ORDER XXI(1-30) – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XXI. EXECUTION OF DECREES AND ORDERS

 

ORDER XXI. EXECUTION OF DECREES AND ORDERS

 

Payment under decree

 

1[1. Modes of paying money under decree

 

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

 

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

 

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

 

(c) otherwise, as the Court which made the decree, directs.

 

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

 

(3) Where money is paid by postal money order or through a bank under clause (a) or clause (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.]

 

HIGH COURT AMENDMENT

 

Orissa.-

In Order XXI, in rule 1, after the word “decree” wherever it occurs, insert the words “or order”. (w.e.f. 14-5-1984).

 

1. Subs, by Act No. 104 of 1976, sec. 72, for rule 1 (w.e.f. 1-2-1977).

 

2. Payment out of Court to decree-holder

 

(1) Where any money payable under a decree of any kind is’paid out of Court 1[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 1[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.

 

2[(2A) No payment or adjustment shall be recorded at the instance of the Hidgment-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(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

 

1. Subs, by Act No. 104 of 1976, s. 72, for certain words (w.e.f. 1-2-1977).

 

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

3. In the application of the Act, to Punjab, sub-rule (3) has been repealed by the Punjab Relief of Indebtedness Act, 1934 (Pun. 7 of 1934), sec. 36

 

STATE AMENDMENT

 

Punjab, Haryana and Chandigarh.-

In Order XXI, in rule (2), omit sub-rule (3).

 

[Vide Punjab Relief Indebtedness Act, 1934 (Punjab Act VII of 1934, sec. 36 (w.e.f. 19-4-1935) read with Punjab Act XLIV of 1960, sec. 3 (w.e.f. 30-12-1960); see also Act 31 of 1966, secs. 29 and 32 (w.e.f. 1-11-1966).]

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-

Same as in Madras.

 

Bombay.-

In Order XXI, in rule 2, in sub-rule (2), after the words “inform the Court”, insert the words “by an application in writing supported by an affidavit”, (w.e.f. 1-10-1983)

 

Delhi.-

Same as in Punjab.

 

Himachal Pradesh.-

Same as in Punjab.

 

Madras.-

In Order XXI, in rule 2, for sub-rule (2), substitute the following sub-rule, namely:-

 

“(2) Any person to the suit or his legal representatives or any person who has become surety for the decree-debt also may inform the Court to such payment or adjustment and apply to the Court to issue 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 shall record the same accordingly.”

 

Orissa.-

Same as in Patna (i).

 

Patna.-

(i) In Order XXI, in rule 2, in sub-rule (2), for the words “and if, after service of such notice”, substitute the words “and where certification has been made by an endorsement of such payment or adjustment by the decree-holder or by any person authorised by him in that behalf upon the process issued by the Court, the Court shall issue such notice of its own motion. If after service of the notice”.

 

(ii) Omit sub-rule (3). (w.e.f. 5-4-1961)

 

Courts executing decrees

 

3. Land
s situate in more than one jurisdiction

Where immovable property forms one estate or tenure situate within the local limits of jurisdiction of two or more Court, any one of such Courts may attach and sell the entire estate or tenure.

 

4. Transfer to Court of Small Causes

Where a decree has been passed in a suit of which the value as set forth in the plaint did not exceed two thousand rupees and which, as regards its subject-matter, is not excepted by the law for the time being in force from the cognizance of either a Presidency or a Provincial Court of Small Causes, and the Court which passed it wishes it to be executed in Calcutta, Madras or Bombay, such Court may send to the Court of Small Causes in Calcutta, Madras or Bombay, as the case may be, the copies and certificates mentioned in rule 6; and such Court of Small Causes shall thereupon execute the decree as if it had been passed by itself.

 

HIGH COURT AMENDMENT

 

Bombay.-

In Order XXI,-

 

(i) renumber rule 4 as sub-rule (1) threof;

 

(ii) in sub-rule (1) as so renumbered, omit the words “or Bombay” wherever they occur;

 

(iii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

 

“(2) A decree in a suit of the nature described in sub-rule (1) but in which the value as set forth in the plaint did not exceed rupees ten thousand may be sent for execution to and be executed by the Presidency Court of Small Causes at Bombay in the manner prescribed in sub-rule (1).” (w.e.f. 1-10-1983)

 

Gujarat.-

Same as in Bombay.

 

1[5. Mode of transfer

Where a decree is to be sent for execution to another Court, the Court which passed such decree shall send the decree directly to such other Court whether or not such Court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction.]

