Execution
Execution
It is the legal procedure through which decrees and orders are enforced by the court,
allowing the decree-holder to obtain the benefit or relief granted by the judgment.
Execution is considered complete when the judgment-creditor or decree-holder receives
the money or property awarded to them under the judgment, decree, or order.
The principles governing execution of decrees and orders are dealt with in Sections 36
to 74 (substantive law) and Order 21 of the Code (procedural provisions).
Order 21 contains 106 Rules
Key Heads under Order 21 CPC
The executing court cannot go beyond the decree or vary or modify its terms.
However, if the terms of the decree are vague, the executing court can construe the decree and refer
even to the pleadings in the suit.
In case of inherent lack of jurisdiction the decree passed is a nullity and its invalidity could be raised in
execution proceedings – here the court cannot be said to be going behind the decree as there is no decree
at all. However, the inherent lack of jurisdiction must appear from the face of the record. – Also see Section
21 (3).
The executing court can also go into the executability of the decree and enquire whether the decree has
ceased to be executable.
The executing court has the power to mold the relief granted to the Plaintiff in accordance with the
changed circumstances.
The principle of res judicata specifically applies to execution proceedings by virtue of Explanation VII of
section 11. But an earlier decision can operate as res judicata if the execution application has been heard
and finally decided and not otherwise. If the application is dismissed for default of appearance, non-
prosecution, as being premature or as not pressed, the principle of res judicata will not apply.
Under the Code, the provisions thereof applicable to decrees are deemed applicable to orders also.
Hence, the same procedures would need to be adopted for execution of orders also.
Section 38. Court by which decree may be executed.
A decree may be executed either by the Court which passed it, or by the Court to
which it is sent for execution.
Section 37. Definition of Court which passed a decree.
The expression "Court which passed a decree," or words to that effect, shall, in relation to the
execution of decrees, unless there is anything repugnant in the subject or context, be deemed to
include,
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the
Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court
which, if the suit wherein the decree was passed was instituted at the time of making the application
for the execution of the decree, would have jurisdiction to try such suit.
1[Explanation.-- The Court of first instance does not cease to have jurisdiction to execute a decree
merely on the ground that after the institution of the suit wherein the decree was passed or after the
passing of the decree, any area has been transferred from the jurisdiction of that Court to the
jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to
execute the decree, if at the time of making the application for execution of the decree it would
have jurisdiction to try the said suit.]
Note - by virtue of the deeming provision in section 37, the “court which passed the decree” is
deemed to include several other courts as well.
Section 39. Transfer of decree.
(1) The Court which passed a decree may, on the application of the decree holder, send it for execution to another
Court [of competent jurisdiction],
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally
works for gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient
to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of
the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree
should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent
jurisdiction.
[(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of
making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such
decree was passed.]
[(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against
any person or property outside the local limits of its jurisdiction.]
Key Points from Section 39 –
Transfer is discretionary, not mandatory.
The decree-holder has no absolute right to demand transfer, only a procedural right to
request it.
As per the 1976 Amendment, the transferee court must have pecuniary jurisdiction over
the matter.
The 2002 Amendment clarified that the original court cannot execute a decree against
a person or property outside its territorial jurisdiction.
MAHADEO PRASAD SINGH VS RAM LOCHAN
(1980)4SCC 354
Matadin, the father of Ram Lochan (respondent 1), was a fixed-rate tenant of the plots in dispute.
Ram Naresh Singh (deceased), brother of Mahadeo Prasad Singh (appellant 1), obtained a money
decree against Matadin on February 18, 1953, from the Judge, Small Causes Court, Varanasi.
The decree was transferred to the Court of Munsif, Varanasi, for execution.
The plots were put to auction by the executing court and purchased by Ram Naresh Singh on July 20,
1956. The sale was confirmed on August 29, 1956, and a sale certificate was issued on September 8,
1956. Ram Naresh Singh took delivery of possession on March 14, 1957.
Ram Naresh Singh subsequently sold parts of the plots to appellant 2 and respondents 6 to 10.
Matadin died in 1960. His son, Ram Lochan (respondent 1), instituted a suit on June 14, 1961, more
than three years after possession was delivered, under Section 229B read with Section 209 of the U.P.
Zamindari Abolition and Land Reforms Act. He sought a declaration that he was in possession as a
Bhoomidar, or alternatively, possession on the same basis, alleging the sale to Ram Naresh Singh was
without jurisdiction and a nullity.
History of the case –
The trial court dismissed the suit, holding it was barred by constructive res judicata and Section 47 of
the CPC, that the Revenue Court lacked jurisdiction, and that the purchasers were bona fide.
The Additional Commissioner allowed the appeal, holding that the executing court (Munsif) had no
jurisdiction to sell the land under Section 42 of the CPC (as amended by the U.P. Civil Laws (Amendment)
Act, 1954), that the sale was void, and that the suit was not barred by res judicata or Section 47 CPC.
The Board of Revenue dismissed a second appeal, affirming that the auction sale was void and did not
confer title, thus the appellant's possession was without title.
A Single Judge of the Allahabad High Court allowed a writ petition, quashing the judgments of the
Board of Revenue and Additional Commissioner. The Single Judge held the execution sale was proper as
per Section 42 CPC prior to its 1954 amendment, as the decree was passed before the amendment.
A Special Appeal to a Full Bench of the High Court saw a majority holding that the Small Cause Court
had no power to execute a decree by attachment and sale of immovable property. Consequently, the
transferee court (Munsif) also had no such jurisdiction, as its powers became co-terminus with the
transferor court after the 1954 amendment came into force, which was before the execution date. The
amendment, being procedural, was applicable.
Sinha, J. dissented, arguing that the 1954 Amendment Act did not apply and a substantive right to
execute the decree by attachment and sale of immovable property had accrued to Ram Naresh Singh,
which was saved by Section 3 of the Amendment Act.
The majority view of the High Court was upheld, leading to this appeal to the Supreme Court
The Supreme Court upheld the impugned judgment of the High Court's majority and dismissed the appeal.
The Court held that the execution sale of the land in dispute was totally without jurisdiction and null and void.
It further concluded that since the sale was null and void, the contention that the suit was barred by Section 47 of
the CPC did not survive.
The SC found no merit in the judgment debtor's challenge to the High Court's
decision to uphold the orders dated March 19, 2003, and July 7, 2003.
