Modes Of Execution 21k28

Modes of Execution Process of execution of decree or order of civil courts commences by filing petition for execution. Provisions of Section 36-74 and Order 21 of C in itself dealing with different facets of execution. When a decree comes up for execution, a natural question arises as to how court will proceed to execute the decree. It largely depends upon the nature of the decree For example if the decree is for recovery of money the court will adopt different position from than in case of decree of partition Section 51 provides basic powers of court to enforce execution.It has a very wide scope and gives option to decree holder of enforcing a decree by several modes available under the Code

Delivery of property (1) Movable property(section 51(a), Rule 31) Section 51(a) provides that a decree can be executed by delivery of any property specifically decreed. Order 21 Rule 31 provides that Where the decree is for any specific movable, or for any share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive the delivery on his behalf, or by the detention in the civil prison of the judgment debtor, or by the attachment of his property or by both.

(2) Immovable property Rule 35-36 Rule 35 Similarly Order 21 rule 35 C provides that where a decree is for the delivery of any immovable property possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf and if necessary by removing any person bound by the decree who refuses to vacate the property.

Rule 36 Order 21 rule 36 says that where the decree is for immovable property in the occupancy of the tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of warrant in some conspicuous place on the property, and

proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.

Case law In Shamsuddin v Abbas Ali Srivastava J, discussed the ambit and scope of rules 35 and 36

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Formal or symbolic possession is delivered by fixing a copy of the warrant in some conpicuous place of the property and proclaiming by the beat of drum or other customary mode at some convenient place the substance of the decree. If the immovable property is under the possession of the judgment debtor, the actual possession must be transferred to the decree holder. Where it is in the possession of a tenanat or other person entitled to occupy the same, only symbolic possession can be delivered and that has to be done under rule 36.

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The rule does not free access to the officers of the court and have to give reasonable warning and facility to a pardanashin lady to withdraw (B. Gangadhar v B.G.Rajalingam 1995 5SCC 238)

(3) Attachment and sale of property 51(b) 1. Clause (b) of section 51 says that court may enforce the execution of any property by attachment and sale or by sale w/o attachment 2. The power is subject to conditions and limitations as may be prescribed by rules 3. Section 60 provides the list of property not liable to be attached Properties liable to be attached u/s 60(not exhaustive) land houses/other buildings goods money bank notes cheque/bills of exchange promissory notes.

(4) Arrest and detention (section 51(c)) One of the modes of executing a decree is arrest and detention in a civil prison of the judgment debtor It is upto the decree holder to decide which mode of execution he will choose and whether if he prays for arrest and detention of the judgment debtor. However, court in the absence of special circumstances cannot compel the decree-holder not to insist upon mode of execution. But Clause(c) is subject to the proviso

Proviso lays down that where the decree is for payment of money, execution by detention should not be ordered unless, the judgment debtor has been given opportunity to show cause that why he should not be detained and court should be satisfied of reasons that Judgment debtor with the object of obstructing or delaying the execution of the decree is likely to abscond or leave the local limits of the jurisdiction of the court has after the institution of the suit and ing of decree, dishonestly transferred, concealed or removed any part of property or committed any act under bad faith in relation to his property judgment debtor since the date of decree has neglected or refused to pay the amount or substantial part given in decree the decree is for sum when judgment debtor was bound in fiduciary capacity. The provisions are mandatory and must be strictly complied with. They are not punitive in character, however their purpose is twofoldIt enables decree holder to realize fruits of the decree ed in favour It protects the judgment debtor who is not in a position to pay the dues for reasons beyond his control. Therefore mere failure to pay amount does not justify arrest

(5)Appointment of the receiver (section 51(d)) The power of court to appoint a receiver in execution proceedings has to be ascertained having regard to Order 40 rule 1(a). It expressly authorizes court to appoint a receiver where it appears to the court to be just and convenient and this power may be exercised of any property whether before or after the decree. The appointment of the receiver has to benefit both the judgment debtor and decree holder

Powers of executing court 1. Plenary power to determine all questions related to execution of a decree. 2. Section applies only to matters arising subsequent to ing of the decree. 3. Court can treat a suit as a execution application if interests to further the ends of justice. 4. Court can mold relief in the light of changed circumstances. (Yahspal Singh v ADJ)

Duties of executing court 1. It cannot question correctness of decree 2. It has to execute the decree as it is. 3. Where the are vague or ambiguous, it is duty of the courtto interpret the decree with a view to find out and ascertain the meaning of the term used. (V Ramaswami v Kailasa Therva AIR 1951 SC 189)