 

1. Subs. by Act No. 104 of 1976, for rule 5 (w.e.f. 1-2-1977).

 

6. Procedure where Court desires that its own decree shall be executed by another Court

 

The Court sending a decree for execution shall send-

 

(a) a copy of the decree;

 

(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and

 

(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order XXI –

 

(i) renumber rule 6 as sub-rule (1) thereof;

 

(ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

 

“(2) Such copies and certificates may, at the request of the decree-holder, be handed over to him or to such person as he appoints, in a sealed cover to be taken to the Court to which they are to be sent.”

 

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.] ,

 

Madras.-

In Order XXI, aft
er rule 6, insert the following rule, namely:-

“6A. A copy of the judgment bearing the formule executoire, sent by a Court in the Union Territory of Pondicherry, shall be deemed to be a decree and to comply with the requirements of rule 6:

 

Provided that notwithstanding anything contained in rule 2, where any question as to the satisfaction or the discharge in whole or in part, of such a decree arise, the Court executing the decree shall decide it.” (w.e.f. 15-3-1967)

 

Orissa.-

Same as in Patna.

 

Patna.-

In Order XXI, in rule 6, in clause (a), after the word “decree” insert the following words, namely:-

 

“and a copy of the suit register relating to the suit in which the decree was passed and a memorandum showing the costs allowed to the decree-holder subsequent to the passing of the decree”.

 

7. Court receiving copies of decree, etc. to file same without proof

The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.

 

8. Execution of decree or order by Court to which it is sent

Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such or be transferred for execution to any subordinate Court of competent jurisdiction.

 

9. Execution by High Court of decree transferred by other Court

Where the Court to which the decree is sent for execution is a High Court, the decree shall be executed by such Court in the same manner as if it had been passed by such Court in exercise of its ordinary original civil jurisdiction.

 

HIGH COURT AMENDMENT

 

Kerala.-

In Order XXI, omit rule 9. (w.e.f. 9-6-1959)

 

Application for execution

 

10. Application for execution

Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.

 

HIGH COURT AMENDMENTS

 

Delhi,-Same as in Punjab.

 

Himachal Pradesh.-Same as in Punjab.

 

Punjab.-In Order XXI, in rule 10, insert the following proviso, namely:-

“Provided that if the judgment-debtor has left the jurisdiction of the Court which passed the decree, or of the Court to which the decree has been sent, the holder of the decree may apply to the Court within whose jurisdiction the judgment-debtor is, or to the officer appointed in the behalf, to order immediate execution on the production of the decree and of an affidavit of non-satisfaction by the holder of the decree pending the receipt of an order of transfer under section 39.”

 

[Vide Notification No. 125-Gaz. XI-Y-14, dated 7th April, 1932.]

 

11. Oral application

(1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, pri
or to the preparation of a warrant if he is within the precincts of the Court.

 

(2) Written application-Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely-

 

(a) the number of the suit;

 

(b) the names of the parties;

 

(c) the date of the decree;

 

(d) whether any appeal has been preferred from the decree;

 

(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;

 

(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

 

(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;

 

(h) the amount of the costs (if any) awarded;

 

(i) the name of the person against whom execution of the decree is sought; and

 

(j) the mode in which the assistance of the Court is required whether-

 

(i) by the delivery of any property specifically decreed;

 

1[(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;]

 

(iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver;

 

(v) otherwise, as the nature of the relief granted may require.

 

(3) The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.

 

1. Subs, by Act No. 104 of 1976 for sub-clause (ii) (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, in rule 11, in sub-rule (2),-

 

(i) for clause (f), substitute the following clause, namely:-

 

“(f) the date of the last application, if any;”

 

(ii) insert the following proviso, namely:-

 

“Provided that when the applicant files with his application a certified copy of the decree, the particulars specified in clauses (b), (c) and (h), need not be given in the application.”

 

[Vide Notification No. 4048/35(a)-3(7), dated 24th July, 1926.]

 

(iii) In Order XXI, in rule 11, after sub-rule (3), insert the following sub-rule, namely:-

 

“(4) Where a decree for money is sought to be executed under sub-rule (2) by the arrest and detention in prison of the judgment-debtor, the application shall also state on which of the grounds mentioned in the proviso to section 51, detention is claimed.”

 

[Vide Notification No. 92/X-14, dated 19th May, 1956.]

 

Andhra Pradesh.-Same as in Madras. Karnataka.-In Order XXI, in rule 11, in sub-rule (2),-

 

(i) after clause (f), insert clause (ff) as in Madras with the omission of the word “original” before “decree-holder”;

 

(ii) in clause (j), after sub-clause (v), inser
t para as in Madras (b) (w.e.f. 30-3-1967).