The SC said that these orders directed a third party to not hand over possession
or documents to the judgment debtor and for documents to be kept in safe custody.
Such orders are "in the nature of a 'freezing order' or a 'Mareva injunction' and
an order akin to an Anton Piller order," which can be issued even if the property or
the person concerned is outside the jurisdiction of the court.
Furthermore, the judgment debtor had not challenged these orders at the
appropriate time
Final Holding –
The Supreme Court dismissed both appeals, affirming the High Court's order, with a
clarification:
• The Court upheld the High Court's decision to transfer the execution relating to the
sale of the Indore property to the court at Indore, concluding that the Gwalior court
lacked territorial jurisdiction to order the sale of property outside its local limits.
• The Court upheld the High Court's refusal to interfere with the earlier restraint
orders (March 19, 2003, and July 7, 2003), finding them to be within the Gwalior
court's jurisdiction as they were "freezing orders" or "Mareva injunctions".
• Clarification: The Supreme Court clarified that the Gwalior court's earlier direction
for the sale of the Indore house (dated May 11, 2004) would "fall to the ground"
because the decree was being transferred. The decree holder is now free to move an
application for the sale of the property in the executing court at Indore
Main Principle - The transferee court shall have the same powers in executing the decree as if it had been
passed by itself. However, there are some fetters on the powers of the transferee court.
Section 42
Powers of Court in executing transferred decree. (1) The Court executing a decree sent to it shall have
the same powers in executing such decree as if it had been passed by itself. All persons is disobeying or
obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had
passed the decree. And its order in executing such decree shall be subject to the same rules in respect of
appeal as if the decree had passed by itself.
(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of the Court under
that sub-section shall include the following powers of the Court which passed the decree, namely: --
(a) power to send the decree for execution to another Court under section 39;
(b) power to execute the decree against the legal representative of the deceased judgment-debtor under
section 50;
(c) power to order attachment of a decree.
(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy
thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution
any of the following powers, namely:--
(a) power to order execution at the instance of the transferee of the decree ;
(b) in the case of a decree passed against a firm, power to grant leave to execute such decree against
any person, other than such a person as is referred to in clause (b),or clause (c), of sub-rule (1) of rule 50
of Order XXI.]
Procedure to be adopted for transfer of a decree- Sections 40, 41, 42 and Order 21
Rules 4, 5,6,7,8,9
(2) The Court to which a precept is sent shall proceed to attach the property in the
manner prescribed in regard to the attachment of property in execution of a decree:
Provided that no attachment under a precept shall continue for more than two months
unless the period of attachment is extended by an order of the Court which passed the
decree or unless before the determination of such attachment the decree has been
transferred to the Court by which the attachment has been made and the decree-
holder has applied for an order for the sale of such property.
Revision - General Principles Governing Executing Courts:
1. Territorial Jurisdiction
A court must have territorial jurisdiction to execute a decree.
It cannot execute a decree concerning property located entirely outside its local jurisdiction.
Execution proceedings begin with the filing of an execution application. This application must
be made to:
The court which passed the decree, or
The court to which the decree has been transferred for execution.
The procedure is governed by Rules 10–25 and 105–106 of Order 21 of the Code of Civil
Procedure.
Who May Apply for Execution? (Rule 10 of Order 21)
(i) Decree-Holder
(ii) Legal Representative of the Decree-Holder - If the decree-holder has died, their legal heir can file the application.
(iii) Representative of the Decree-Holder - A person representing the decree-holder in a legal or official capacity.
(iv) Person Claiming Under the Decree-Holder - Anyone who derives rights from the decree-holder under the decree.
(v) Transferee of the Decree-Holder - A transferee of the decree can apply if all the following conditions are met:
The decree was transferred by written assignment or operation of law.
The application is made to the court that passed the decree.
Notice and hearing opportunity must be given to both the transferor, and the judgment-debtor, if the transfer was by
assignment.
Note: Issuing notice is mandatory. Failure to do so renders all execution proceedings void. The purpose is to conclusively
determine the validity of the transfer in the presence of all concerned parties.
(vi) One or More Joint Decree-Holders - They may apply if the decree does not prohibit individual execution ; The
application is for execution of the entire decree ; The application is for the benefit of all joint decree-holders.
(vii) Person with Special Interest - A person with a direct interest in the outcome of the decree.
Other Eligible Applicants:
Contents of an Execution Application (Rule 11, Order 21) – Important for preparing execution application
Unless it is a simple money decree, every execution application must be:
- In writing
- Signed and verified by the applicant or someone acquainted with the facts
Include essential details such as:
Suit number
Names of the parties
Date and details of the decree
Amount due or relief granted
(Contd.) Additional Requirements Based on the Nature of Execution:
Attachment of Movable Property (not in debtor’s possession): Must be accompanied by an inventory with
accurate description.
Attachment of Growing Crops: Application must mention the likely time of harvest. (read with Section 60)
Attachment of Immovable Property: Must include -
A clear description sufficient to identify the property
The judgment-debtor's share or interest in that property
Arrest and Detention in Civil Prison: Application must state or be accompanied by an affidavit stating
the grounds for arrest.
Attachment of Land Registered with the Collector: The court may ask for a certified extract from
the Collector’s register.
Form of Execution Application
An application for execution should be filed in Form No. 6 of Appendix E to the First Schedule of the Code of
Civil Procedure. However, if the application is not in the prescribed form, it is not a fatal defect. Such an error
is not considered material and does not invalidate the application.
A notice to show cause to the person against whom a decree is being executed (on why the decree should not be
executed) is mandatory in the following situations:
Delay in Filing Execution: The execution application is filed more than two years after:
The date of the decree, or
The last order passed on a previous execution application.
Execution Against Legal Representatives: The execution is sought against the legal heirs of the judgment-debtor.
Execution of Foreign Decrees: The decree was passed by a court in a reciprocating foreign territory.
Execution Against Assignee or Receiver: The judgment-debtor has been declared insolvent, and the execution is
against their assignee or court-appointed receiver.
Arrest and Detention: The decree is for money payment, and execution is sought by arrest and detention of the
judgment-debtor.
Execution Against Surety: The application is filed against a surety who had guaranteed the performance of the
decree.
