suit. The court is deemed to have jurisdiction to decide these issues, regardless of other laws that may suggest otherwise . Rule 102: Rules not applicable to transferee pendente lite This rule allows for the stay of execution if there is a pending suit concerning the same property. If a party claims a right to possession that conflicts with the decree being executed, this rule may apply

77. Rule 103: Orders to be treated as decrees Orders made under Rules 98 or 100 are treated as decrees for all intents and purposes. This means they carry the same force as a formal decree and are subject to appeal just like any other decree . Rule 104: Order under rule 101 or rule 103 to be subject to the result of pending suit Any order made under Rule 101 or Rule 103 is subject to the outcome of any pending suit regarding the property. If a party has sought to establish a right to possession in a separate suit, that suit's outcome will affect the execution order . Rule 105: Hearing of application This rule outlines procedures for restoring execution applications that have been dismissed due to default by the decree holder. It provides specific timelines for filing such applications .

78. Rule 106: Setting aside orders passed ex parte , etc. Order 21, Rule 106 of the Code of Civil Procedure (CPC) provides a mechanism for setting aside ex parte orders in execution proceedings. This rule allows an aggrieved party, against whom an order has been made without their presence (ex parte ), to apply to the court for the order to be set aside. The applicant must demonstrate sufficient cause for their absence when the order was made. If the court is satisfied with the explanation, it may set aside the order and appoint a new date for further hearings. The application under this rule must be made within  thirty days  from the date of the order or from when the applicant became aware of it if proper notice was not served. Additionally, the court will not entertain such applications unless notice has been given to the other party involved. In cases where there is a delay beyond this period, certain amendments allow for the invocation of Section 5 of the Limitation Act, permitting the court to condone delays if justified.

79. IMPORTANT JUDGMENTS 1. Receiver in execution proceedings B.R. Ray v. Ganesh & Co. [AIR 1971 Cal. 195 (197)]: It was held that the court may appoint a receiver of property outside the local limits of its territorial jurisdiction. 2. Period in civil detention (Section 58) Samiran Sen v. Arpita Sen (AIR 2009 Cal 229): The detention of a judgment-debtor in civil prison beyond 3 months is illegal. It amounts to violation of Article 21 of the Constitution. This particularly so because release from detention from a civil prison does not amount to a discharge of the debt owed by the debtor [Section 58(2)].

80. 3. Property liable to attachment and sale in execution of decree (Section 60) Radhey Shyam Gupta v. Punjab National Bank, (2008) 8 Supreme 670: The HC order directing satisfaction of a part of the decree amount from the FDR of the judgment-debtor was held to be without jurisdiction. Retiral benefits such as pension and gratuity cannot be attached. 4. Claim cannot be entertained after sale Southern Steel and Alloys Ltd. v. B.M. Steels, Madras, (1978) 1 MLJ 468: The adjudication referred to under Order 21, Rule 58 not being summarily heard as by it is the intention of the legislature under Rule 58 that it should be a decision as if rendered in a regular suit which could ultimately be decided and adjudicated on all questions including questions relating to right, title or interest in the property attached which either directly or indirectly arise b/w the parties to the proceedings.

81. 5. Mode of making proclamation Desh Bandhu v. Anand, (1994) 1 SCC 131: The purpose of issuing proclamation is two-fold: firstly, it protects the interests of the intending purchasers by giving them all material information regarding the property to be sol, and secondly, it protects the interest of the judgment-debtor by facilitating the fetching of proper market price for his property and preventing it being knocked down at public auction for a price much below the market price. 6. Irregularity in mode of attachment N.K. Laskar v. S.C. Rama, AIR 1971 Cal. 275: When a property was attached with leave of the court and the judgment-debtor had notice of the application for sale and contested the same, the irregularity, if any, in the attachment of the property must be deemed to have been considered and rejected.

82. THANK YOU