 

Kerala.-In Order XXI, in rule 11, in sub-rule (2}, after clause (f),-

(i) insert the following clause, namely:-

 

“(ff) whether the original decree-holder has transferred any part of his interest in the decree, and if so, the date of the transfer and the name and address of the parties to the transfer;”

 

(ii) for clause (j), substitute the following clause, namely:-

 

“(j) the mode in which me assistance of the Court is required, whether- (i) by the delivery of any property, specifically decreed; (ii) by the attachment and sale, or by the sale without attachment, of any property;

 

(iii) by the arrest and detention in prison of any person;

 

(iv) by the appointment of a receiver;

 

(v) otherwise, as the nature of the relief granted may require.

 

In an execution petition praying for relief by way of attachment of a decree of the nature specified in sub-rule (1) of rule 53 of this Order, there shall not be included any other relief mentioned in this clause.” (w.e.f. 9-6-1959).

 

Madhya Pradesh.-In Order XXI, in rule 11, in sub-rule (2), insert the following proviso, namely:-

 

“Provided that when the applicant files with his application a certified copy of the decree the particulars specified in clauses (b), (c), and (h) need to be given in the application.”

 

[Vide Notification No. 3409, dated 26th, June, 1943.]

 

Madras.-In Order XXI, in rule 11, in sub-rule (2),-

 

(a) after clause (f), insert the following clause, namely:-

 

“(ff) whether the original decree-holder has transferred any part of his interest in the decree and if so, the date of the transfer and the name and address of the parties to the transfer;”

 

[Vide P Dis. No. 776 of 1929.]

 

(b) in clause (j), after sub-clause (v), insert the following para, namely:-

 

“In an execution petition praying the relief by way of attachment of a decree of the nature specified in sub-rule (1) of rule 53 of this Order, there shall not be included any other relief mentioned in this clause.”

 

[Vide G.O. Ms. No. 2084-Home, dated 2nd September, 1936, H.C.P. Dis. No. 691, dated 13th October, 1936.]

 

(c) insert the following proviso, namely:-

 

“Provided that when the applicant files with his application a certified copy of the decree, the particulars specified in clauses (b), (c) and (h) need not be given in the application.”

 

Patna.-In order XXI, in rule 11,-

 

(a) after sub-rule (1), insert the following sub-rule, namely:-

 

“(1A) Where an order has been made under section 39 for the transfer of a decree for the payment of money for execution to a Court within the local limits of the jurisdiction of which the judgment-debtor resides, such Court may on the production by the decree-holder of a certified copy of the decree and an affidavit of non satisfaction forthwith order immediate execution of the decree by the arrest of the judgment-debtor.”

 

(b) in sub-rule (2), for the words and figure “sub-rule (1)”, substitute the words and figures “sub-rules (1) and (1A)”.

 

(c) in sub-rule (2), omit clauses (b), (c), (d), (f) and (h). (w.e.f. 5-4-1961)

 

1[11A. Application for arrest t
o state grounds

 

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

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

12. Application for attachment of movable property not in judgment-debtor’s possession

 

Where an application is made for the attachment of any movable property belonging to a judgment-debtor in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.

 

13. Application for attachment of immovable property to contain certain particulars

 

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

 

(a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and

 

(b) a specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

 

14. Power to require certified extract from Collector’s register in certain cases

 

Where an application is made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing any transferable interest in, the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.

 

HIGH COURT AMENDMENT

 

Kerala.-In Order XXI, in rule 14, in the marginal note for the words “Collector’s register in certain cases”, substitute the words “registers of revenue accounts”. In the body of the rule for the words “in the office of the Collector”, substitute the words “in the revenue accounts”. (w.e.f. 9-6-1959)

 

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.

 

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 is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed 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 sha
ll 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.

 

1[Explanation.-Nothing in this rule shall affect the provisions of section 146, 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.]

 

HIGH COURT AMENDMENTS

 

Bombay.-In Order XXI, in rule 16,-

(i) in para 1, after the words “to the Court which passed it”, insert the words “or to the Court which it has been sent for execution”.

 

(ii) after the first proviso, insert the following proviso, namely:-

 

“Provided further that where the transferee Court holds the assignment proved, it shall forthwith communicate its decision in that behalf to the Court which passed the decree, and the latter Court shall make an entry in the Register of Suits indicating that the assignment has been held to be proved.”