Execution by Transferee or Assignee of Decree-Holder: The execution application is filed by a person who has
acquired the decree from the original decree-holder.
Legal Nature of the Requirement:
Mandatory Provision: Issuing a notice in the above situations is a condition precedent to valid execution.
It goes to the jurisdiction of the executing court.
Constitutional Validity - Rule 22 is not violative of Article 14 of the Constitution; it is a necessary
procedural safeguard.
Effect of Omission: Failure to issue a mandatory notice:
Renders the entire execution proceeding null, void, and without jurisdiction, unless: The judgment-debtor
has waived their right to notice.
Discretion to Dispense with Notice – Sub-rule (2):
The court may waive the notice requirement if:
It would cause unreasonable delay, or
It would defeat the ends of justice.
However, the court must record reasons for such waiver.
Procedure After Notice: Rule 23
If a person served with a notice under Rule 22 fails to appear or does not show cause against
the execution, the court shall, unless there is a valid reason to the contrary, proceed to issue the
necessary orders to execute the decree. However, if the person raises objections to the
execution, the court must consider those objections and pass an appropriate order based on
the merits.
Limitation Period
The limitation period for executing a decree, except one granting a mandatory injunction,
is twelve years from the date of the decree.
For decrees granting a mandatory injunction, the limitation period is three years from the date
of the decree.
Execution Application and Res Judicata
(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 (b) 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 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 run from the date
on which 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 21, Rule 2. Payment out of Court to decree-holder.
(1) Where any money payable under a decree of any kind is paid out of Court. [or 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.
(2) The judgment-debtor [or any person who has become surety for the judgment-debtor] also may
inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the
decree- holder to show cause, on a day to be fixed by the Court, why such payment or adjustment
should not be recorded as certified; and if, after service of such notice, the decree-holder fails to
show cause why the payment or adjustment should not be recorded as certified, the Court record
the same accordingly.
(2A) 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 given under sub-rule (2) of rule 1, on before the Court.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be
recognized by any Court executing the decree.
WHO CAN MAKE AN APPLICATION AND AGAINST
WHOM CAN IT BE MADE ?
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent
of the property of the deceased which has come to his hands and has not been duly disposed of; and,
for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or
on the application of the decree-holder, compel such legal representative to produce such accounts as it
thinks fit.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the
Court that he has duly applied such property of the deceased as is proved to have come into his
possession, the decree may be executed against the judgment-debtor to the extent of the property in
respect of which he has failed so to satisfy the Court in the same manner as if the decree had been
against him personally.
Section 53. Liability of ancestral property.
For the purposes of section 50 and section 52, property in the hands of a son or
other descendant which is liable under Hindu law for the payment of the debt of a
deceased ancestor, in respect of which a decree has been passed, shall be deemed
to be property of the deceased which has come to the hands of the son or other
descendant as his legal representative.
Order 21, Rule 16. Application for execution by transferee of decree.
Where a decree or, if a decree has been passed jointly in favour of two or more persons, the
interest of any decree-holder in the decree in transferred by assignment in writing or by
operation of law, the transferee may apply for execution of the decree to the Court which
passed if, and the decree may be executed in the same manner and subject to the same
conditions as if the application were made by such decree-holder:
Provided also that, where the decree, or such interest as aforesaid, has been transferred by
assignment, notice of such application 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:
Provided also that, where a decree for the payment of money against two or more persons
has been transferred to one of them, it shall not be executed against the others.
Explanation-
Nothing in this rule shall affect the provisions of section 146 (Proceedings by or against
representatives), and a transferee of rights in the property, which is the subject matter of the
suit, may apply for execution of the decree without a separate assignment of the decree as
required by this rule.
Order 21, Rule 22A. 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 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.
Note: death of judgment debtor before sale but after proclamation of sale does not
vitiate the sale.
Section. 145. Enforcement of liability of surety.
Where any person has furnished security or given a guarantee--
Provided that such notice as the Court in each case thinks sufficient has been given to
the surety.
Order 21, Rule 15. Application for execution by joint decree-holders.
(1) Where a decree has been passed jointly in favour of more persons than one, any
one or more such persons may, unless the decree imposes any condition to the
contrary, apply for the execution of the whole decree for the benefit of them all, or,
where of them has died, for the benefit of the survivors and the legal representatives
of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be executed on
an application made under this rule, it shall make such order as it deems necessary
for protecting the interest of the persons who have not joined in the application.
Question - Should the law allow one joint decree-holder to execute the decree
without the consent of others? What problems might arise? Should Order 21 Rule 15
be reformed?
STAY OF EXECUTION
Order 21, Rule 26. When Court may stay execution.
(1) the Court to which a decree has been sent for execution shall, upon sufficient cause being shown,
stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to
the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of
the decree or the execution thereof, for an order to stay execution, or for any other order relating to
the decree or execution which might have been made by such Court of first instance or Appellate
Court if execution had been issued thereby, or if application for execution had been made
thereto. (Can this be construed harmoniously with Section 47?)
(2) Where the property or person of the judgment-debtor has been seized under an execution, the
Court which issued the execution may order the restitution of such property or the discharge of such
person pending the result of the application.
(3) Power to require security from, or impose conditions upon, judgment-debtor-
Before making an order to stay execution, or for the restitution of property or the discharge of the
judgment-debtor, the Court shall require such security from, or impose such conditions upon, the
judgment-debtor as it thinks fit.
Order 21, Rule 27. Liability of judgment-debtor discharged.
No order of restitution or discharge under rule 26 shall prevent the property or person of a judgment-
debtor from being retaken in execution of the decree sent for execution.
Order 21, Rule 28. Order of Court which passed decree or of Appellate Court to be binding upon
Court applied to.
Any order of the Court by which the decree was passed, or of such Court of appeal as aforesaid, in
relation to the execution of such decree, shall be binding upon the Court to which the decree was sent
for execution.
Appointment of a receiver
Another mode of execution under Section 51(d).
This is an equitable and discretionary remedy, allowed only when other standard methods of execution
are ineffective.
A strong case must be made by the decree-holder to show that appointing a receiver will benefit both
parties and that the decree is likely to be satisfied within a reasonable time.
This remedy cannot be used to circumvent statutory protections; for instance, property like provident fund
balances, which are exempt from attachment, cannot be taken over by a receiver.
