(C.P.
Code)
EXECUTION
Execution Scheme
under the Code
Decrees and Substantive
Orders are Law - Part II
“Enforced / (Ss.36 to 74);
implemented” Procedural
through Aspect - O.
execution; XXI;
Executing Court (S. 37)
The Court “which passed” a
decree;
Ifpassed in exercise of appellate
Jurisdiction -
The Court of first instance or;
Notional first instance;
Transferee Court is also an Executing Court
(S. 38);
Transfer of Decree for
Execution (S. 39)
From Court passing decree to another Court:-
In whose jurisdiction judgement debtor is based;
Or where he holds sufficient property to satisfy
decree;
If subject matter is sale / delivery of property
situated in the local jurisdiction of Transferee
Court;
For any other reason to be recorded by Court;
Scope & Powers of Executing
Court to decide controversies
All questions relating to
execution, discharge or
satisfaction of decree to
be determined by
Executing Court, and not
by separate suit (S. 47);
Scope & Powers of Executing
Court to decide controversies-II
Executing Court cannot “go behind the
decree” except when the decree is a
nullity;
Decree is a nullity if:-
Passed against a dead man;
The Court passing it lacks “Inherent
Jurisdiction”;
Powers of Court to enforce
Execution (S. 51)
Means of Execution:-
a. Delivery of property specifically decreed;
b. Attachment & sale / sale without attachment;
c. Arrest and detention in prison ;
d. By appointment of receiver;
e. In any other manner as the nature of relief granted may
require;
Decree enforceable against legal representatives /
ancestral property (Ss. 52 & 53);
Arrest and Detention (S. 55 )
Judgement debtor may be arrested in
execution of decree at any hour on any day
(subject to compliance of prescribed
formalities);
To be brought before Court as soon as
practicable;
Women exempted from arrest or detention
in execution for payment of money (S. 56);
Arrest and Detention- II
Period of detention (S. 58):-
Up to 3 months if value of decree
exceeds Rs. 5,000/-;
Up to 6 weeks if value exceeds Rs.
2,000/-;
No detention if decretal amount is
below Rs. 2,000/- [S.58 (1A)];
Attachment
•Concept of
“Attachment”
envisages taking
over the properties /
assets of judgement
debtor to satisfy
decree;
Attachment-II
Properties liable to be Attached (S.
60):-
All conceivable movable and
immovable properties such as
lands, buildings / houses, goods,
money, bank accounts, Government
securities, bonds, Corporate shares,
salaries, rents etc. held by
judgement debtor, or someone else
on his behalf ;
Attachment-II
Properties exempt from Attachment :-
Include necessary personal items including
those of wife and children;
The tools of artisans / implements of cultivators;
Houses /buildings of agriculturists, labourers or
domestic servants;
Rights of personal service;
Stipends and gratuities allowed to Government /
other authorized pensioners;
Attachment-II
Properties exempt from Attachment
(Contd.):-
Wages of labourers and domestic
servants;
Salaries up to Rs. 1,000/- and 2/3 of
the remainder except in
maintenance cases;
Salaries of Military personnel;
Deposits in Provident Funds;
Moneys payable under insurance
policy on judgment debtor’s life etc.;
Other Elementary Provisions (O.
XXI)
Notice of Execution (R. 22):-
Not required except (1) :-
If filed over two years after date of
decree;
Against legal representative of a
party to decree;
Against assignee or receiver in
insolvency;
In any other case thought fit by
Court (2);
Stay of Execution (R. 26)
Execution may be stayed by Executing
Court:-
On sufficient cause being shown;
To enable judgment debtor to approach
Original Court which passed decree or;
To approach Appellate Court;
Executing Court may order restitution of any
property seized (2);
Executing Court to require appropriate
security or impose conditions upon
judgment-debtor before ordering stay (3);
Resistance /Obstruction to possession of
Immovable Property (R.97)
Decree holder /purchaser of
decretal property may apply to
Court if resisted or obstructed by
any person in obtaining possession;
In such cases Court expected to
pass order which would take into
account recurrence of such
resistance for effecting execution
again;
Dispossession of Third Party by
Decree Holder / Purchaser (R. 99)
Courtmay direct restoration of
possession (R. 100);
Allsuch questions to be
determined by the executing
Court itself, and not through a
separate suit (R. 101);