 

(iii) renumber Explanation as Explanation II;

 

(iv) before Explanation JI as so renumbered, insert the following Explanation namely:-

 

“Explanation 1.-In an application under this rule, any payment of money made under a decree or any adjustment in whole or in part of the decree arrived at to the satisfaction of the decree-holder, which payment or adjustment has not been certified or recorded by the Court under rule 2 of this Order, shall not be recognised by the Court entertaining the application.” (w.e.f. 1-10-1983)

 

Calcutta.-In Order XXI, in rule 16, in the first proviso for the words “and the decree shall not be executed until the Court has heard their objections (if any) to its execution”, substitute the following words, namely:-

 

“and until the Court has heard their objections (if any) the decree shall not be executed provided that if, with the application for execution, an affidavit by the transferor admitting the transfer or an instrument of transfer duly registered be filed, the Court may proceed with the execution of the decree pending the hearing of such objections”.

 

[Vide Notification No. 3516-G, dated 3rd February, 1993.]

 

Gauhati.-Same as in Calcutta.

 

Gujarat.-In Order XXI, in rule 16, same as in Bombay (iii) and (iv).

 

Madhya Pradesh.-In Order XXI, in rule 16, after the words “to the Court which passed it”, insert the words” or to any Court for which it has been sent for execution”, (w.e.f. 16-9-1960}

 

Orissa.-Same as in Patna.

 

Patna.-In Order XXI, in rule 16, for the first proviso, substitute the following proviso, namely:-

 

“Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor unless an affidavit of the transferor admitting the transferor is filed with the application and the decree shall not be executed until the Court has heard his objection (if any) to its execution.”

 

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

 

17. Procedure on receiving application for execution of decree

(1) On
receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirement’s of rules 11 to 14 as may be applicable to the case have been complied with; and if, they have not been complied with, 1[the Court shall allow] the defect to be remedied then and there or within a time to be fixed by it.

 

2[(1A) If the defect is not so remedied, the Court shall reject the application:

 

Provided that where, in the Court, there is some inaccuracy as to the amount referred to in clauses (g) and (h) of sub-rule (2) of rule 11, the Court, instead of rejecting the application, decide provisonally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for the amount so provisionally decided.]

 

(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

 

(3) Every amendment made under this rule shall be signed or initialled by the Judge.

 

(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application:

 

Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Karnataka.-Same as in Madras, with omission of the words “or order” in both places where they occur.

 

Kerala.-Same as in Madras.

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madras.-In Order XXI, after rule 17, insert the following rule, namely:-

 

“17A. Where an application is made to a Court for the execution of a decree or order passed against a defendant in respect of whom service of summons has been dispensed with under rule 31 or Order V, the Court shall ordinarily direct stay of the execution of the decree or order against such defendant till the expiry of a period of one year after cessation of hostilities with the State in whose territory such defendant was resident:

 

Provided that the Court may, if it considers that the interests of justice so require, order execution on such terms as to security, or, otherwise as it thinks fit.”

 

[Vide ROC No. 2108, dated 29th March, 1945.]

 

1. Subs, by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

 

2. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

 

18. Execution in case of cross-decrees

 

(1) Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court, then-

 

(a) if the two sums are equal, satisfaction shall be entered upon both decrees; and

 

(b) if the two sums are unequal execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller s
um, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum.

 

(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.

 

(3) This rule shall not be deemed to apply unless-

(a) the decree holder in one of the suits which the decrees have been made is the judgment-debtor in the other and each party files the same character in both suits; and

 

(b) the sums due under the decrees are definite.

 

(4) The holder of a decree passed against several persons jointly and severally may treat is as a cross-decree in relation to a decree against him singly in favour of one or more of such persons.

 

Illustrations

 

(a) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.

 

(b) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtain a decree for Rs. 1,000 against B. C cannot treat his decree as a cross-decree under this rule.

 

(c) A obtains a decree against B for Rs. 1,000. C, who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000. B cannot treat C’s decree as a cross-decree under this rule.

 

(d) A, B, C, D and E are jointly and severely liable for Rs. 1,000 under a decree obtained by F. A obtains a decree for Rs. 1,000 against F singly and applies for execution to the Court in which the joint-decree is being executed. F may treat his joint-decree as cross-decree under this rule.

 

HIGH COURT AMENDMENT

 

Madhya Pradesh.-In Order XXI, for rule 18, substitute the following rule, namely:-

 

“18. (1) Where decree-holders apply to a Court for execution of cross-decrees in separate suits between the same parties for the payment of two sums of money passed and capable of execution at the same time by such Court, then-

 

(a) if the two sums are equal, satisfaction shall be entered upon both decrees;

 

(b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum:

 

Provided that-

(i) each party fills the same character in both suits, and

 

(ii) the sums due under the decree are definite.