Notably, a receiver can even be appointed before property is attached or for property located outside
the court's territorial limits. The process must comply with provisions under Order 40 Rule 1.
Section 54. Partition of estate or separation of share.
Where the decree is for the partition of an undivided estate assessed to the payment of
revenue to the Government, or for the separate possession of a share of such an estate,
the partition of the estate or the separation of the share shall be made by the Collector or
any gazetted subordinate of the Collector deputed by him in this behalf, in accordance
with the law (if any) for the time being in force relating to the partition, or the separate
possession of shares, of such estates.
To summarize –
Modes of Execution (Section 51)
The law provides various methods to enforce a decree (these are general methods - their conditions and
limitations are laid down in other parts of the Code):
Delivery of property,
Attachment and sale of property,
Arrest and detention of the judgment-debtor,
Appointment of a receiver,
Partition of property, or
Any other manner as needed based on the relief granted
2. Decree-holder’s Choice
A decree-holder has the freedom to choose the mode of execution. This choice is subject to 1. Legal conditions
and restrictions under the CPC and 2. The court’s discretion.
3. Simultaneous Execution
Section 51 allows multiple modes of execution at the same time (e.g., attaching both movable and immovable
property together). Courts generally should not restrict the decree-holder from using more than one method.
However, the court retains discretion and must use it judicially. Courts can deny simultaneous execution if, for
example, one method is enough to recover the money.
QUESTIONS!
1. If someone owes you money and you have a decree, can you ask the court to go after their
property and their person at the same time?
2. You won a case to get back your pet parrot. The judgment-debtor hides it. How can the Court help
you?
3. After 6 months of not returning your bike (despite a decree), can you sell the other party’s TV which
was attached by the Court?
4. Can the court forcefully make your ex (husband or wife) come back to live with you if you win a
decree for restitution of conjugal rights?
5. What happens if someone keeps ignoring an injunction order?
6. Courts must execute a restitution of conjugal rights decree no matter what. True or false?
7. You win a case requiring someone to sign a sale deed. They refuse. Can the court sign it for them?
8. You win a house back in court. The other side won’t leave. Can the court help you move in?
9. What if furniture is inside the house? Can the court help move it too?
10. If the person in the house is not resisting, will the court still use force to throw them out?
Cross-Decrees and Cross-Claims
Rules 18 to 20 of Order 21
Provide for the set-off of amounts when two parties have decrees or claims against each other. In the
case of cross-decrees (Rules 18 and 20), if both parties hold decrees for payment of money against
one another in separate suits, the court can offset these decrees.
If the amounts are equal, both decrees are treated as satisfied in full, and no execution is allowed. If
the amounts are unequal, the smaller decree is deemed fully satisfied, and execution is permitted only
for the balance on the larger decree.
For instance, if A holds a decree against B for ₹10,000 and B holds a decree against A for ₹5,000,
B’s decree is considered satisfied, and A may execute his decree for ₹5,000 only.
The main objective of this rule is to avoid unnecessary litigation and duplicative execution
proceedings. Set-off is not discretionary, nor limited to cases arising from the same transaction.
These provisions apply not only to ordinary suits but also to mortgage suits and possibly others, even
if not strictly covered under Rule 18.
For a decree to qualify for set-off, several conditions must be met: (1) both must be for payment of
money, (2) they must have been passed in separate suits, (3) each party must be both a decree-holder
and judgment-debtor in the other suit, (4) parties must hold the same legal character in both suits, (5)
both decrees must be executable by the same court, and (6) execution applications must be made in
respect of both decrees.
The test to determine whether decrees are cross-decrees depends on their substance, not form.
On the other hand, cross-claims (Rule 19) deal with rival money claims under the same
decree.
If both claims are of equal value, the decree is treated as fully satisfied, and no
execution is allowed.
If one claim is larger, execution can proceed for the difference.
The purpose of this rule is also to prevent dual execution and ensure that a party
cannot execute a decree for a lesser amount while owing a larger amount under the same
decree. This is based on equity, aiming to balance the obligations and entitlements of both
parties within a single decree.
To invoke this rule, it must be shown that both parties are asserting competing claims
under the same decree. The relevant date for assessing satisfaction is the date of the
decree itself.
ARREST AND DETENTION
Objective of Arrest and Detention provisions in the CPC:
In the case of Subrata Roy Sahara v. Union of India (2014) 8 SCC 470, the Supreme
Court said that in the execution of a decree for payment of money, the executing
court may order the arrest and detention of the judgment-debtor - However, since the
primary objective is to ensure payment, detention does not discharge the debtor from the
obligation to pay.
For example, in other laws such as Sections 125 to 128 of the Code of Criminal
Procedure, 1973 (relating to maintenance), imprisonment serves only as a means to
compel compliance.
“Most importantly, the purpose of sending a person to jail must be understood as being a
manner, procedure or device, for the satisfaction of the liability. Arrest and detention is only
to coerce compliance. The liability to pay would stand discharged only by actual payment of
the amount due. Remaining in jail would not discharge the liability to pay.”
When Can Arrest and Detention Be Ordered?
A decree for payment of money can be executed through the arrest and
detention of the judgment-debtor in civil prison. (Rule 30)
In cases involving a decree for specific performance of a contract or for the
enforcement of an injunction, the court may also order the arrest and detention of the
judgment-debtor to compel compliance. (Rule 32)
If decree is passed against a corporation, it may be executed (with the court’s
permission) by seeking the civil detention of its directors or officers responsible for
disobedience of the decree. (Rule 32)
Who Cannot Be Arrested in Execution of a Decree? (As per Sections 56, 58, 135, and 135-A of
the CPC)
Women (Section 56)
Judicial Officers – while going to, presiding in, or returning from their courts. (Section 135 (1))
Legal Professionals and their Witnesses, including: (Section 135 (2))
Parties to a case,
Their pleaders, mukhtars, revenue agents, and recognised agents, and
Witnesses acting under a court summons,
When they are on their way to, attending, or returning from court.
Members of Legislative Bodies – during the session of the legislature. (Section 135A)
Persons Exempted by State Government – if their arrest is considered likely to cause danger or
inconvenience to the public. (Section 55 (2))
Judgment Debtor, if the decretal amount is ₹2,000 or less. (Section 58 (1A))
Note - Order 21 Rule 21: court may refuse simultaneous execution at the same time against the
person and property of the judgment debtor.