 

(2) This rule shall be deemed to apply when either applicant is an assignee of one of the decrees as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself: Provided that-

 

(i) where the decrees were passed between the same parties, each party fills the same character in each suit;

 

(ii) where the decrees were not passed between the same parties, the decree-holder in one of the suits is the judgment-debtor in the other suit and fills the same character in both suits; and

 

(iii) the sums due under the decrees are definite.

 

(3) The holder of a decree passed against several persons jointly and severally may treat it as a c
ross-decree in relation to a decree passed against him singly in favour of one or more of such persons.” (w.e.f. 16-9-1960)

 

19. Execution in case of cross-claims under same decree

 

Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then-

 

(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and

 

(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.

 

20. Cross-decrees and cross-claims in mortgage-suits

The provisions contained in rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge.

 

21. Simultaneous execution

The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.

 

22. Notice to show cause against execution in certain cases

(1) Where an application for execution is made,-

 

(a) more than 1[two years] after the date of the decree, or

 

(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A, [or]

 

2[(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent,]

 

the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him :

 

Provided that no such notice shall be necessary in consequence of more than 3[two years] having elapsed between the date of the decree and the application for execution if the application is made within 3[two years] from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

 

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order XXI, in rule 22, in sub-rule (2), insert the following proviso, namely:-

 

“Provided that no order for the execution of a decree shall be invalid by reason of the omission to issue a notice under this rule, unless the judgment-debtor has sustained substantial injury by reason of such omission.” (w.e.f. 21-6-1957)

 

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 22, after sub-rule (2), insert the following sub-rule, namely:-

 

“(3) Notwithstanding anything contained in sub-rules (1) and (2) above, no order for the execution of a decree shall be invalid merely by reason of the omission to issue a notice under this rule, unless t
he judgment-debtor has sustained injury by reason of such omission.” {w.e.f. 1-11-1966).

 

Calcutta.-In Order XXI, in rule 22, after sub-rule (2), insert the following sub-rule, namely:-

 

“(3) Omission to issue a notice in a case where notice is required under sub-rule (1), or to record reasons in a case where notice is dispensed with under sub-rule (2), shall not affect the jurisdiction of the Court in executing the decree.”

 

[Vide Notification No. 3516-G, dated 3rd February, 1993.]

 

Delhi.-Same as in Punjab.

 

Gauhati.-Same as in Calcutta.

 

Karnataka.-In Order 21, for rule 22, substitute the following rule, namely:-

“22. (1) Where an application for execution is made-

 

(a) more than two years after the date of decree, or

 

(b) against the legal representative of a party to the decree, or

 

(c) where the party to the decree has been declared insolvent against tine assignee or receiver in insolvency, or

 

(d) for the execution of a decree filed under the provisions of section 44A of this Code, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

 

Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him,

 

(2) Where from the particulars mentioned in the application in compliance with rule 11(2)(ff) of this order or otherwise the Court has information that the decree-holder has transferred any part of his interest in the decree, the Court shall issue notice of the application to all parties to such transfer other than the petitioner, where he is a party to the transfer.

 

(3) Nothing in the foregoing sub-rules shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice hereby prescribed, if for reasons to be recorded in writing the Court considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice:

 

Provided that no order for the execution of a decree shall be invalid owing to the omission of the Court to issue a notice as required by sub-rule (1) or to record its reasons where notice is dispensed with under sub-rule (3) unless the judgment-debtor has sustained substantial injury as a result of such omission.” (w.e.f. 30-3-1967)

 

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

 

Madhya Pradesh.-In Order XXI, in rule 22, in sub-rule (2), insert proviso as in Allahabad.

 

[Vide Notification No- 3409, dated 29th June, 1943.]

 

Madras.-In Order XXI, in rule 22,-

(a) after sub-rule (1), insert the following sub-rule, namely:-

 

“(1A) Where from the particulars mentioned in the application in compliance with rule 11(2) (ff) supra or otherwise the Court has information that the original decree-holder has transferred any part of his intere
st in the decree, the Court shall issue notice of the application to all parties to such transfer other than the petitioner, where he is a party to the transfer.”

 

(b) in sub-rule (2), insert the following proviso, namely:-

“Provided that no order for execution of a decree shall be invalid owing to the omission of the Court to record its reasons unless the judgment-debtor has sustained substantial injury as the result of such omission.”

 

Orissa.-Same as in Parna.

 

Patna.-In Order XXI, in rule 22,-

 

(a) for sub-rule (1), substitute the following sub-rule, namely:-

 

“(1) Where an application for execution is made in writing under rule 11(2} the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed why the decree should not be executed against him.”

 

(b) after sub-rule (2), insert the following sub-rule, namely:-

 

“(3) Proceedings held in execution of a decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under sub-rule (1) or to record reasons where such notice is dispensed with under sub-rule (2) unless the judgment-debtor has sustained substantial injury thereby.” (w.e.f. 9-5-1947)

 

Punjab.-In Order XXI, in rule 22, in sub-rule (2), at the end, insert the following words, imely:-

 

“Failure to record such reasons shall be considered an irregularity not amounting to a defect in jurisdiction.”

 

[Vide Notification No. 125-Gaz XI-Y-14, dated 7th April, 1932.]

 

1. Subs, by Act No. 104 of 1976, for “one year” (w.e.f. 1-2-1977).

 

2. Ins. by Act No. 104 of 1976(w.e.f. 1-2-1977).

 

3. Subs, by Act No. 104 of 1976 for ‘one year’ (w.e.f. 1-2-1977).

 

1[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.]

 

1. Subs, by Act No. 104 of 1976, for “one year” (w.e.f. 1-2-1977).

 

23. Procedure after issue of notice

 

(1) Where the person to whom notice is issued under 1[rule 22] does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed the Court shall order the decree to be executed.

 

(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.

 

1. Subs, by Act No. 38 of 1978, for “the last preceding rule”.

 

Process for execution

 

24. Process for execution

(1) When the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

 

(2) Every such process shall bear date the day on which it is issued, and shall be signed by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.

 

1[(3)] In every such process, a day shall be specified on or before which it shall be executed and a day shall also be specified on or before which it shall be returned to the Court, but no process shall be deemed to be void if no day for its return is specified therein.]

 

HIGH COURT AMENDMENTS

 

Bombay.-In Order XXI, in rule 24, in sub-rule (2), insert the following proviso, namely:-

 

“Provided that a Civil Judge, Senior Division, may in his special jurisdiction, send the process to another Court in the same district for execution by the proper officer in that Court.” (w.e.f. 1-10-1983)

 

Gujarat.-In Order XXI, in rule 24, in sub-rule (2), insert the following proviso, namely:-

 

“Provided that a Civil Judge, Senior Division, may, in exercise of his special jurisdiction, send a process to another subordinate Court in the same district for execution by the proper officer in that Court.” (w.e.f. 17-8-1961)

 

1. Subs, by Act No. 104 of 1976 s. 72, for sub-rule (3) (w.e.f. 1-2-1977).

 

25. Endorsement on process

 

(1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason of the delay, or, if it is executed, the reason why it was not executed, and shall return the process with such endorsement to the Court.

 

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court shall examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, in rule 25, in sub-rule (2), for the words “shall examine him”, substitute the words “may examine him personally or upon affidavit”.

 

[Vide Notification No. 2381/35(a)7(3), dated 7th September, 1918.]

Andhra Pradesh.-Same as in Madras.

 

Bombay.-In Order XXI, in rule 25, in sub-rule (2), insert the following proviso, namely:-

 

“Provided that an examination of the officer entrusted with the execution of a process by the Nazir or the Deputy Nazir under the general or special orders of the Court shall be deemed to be sufficient compliance with the requirements of this rule.” (w.e.f. 1-10-1983)

 

Gujarat.-Same as in Bombay.

 

Karnataka.-In Order XXI, for rule 25, substitute the following rule, namely:-

“25. (1) The officer entrusted with the execution of the process shall endorse thereon the day on which and the manner in which it was executed, and if the latest day specified in the process for the return thereof has been exceeded, the reason for the delay, or, if it was not executed, the reason why it was not executed and shall return the process with such endorsement to the Court.

 

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court may on its own motion and shall upon an application by the petitioner in the execution ap
plication examine the officer touching his alleged inability and may, if it thinks fit, summon and examine witnesses as to such inability and shall record that result. Such examination of the process server as well as of witnesses summoned under this,, rule shall be made after notice to the petitioner in execution application or his pleader.