PROCEDURE FOR ARREST AND DETENTION OF JUDGMENT-DEBTOR
A judgment debtor may be arrested at any time, on any day, in execution of a decree. After arrest, the
person must be produced before the court as soon as practicable. (Section 55 and Order 21 Rule 38)
Restrictions on Entering Dwelling Houses (Section 55)
No dwelling house may be entered for arrest after sunset or before sunrise.
No outer door of a house may be broken open, unless:
The house is occupied by the judgment debtor, and he refuses or prevents entry.
If the room is occupied by a pardanashin woman, and she is not the judgment debtor, she must be
given reasonable time and privacy to withdraw before entry.
Subsistence Allowance - A judgment debtor cannot be arrested unless the decree-holder deposits a
subsistence allowance with the court, as fixed by the court. (Order 21, Rule 39; Section 57 – State Govt to fix
scales)
Payment Upon Arrest - If the judgment debtor pays the decretal amount and any related costs to the
arresting officer, he must be released immediately.
Affidavit and Burden of Proof - The decree holder must file an affidavit or state the grounds for arrest in
the execution application (O. 21, Rule 11A). The burden on the decree-holder is very high. He must prove that
the conditions under the proviso to Section 51 CPC (such as refusal to pay despite having the means) are
satisfied.
Women (Section 56), Minors (Section 50) and, Legal representatives of a deceased judgment debtor
(Section 52) cannot be arrested or detained in execution of a money decree
NOTICE BEFORE ARREST – Order 21 Rules 37 & 40 CPC
When the Debtor Does Not Appear - If the judgment-debtor fails to appear after receiving the
notice, and the decree-holder requests, the court shall issue a warrant for arrest. (Rule 37, 38 of
Order 21)
Disclosure of Assets - If a money decree remains unsatisfied for 30 days, the court may, on the
decree-holder's application, direct the judgment-debtor to file an affidavit of assets. Non-
compliance with such an order may result in detention up to 3 months. (Rule 41)
Opportunity to Judgment-Debtor to Satisfy the Decree - The proviso to Rule 40(3) of Order 21
CPC provides the judgment-debtor with an opportunity to satisfy the decree before an order of
detention is made.
Power and Duty of the Court in Ordering Arrest and Detention
If judgment debtor pays the sum due to the officer arresting, such officer shall at once release him
(section 55).
Under section 55(3) – once the judgment debtor is arrested and brought before the court, the Court is
bound to inform him that he may apply to be declared an insolvent.
The law relating to arrest and detention in execution of a decree balances the rights of both parties.
It protects the decree-holder’s interest, ensuring the judgment-debtor doesn’t evade payment if he has
the means.
However, the court must not order detention merely because the debtor failed to pay. There must be:
Evidence of bad faith or mala fide intention
A wilful refusal to pay, despite having the means
Conduct amounting to dishonest disowning of the obligation
Above mentioned principles were laid down in Jolly George Varghese v. Bank of Cochin.
Justice Krishna Iyer observed: To cast a person into prison merely because of poverty and inability
to pay is unconstitutional. Poverty is not a crime. Detaining someone for inability to pay, without
proving willful failure despite means, violates Article 21 of the Constitution and Article 11 of the
International Covenant on Civil and Political Rights (ICCPR).
Recording of Reasons for Detention - The court is mandatorily required to record
reasons whenever it orders detention of a judgment-debtor.
Failure to record reasons is a serious legal error and can render the order invalid.
This requirement applies to every instance of such an order and is a vital part of due
process.
Re-arrest of Judgment-Debtor
As a general rule, a judgment-debtor once released cannot be re-arrested in execution of the same decree.
However, there are exceptions - re-arrest is allowed if the release occurred due to:
A mistake by jail authorities, or
Failure of the decree-holder to deposit the subsistence allowance, or
Temporary release on medical grounds (illness).
Note - Total period of detention cannot exceed the maximum period prescribed under S. 58.
Question –
Why is a distinction made in the Code with regard to execution of regular decrees and
money decrees?
SHYAM SINGH VS COLLECTOR, DISTRICT HAMIRPUR,
UP (1993) SUPP 1 SCC 693
FACTS - In 1972, Shyam Singh obtained a loan of Rs. 34,000 from SBI to purchase a tractor. The tractor
was hypothecated with the Bank, and Shyam Singh’s 22 acres of land were mortgaged for the loan. Shyam
Singh paid Rs. 11,500 towards the installments and interest.
In July 1977, the Bank initiated recovery proceedings through the Tehsildar for an outstanding amount of
Rs. 44,872.60. On December 16, 1977, the Tehsildar ordered the attachment of the tractor, which was
taken from Shyam Singh's custody on December 26, 1977. The recovery proceedings showed the estimated
value of the tractor as Rs. 46,146.36, which was more than the total amount due.
Around July 24, 1981, a new proceeding was initiated under Section 11A of the U.P. Agricultural Credit
Act, 1973, (Section 11A allows the Bank to forward a certificate to the Collector, enabling the amount to
be recovered as arrears of land revenue for the recovery of the same amount) - leading to a notice for
the sale of the mortgaged 22 acres of land. Shyam Singh objected, arguing that the sale proceeds of the
tractor should be adjusted first before proceeding with the sale of the agricultural land, given the tractor's
estimated value - this objection was rejected by both the Revenue Authorities and the High Court.
Note - At the time of the Supreme Court appeal, it was not disclosed what happened to the attached
tractor or if any amount was recovered from its sale
The Supreme Court partially allowed Shyam Singh's appeal, and modified the High Court's
decision.
The Supreme Court directed the respondents (the Bank and the authorities) to first ascertain the
amount that has been recovered or is deemed to have been recovered from the tractor - only if the
total amount due to the Bank has not been fully realized from the tractor, would the respondents
then be at liberty to proceed with the sale of the 22 acres of mortgaged land.
The lands were deemed to be under attachment in view of the steps already taken under Section
279(1) of the U.P. Zamindari Abolition and Land Reforms Act.
Reasons:
The Court acknowledged that the U.P. Agricultural Credit Act, 1973, prescribes three distinct
procedures for loan recovery: 1. Section 10-B for movable property (like the tractor), 2. Section 11
for mortgaged immovable property, and 3. Section 11-A, which allows the Bank to forward a
certificate to the Collector for recovery as arrears of land revenue, attracting processes under
Section 279 of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
These processes under Section 279 can include attachment and sale of movable or immovable
property, and even arrest
While a creditor generally has the right to pursue different modes of recovery
separately or simultaneously, and that there is no statutory bar against concurrent
execution proceedings under the Civil Procedure Code (CPC), this right is not "unfettered,
unrestricted and absolute".
Drawing parallels with Section 51 and Order 21, Rule 21 of the CPC, the Court stated
that the discretion to order simultaneous execution must be exercised in a judicial manner.
Courts can (in special facts and circumstances) direct the creditor not to sell further
property if the amount due has already been or is likely to be realized by a mode
already opted. (Note here – mentioning of the The Padrauma Raj Krishna Sugar Works
Ltd. v. The Land Reforms Commissioner, U.P case)
In the current case, the tractor had been admittedly attached and taken into custody
by the Tehsildar under Section 10-B of the Act. Crucially, the recovery proceedings
themselves indicated that the estimated value of the tractor (Rs. 46,146.36) was more
than the total amount due from Shyam Singh.
A significant factor was that neither before the High Court nor the Supreme Court was
it disclosed what happened to the attached tractor or whether any amount had been
recovered from its sale, as required by Section 10-B(4) of the U.P. Agricultural Credit
Act, 1973.
The Bank's right to pursue different recovery modes does not extend to selling
different properties under different procedures without first ascertaining whether the
amount due has already been realized from the property already attached. It would be
unjust to proceed with the sale of land if the debt could be covered by the asset already
seized, especially when that asset's estimated value exceeded the debt.
PADRAUNA RAJKRISHNA SUGAR WORKS LTD VS LAND
REFORMS COMMISSIONER 1969 (1) SCC 485
The case involved Padrauna Rajkrishna Sugar Works Ltd. ('the Company'), which manufactured sugar and
supplied electricity.
By 1954, the Company faced severe financial difficulties. Its principal liabilities by July 1955 amounted
to Rs. 8,38,176-13-0, comprising income tax dues, sugarcane cess and arrears of cane price. These
amounts were recoverable as arrears of land revenue due to provisions in the Indian Income-tax Act,
1922, the U.P. Sugar Factories Control Act, 1938, and the Co-operative Societies Act 1912.
The Government of U.P. appointed the Collector as the Authorised Controller of the Company on July
14, 1954. On August 8, 1955, the Land Reforms Commissioner sanctioned the Collector's proposal to sell
the Company's property to realize the total amount of Rs. 8,38,176-13-0.
The Company's movables (tools, plant, spare parts, furniture) were valued at Rs. 7,64,817/- and its
lands and factory at Rs. 23,75,000/-. A sale proclamation was issued on October 4, 1955, with the sale
fixed for November 8, 1955.
Initially, only movables were offered for sale, with the highest bid being Rs. 2,75,000/-. The Collector
then sold the immovable property for Rs. 23,50,000/-, which was accepted. Subsequently, the movables
were also sold for Rs. 2,75,000/-. The purchaser of both lots was Cawnpore Sugar Works Ltd.
The Company challenged the sale of its property, claiming procedural irregularities
under land revenue recovery laws. Their initial plea to the Commissioner and a subsequent
writ petition to the Allahabad High Court were both dismissed.
The key legal issue was whether the Collector was required to first exhaust specific
recovery methods (like selling movables) before auctioning immovable property under
Section 286(2) of the U.P. Zamindari Abolition and Land Reforms Act.
Supreme Court’s holding - The Supreme Court finally held that the sale of the
Company's property was valid and not liable to be set aside, dismissing the Company's
appeal.
Reasons:
Interpretation of Recovery Powers for "Miscellaneous Dues": When sums like income-
tax, sugarcane cess, or cane price are made "recoverable as arrears of land revenue" by
other statutes (in this case - Indian Income-tax Act, 1922, U.P. Sugar Factories Control Act,
1938, Co-operative Societies Act 1912), the Collector is not bound to follow a specific
sequence of recovery processes as might be implied for traditional land revenue arrears
under Sections 279 and 286(1) of the U.P. Zamindari Abolition and Land Reforms Act.
While Section 286(2) of the UP Act allows recovery from immovable property for
sums "not due in respect of any specific land," it does not mandate exhausting
processes (a) to (e) of Section 279 (like selling movables or arrest) before resorting
to the sale of immovable property (f). The Collector is competent to resort to any
process prescribed by Section 279 in aid of recovery of such dues.
Restrictions on the Collector's power to recover dues under other statutes arise from
the statute that is the source of the liability, not from the U.P. Zamindari Abolition and
Land Reforms Act, 1951 , which merely sets out the recovery processes.
Specifically for income-tax dues, Section 46(2) of the Indian Income-tax Act, 1922,
grants the Collector powers similar to a Civil Court under the Code of Civil Procedure
(CPC), 1908. The CPC does not require selling movables or arresting the defaulter
before attaching immovable property; it allows for simultaneous execution.
To interpret Section 286(2) of the U.P. Act as imposing such a restriction would
effectively amend the substantive provisions of Acts like the Income-tax Act and the
CPC, which the U.P. Legislature is incompetent to do
While one High Court judge did observe that the Collector acted in violation of Section
286(2) by selling immovable property before movable property, he also concluded that
the sale could not be set aside because substantial injury was not shown to have been
caused. The Supreme Court ultimately agreed that the sale was not vitiated on the ground
of any material irregularity or mistake.
The Supreme Court rejected the Company’s additional arguments, including claims
about sugar stock possession, unnecessary sale of movables, and being blocked from
challenging the sale due to the buyer's official role - finding these unproven, not properly
raised earlier, or hypothetical.
Although the Court upheld the sale's legality, it criticized the Collector for selling
movables unnecessarily and ignoring the Income-tax Officer’s stay request, noting this
caused significant loss to the Company.
Each party was directed to bear its own legal costs.