 

(3) Where in the case of a decree for the payment of money the process in not executed owing to the decree having been satisfied, such officer shall also obtain an endorsement on the process to that effect signed by the decree-holder and attested by two respectable witnesses who can identify the decree-holder. On receipt of the process with an endorsement so signed and attested, the Court shall issue notice to the decree-holder to show cause, on a day to be fixed by the Court why such satisfaction should not be recorded as certified and if after service of such notice the decree-holder fails to show such cause the Court shall record the same accordingly. A record of satisfaction under the provisions of this sub-rule shall have the same effect as one made under the provisions of sub-rule (2) of rule 2 of this order.” (w.e.f. 30-3-1967)

 

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

 

Madras.-In Order XXI, in rule 25,-

 

(a) for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where in the case of a-decree for the payment of money the process is not executed owing to the decree having been satisfied, such officer shall also obtain an endorsement on the process to that effect signed by the decree-holder and attested by two respectable witnesses who can identify the decree-holder.”

 

(b) after sub-rule (2), insert the following sub-rule, namely:-

“(3) Where the endorsement of such officer is to the effect that he is unable to execute the process, the Court shall examine him or cause him to be examined by any other Court touching his alleged inability, and if it thinks fit, summon and examine witnesses as to such inability and shall record the result: ;

 

Provided that an examination of the officer entrusted with the execution of a process by the Nazir or [the Deputy Nazir] under the general or special orders of the Court shall be deemed to be sufficient compliance with the requirements of this clause.

 

Where the inability to execute the process is stated to be due to the satisfaction of the decree and such satisfaction has been endorsed on the process as mentioned in sub-rule (2) above, the Court shall issue notice to the decree-holder to show cause on a day to be fixed by the Court, why such satisfaction should not be recorded as certified, and, if, after service of such notice, the decree-holder fails to show cause why the satisfaction should not be recorded as certified, the Court shall record the same accordingly.

 

A record of satisfaction under the provisions of this sub-rule shall have the same effect as one under the provisions of Order XXI, rule 2, sub-rule (2).”

 

Stay of execution

 

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.

 

(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, 1[the Court shall require] such security from, or impose such conditions upon, the judgment-debtor as it thinks fit.

 

1. Subs, by Act No. 104 of 1976 for “the Court may require” (w.e.f. 1-2-1977).

 

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.

 

28. Order cf 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.

 

29. Stay of execution pending suit between decree-holder and judgment-debtor

 

Where a suit is pending in any Court against the holder of a decree of such Court 1[or of a decree which is being executed by such Court], on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided :

 

1[Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.]

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, in, rule 29,-

(a) after the words “the person against whom the decree was passed”, insert the words “or any person whose interest are affected by the decree, or by any order made in execution thereof”;

 

(b) omit the words “on such terms as to security or otherwise”;

 

(c) for the word “as” appearing before the words “it thinks fit”, substitute the word “if”;

 

(d) insert the following as proviso, namely:-

“Provided that in all cases where execution of the decree is stayed under this rule the Court shall require the person seeking such stay to furnish such security as it may deem fit.”

 

[Vide Notification No. 43/VIId-29, dated 1st June, 1957.]

 

Karnataka.-In Order XXI, in rule 29, for the words “on the part of the person against whom the decree was passed”, substitute the words “instituted by the person against whom the said decree was passed”, (w.e.f. 30-3-1967)

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

Mode of execution

 

30. Decree for payment of money

Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.

 

HIGH COURT AMENDMENT

 

Allahabad.-In Order XXI, -in rule 30, between the words “and sale” and “of his property”, insert the words
“or any other kind of transfer”, (w.e.f. 13-2-1960)

 

31. Decree for specific movable property

(1) 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 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) Where any attachment under sub-rule (1) has remained in force for 1[three months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of movable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

 

(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of 1[three months] from the date of attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, in rule 31, in sub-rules (2) and (3), for the words “six months” wherever they occur, substitue the words “three months or such extended time as the Court may for good cause direct”.

 

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926J

[Ed.-This amendment relates to sub-rules (2) and (3) prior to the amendments made by the Central Act 104 of 1976, sec. 72 (w.e,f. 1-2-1977).]

 

Andhra Pradesh.-Same as in Madras.

 

Bombay.-In Order XXI, in rule 31, in sub-rules (2) and (3), for the words “six months” wherever they occur, substitute the words “three months or such further time as the Court may, in any special case, for good cause shown, direct”.

 

[Ed.-This amendment relates to sub-rules (2) and (3) prior to the amendments made by the Centra! Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

 

Delhi.-Same as in Punjab.

 

Himachal Pradesh.-Same as in Punjab.

 

Karnataka.-In Order XXI, in rule 31, after sub-rule (3), insert the following sub-rule, namely:-

 

“(4) The Court may on application extend the period of three months mentioned in sub-rules (2) and (3) to such period not exceeding six months on the whole as it may think fit.” {w.e.f. 30-3-1967)

 

Kerala.-Same as in Madras.

 

Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madhya Pradesh.-Same as in Bombay, (w.e.f. 16-9-1960)

Madras,-In Order XXI, in rule 31, after sub-rule (3), insert the following sub-rule, namely:-

 

“(4) The Court may on application extend the period of three months mentioned in sub-rules (2) and (3)’ to such period not exceeding six months on the whole as it may think fit.”

 

[Vide GOM’s No. 2084-Home, dated 2nd September, 1936; HCP Dis No. 691, dated 13th October, 1936).]

 

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 31, after su
b-rule (3), insert the following sub-rule, namely:-

 

“(4) The Court may, for sufficient cause, extend the period of three months mentioned in sub-rules (2) and (3) to such period, not exceeding six months in the whole, as it may think fit.”

 

Punjab.-In Order XXI, in rule 31,-

 

(a) after sub-rule (2), insert the following proviso, namely:-

“Provided that the Court may, in any special case, according to the special circumstances thereof, extend the period beyond three months; but it shall in no case exceed six months in all.”

 

(b) in sub-rule (3), for the words “six months”, substitute the words “three months or such other period as may have been prescribed by the Court”.

 

[Ed.-This amendment relates to sub-rules (2) and (3) prior to the amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

 

1. Subs by Act No. 104 of 1976 for “six months” (w.e.f. 1-2-1977).

 

32. Decree for specific performance for restitution of conjugal rights, or for an injunction

 

(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.

 

(2) Where the party against whom a decree for specific performance or for an injunctions been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.

 

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for 1[six months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

 

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or here, at the end of 1[six months] from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

 

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

 

2[Explanation.-For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.]

 

Illustration

 

A, a person of little substance, effects a building which renders uninhabitable a family mansion belonging to B. A, in spite of his detention in prison and the
attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A’s property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution-proceedings.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, in rule 32, in sub-rule (3), at the end, after the words “on his application”, insert the words “and the Court may for good cause extend the time”.

 

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.] ,

 

Andhra Pradesh.-Same as in Madras.

 

Delhi.-Same as in Punjab.

 

Himachal Pradesh.-Same as in Punjab. [

 

Kerala.-Same as in Madras, (w.e.f. 9-6-1959) -:-“

 

Madhya Pradesh.-In Order XXI, in rule 32–

 

(a) in sub-rule (3), at the end, after the word “application”, insert the words “and the Court may also, for good cause shown, extend the time for the attachment remaining in force for a period not exceeding one year”, and

 

(b) in sub-rule (4), for the words “one year”, substitute the words, “three (now six) months or such further time as may have been fixed by the Court under sub-rule (3)”. (w.e.f. 16-9-1960)

 

[Ed.-This amendment relates to sub-rule (4) prior to its amendments by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

 

Madras.-In Order XXI, in rule 32-

(a) in sub-rule (3), at the end, after the word “application” insert the words “The Court may on application extend the period of three (now six) months mentioned herein to such period not exceeding one year on the whole as it may think fit.”

 

(b) in sub-rule (4), after the words “the date of the attachment”, insert the words “or of such extended period which the Court may order under sub-rule (3)”.

 

[Vide GOMs No. 2084-Home, dated 2nd September, 1936; HCP Dis No. 691, dated 13th October, 1936.]

 

Orissa.-Same as in Patna.

 

Patna.-In Order XXI, in rule 32, in sub-rule (3), for the words “for one year” substitute the words “for three (now six) months or for such further period, not exceeding one year in the whole, as may on sufficient cause shown, be fixed by the Court”.

 

[Ed.-This amendment relates to sub-rule (3) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

 

Punjab.-In Order XXI, in rule 32,-

 

(a) in sub-rule (3), insert the following proviso, namely:-

 

“Provided that the. Court may for sufficient reasons, on the application of the judgment-debtor, extend the period beyond three (now six) months; but it shall in no case exceed one year in all.”

 

(b) in sub-rule (4), for the words “one year” substitute “three (now six) months or such other period as may have been prescribed by the Court”.

 

[Ed.-This amendment relates to sub-rule (4) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).] ,-

 

1. Subs, by Act No. 104 of 1976 for “one year” (w.e.f. 1-2-1977).

 

2. Explanation inserted to sub-rule (5) by Act No. 22 of 2002
, section 14 (w.ef. 1-7-2002).

 

Previous | Next

 

Civil Procedure Code 1908

 

Indian Laws – Bare Acts

Leave a Comment

Your email address will not be published. Required fields are marked *