JOLLY GEORGE VARGHESE VS THE BANK OF
COCHIN (1980) 2 SCC 360
“This litigation has secured special leave from us because it involves a profound issue of
constitutional and international law and offers a challenge to the nascent champions of
human rights in India whose politicised pre-occupation has forsaken the civil debtor
whose personal liberty is imperilled by the judicial process itself, thanks to Section 51
(Proviso) and Order 21, Rule 37, Civil Procedure Code. Here is an appeal by judgment-
debtors- the appellants-whose personal freedom is in peril because a court warrant for
arrest and detention in the civil prison is chasing them for non-payment of an amount
due to a bank-the respondent, which has ripened into a decree and has not yet been
discharged. Is such deprivation of liberty illegal?”
V.R. Krishna Iyer, J.
Facts:
The appellants (judgment-debtors) owed a decree amount of Rs. 2.5 lakhs to The Bank of Cochin
(respondent bank), along with other decrees totaling over Rs. 7 lakhs.
Despite their immovable properties being attached for sale and a Receiver appointed for their
management, the executing court issued a warrant for their arrest and detention in civil prison under
Section 51 and Order 21, Rule 37 of the Civil Procedure Code (CPC) for non-payment.
Imp – no investigation had been conducted by the executing court into the judgment-debtors' current
ability to clear the debts or any mala fide refusal on their part to discharge them.
The High Court had summarily dismissed the judgment-debtors' revision against the arrest order,
leading them to appeal to the Supreme Court
Supreme Court's Holding:
The Supreme Court set aside the judgment that allowed the arrest warrant. It directed the executing
court to re-adjudicate de novo the means of the judgment-debtors to discharge the decree in light of
the comprehensive interpretation provided by the Court.
The core of the holding is that imprisonment for debt is only permissible if there is an element of
dishonesty, bad faith, or wilful refusal to pay despite having the means, and not merely due to
genuine inability to pay arising from poverty
Interpretation of Section 51 CPC - Section 51 of the CPC allows for execution of a decree by
arrest and detention in prison. However, it heavily emphasized the Proviso to Section 51, which
states that detention in prison for a money decree shall not be ordered unless specific conditions
are met, such as the debtor likely absconding, committing acts of bad faith regarding property, or
having the means to pay but refusing or neglecting to do so.
The Court stated that "simple default to discharge is not enough" for imprisonment. It held that
there must be "some element of bad faith beyond mere indifference to pay, some deliberate or
recusant disposition in the past or, alternatively, current means to pay the decree or a substantial
part of it".
The Court specifically addressed the phrase "has had since the date of the decree, the means to
pay" in Section 51(b). It clarified that this cannot be superficially read to allow detention if a
debtor once had means but is now penniless without intervening dishonesty. Such an interpretation
would be "inhuman".
The Court concurred with the Law Commission's view that if a debtor "once had the means but
now has not, or if he has money now on which there are other pressing claims, it is bad in law to
arrest and confine him in jail so as to coerce him into payment".
Impact of International Law (Article 11 ICCPR): The Court considered Article 11 of the
International Covenant on Civil and Political Rights (ICCPR), which states: "No one shall be
imprisoned merely on the ground of inability to fulfil a contractual obligation". While
acknowledging that international treaties do not automatically become municipal law, the Court
stressed that domestic laws should be interpreted in accordance with a State's international
obligations. This international principle served to "inform judicial institutions and inspire legislative
action" within member States - The Court noted that its construction of Section 51 CPC "has the
flavour of Article 11"
Constitutional Mandate (Article 21):
The Court linked the issue to Article 21 of the Indian Constitution, which guarantees
"Protection of life and personal liberty" and mandates that any deprivation must follow a
procedure that is fair, just, and reasonable - "to cast a person in prison because of his poverty
and consequent inability to meet his contractual liability is appalling" and "flagrantly violative
of Article 21".
Such incarceration is permissible only if there is proof of "wilful failure to pay in spite of his
sufficient means and absence of more terribly pressing claims".
By interpreting Section 51 CPC to require a finding of dishonesty or wilful refusal despite
means, the Court harmonized the provision with both Article 11 of the ICCPR and Article 21 of
the Constitution - preventing the provision from being struck down as unconstitutional.
Need for Re-adjudication:
Given that the judgment-debtors' properties were under attachment and a Receiver
appointed, rendering their previous financial status obsolete, and given the absence of any
investigation into their current means or mala fide refusal, the Court deemed it necessary for
the executing court to conduct a fresh inquiry.
This inquiry must specifically examine their "present means... vis a vis the present pressures of
their indebtedness, or alternatively whether they have had the ability to pay but have improperly
evaded or postponed doing so or otherwise dishonestly committed acts of bad faith respecting
their assets"
SUBRATA ROY SAHARA VS UNION OF INDIA
(2014) 8 SCC 470
Origin of Dispute: The case stemmed from two Sahara Group companies, Sahara India Real Estate
Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL), which had
illegally collected thousands of crores of rupees from investors through Optionally Fully Convertible
Debentures (OFCDs).
Pattern of Defiance - From 2009 onwards, Subrata Roy Sahara, as the promoter, and the companies
exhibited a "demeanour of defiance" and "rebellious behaviour" towards regulatory authorities (SEBI) and
various courts, including the Securities Appellate Tribunal (SAT), the High Court, and the Supreme Court itself.
They stonewalled attempts to gather information by SEBI. Information provided for evaluation was
deemed "seriously doubtful," "totally unrealistic," and potentially "fictitious, concocted and made up".
Assertions of having refunded thousands of crores by cash were rejected as "farcical" and "outrageous,"
lacking authentic supporting material or banking transactions, despite the SEBI (FTM) and SAT orders
explicitly requiring refunds via demand draft or pay order.
The companies used "dilatory tactics" to delay compliance.
After an initial deposit of Rs. 5,120 crores on December 5, 2012, "not a single paisa has been deposited"
for approximately 17 months, despite the total amount due swelling to Rs. 36,608 crores
Court's Efforts to Secure Compliance: The Supreme Court provided "sufficient
opportunities" and a "long rope" to the contemnors.
◦ The Court conducted no less than 35 hearings after contempt proceedings began and
before the detention order of March 4, 2014.
◦ It attempted to "cajole" compliance, exploring "intermediary means" like proposals to
secure the amount through unencumbered immovable properties.
However, these proposals "turned out to be ploys to sidetrack and derail the process of
law" and were unilaterally withdrawn or found unacceptable.
◦ Sequentially harsher orders were issued, including restricting contemnors from leaving
the country and freezing all movable and immovable properties of the Sahara Group.
Detention Order: On March 4, 2014, the Court, "fully convinced that the contemnors have
not complied with our directions," ordered the arrest and detention of Subrata Roy Sahara
and two other directors in judicial custody at Delhi. This was done in exercise of powers
conferred under Articles 129 and 142 of the Constitution of India, with the sole purpose of
ensuring compliance of its previous orders
Holding: The Supreme Court upheld its order dated March 4, 2014, as valid and legally sound,
dismissing Subrata Roy Sahara's writ petition challenging his detention.
Reasons:
The Court found the detention order valid, stating that arrest and detention is a permissible and
recognized procedure for enforcing financial liabilities under both the Code of Civil Procedure (CPC) and
the Code of Criminal Procedure (CrPC).
The Court held that the order was not passed in violation of natural justice, as Subrata Roy Sahara and
the contemnors were given ample notice, numerous opportunities to be heard, filed affidavits, and even
received a personal oral hearing on March 4, 2014.
The Court rejected the plea for recusal due to alleged bias from the Bench, characterizing it as a tactic
born of "frustration" from being "cornered". It affirmed its duty to decide cases "without fear or favour,
affection or ill will".
The Court conclusively rejected the Sahara Group's claim of having already refunded most of the
OFCD amounts to investors by cash, finding it unsubstantiated and legally untenable given prior rulings
and the lack of verifiable proof.
The Court held that the writ petition itself was not maintainable. It clarified that a fresh writ petition
under Article 32 cannot be used to challenge a final judgment or order of the Supreme Court, especially
when no jurisdictional error or natural justice violation is proven.
Judicial Authority and Rule of Law: The judgment strongly asserted the "sacred obligation" of the
Supreme Court to compel obedience and observance of its orders to prevent a "breakdown of
constitutional functioning" and "mayhem"
On Jurisdiction and Power to Detain:
Court’s power to pass the detention order derived from Articles 129 (Supreme Court as a
Court of Record with contempt powers) and 142 (power to do "complete justice" and enforce
orders) of the Constitution.
Since the SEBI Act (under which the original orders were passed) did not provide an execution
mechanism, the Supreme Court's inherent and constitutional powers were necessary to enforce its
directions and prevent the orders from becoming a nullity.
The argument that arrest for a money decree was "unknown to law" was refuted by detailed
references to Sections 51, 55, and 58 of the CPC, which permit civil arrest and detention for debt
under specific conditions (e.g., absconding, dishonest transfer of property, or having means to pay
but refusing). It also cited Sections 125, 128, 357, 421, and 431 of the CrPC, which allow
arrest/imprisonment to enforce maintenance payments or compensation.
The Court determined that the conditions akin to Section 51 of CPC were indeed met: Subrata
Roy was likely to abscond (evidenced by previous travel restrictions), and he had the means to pay
but neglected or refused to do so (evidenced by Sahara Group's vast acknowledged assets and
lack of further deposits). His explanation for vast cash transactions was seen as indicative of
"dishonest transfers" or "bad faith"
On Natural Justice:
The Court meticulously documented the extensive procedural fairness afforded: Subrata Roy
was served with applications explicitly seeking his arrest and detention, he filed a personal
affidavit responding to these applications, numerous orders restricted his travel and froze
properties, putting him on clear notice of the gravity of the situation, and he was specifically
ordered to appear on Feb 26, 2014, and his exemption request was denied, leading to the non-
bailable warrant and subsequent arrest on March 4, 2014. Crucially, on March 4, 2014, Subrata
Roy Sahara was repeatedly heard by the Court until he had nothing further to state.
On Bias:
The Court dismissed allegations of bias as "frustration, arising out of being cornered into a
situation, wherefrom there is no escape". It emphasized that its role was enforcement of final
orders, not re-adjudication of merits or compromise.
The Court pointed to its own unilateral relaxation of bail conditions (offering interim bail for
Rs. 10,000 crores, less than a third of the amount due) as proof against having a "closed mind" or
being "unrelenting". It also stated that its "commitment" was to the Government of India (as the
ultimate recipient of unidentifiable investor funds), which did not constitute bias
On Redemption Theory:
The Court found Sahara's "redemption theory" to be a "tactic... to defeat the process of
law". It noted that the claim of cash refunds was unsupported by banking transactions, was
contrary to SEBI/SAT orders, and was inconsistent with the maturity periods of the OFCDs.
Furthermore, the auditors' certificates only confirmed cheque-based refunds (a small
percentage), but were "silent on the redemptions made by way of cash," further undermining
Sahara's claims.
Legally, the Court stated this defense was "no longer available" to Sahara, as it had been
rejected by a three-Judge Bench in its December 5, 2012 order, thus attaining finality.
Post Script on Abuse of Judicial Process:
The Court expressed "considerable concern" over the "grossly afflicted" Indian judicial
system due to "frivolous litigation" and "abuse of the judicial process”.
It lamented the "hundreds of Judge hours" consumed by this single Sahara Group litigation.
It strongly suggested that the legislature consider introducing a "Code of Compulsory Costs"
to deter "senseless and ill-considered claims" and ensure that litigants who lose after persistent
and baseless litigation compensate the successful party for their time and expense
ATTACHMENT (SECTIONS 60 TO 64 AND ORDER 21
RULES 41 TO 59)
Attachment is a process by which a court , at the request of a decree holder, designates
specific property owned by the judgment debtor, to be transferred to the decree holder, or
sold for the benefit of the decree holder.
The primary object of attachment is to give notice to the judgment debtor not to alienate the
property to anyone as also to the general public not to purchase or deal with the property
attached. Attachment is not a condition precedent for sale.
Section 64 provides that any private transfer or delivery of property attached shall be
void. However, the section does not apply to any private transfer or delivery of the property
attached made in pursuance of a contract entered into and registered before the attachment.
Section 60 provides a non-exhaustive list of all properties liable to attachment that are
“saleable”; it also provides a list of items that cannot be attached and sold. Under section
60(1-A) no person can waive the benefit of these exemptions from attachment. Section 61
provides that the State Government may exempt agricultural produce from attachment.
Section 62 imposes safeguards to be observed whilst attaching property.
Section 63 provides that if the same property is under attachment in execution of decrees of
more than 1 court, then the Court entitled to deal with the property shall be the court of the
highest grade or the court which first attached the property.