ORDER XXI(81-106) – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XXI (81-106). EXECUTION OF DECREES AND ORDERS

 

ORDER XXI. EXECUTION OF DECREES AND ORDERS

 

Payment under decree

 

81. Vesting order in case of other property.

In the case of any movable property not hereinbefore provided for, the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.

 

Sale of immovable property

 

82. What Courts may order sales.

Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.

 

HIGH COURT AMENDMENT

 

Kerala.-In Order XXI, in rule 82, for the words “of Small Causes”, substitute the words “exercising small cause jurisdiction”. (w.e.f. 9-6-1959).

 

83. Postponement of sale to enable judgment-debtor to raise amount of decree.

 

(1)Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may, on his application, postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.

 

(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 64, to make the proposed mortgage, lease or sale:

 

Provided that all moneys payable under such mortgage, lease or sale shall be paid, not to the judgment-debtor, but, save in so far as a decree-holder is entitled to set-off such money under the provisions of rule 72, into Court:

Provided also that not mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.

 

(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.

 

84. Deposit by purchaser and re-sale on default.

(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent, on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

 

(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72, the Court may dispense with the requirements of this rule.

 

HIGH COURT AMENDMENT

 

Allahabad.-In Order XXI, in rule 84, in sub-rule (2), at the end, insert the following words, namely:-

 

“The court shall not dispense with the requirements of this rule in a case in which there is an application for rateable distribution of assets.”

[Vide Notification No. 16699-H, dated 17th January, 1953.]

 

85. Time for payment in full of purchase-money.

The full amount of purchase-money pay
able shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property:

 

Provided, that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Bombay.-In Order XXI, in rule 85,-

 

(i) after the words “purchase-money payable”, insert the words “together with the amount required for general stamp paper for certificate under rule 94”.

 

(ii) for the proviso, substitute the following provisos and Explanation, namely:-

 

“Provided that, in Respect of the purchase money, the purchaser shall have the advantage of any set-joff to which he may be entitled under rule 72:

 

Provided further that, if as a result of some bona fide mistake or miscalculation the amount deposited fails short of the full amount of the purchase-money, the Court may in its discretion allow the shortfall to be made up after fifteen days of the sale, and if the full amount of the purchase-money is deposited within such time as the Court may allow, the Court may condone the delay, if it considers it just and proper to do so.

 

Explanation.-When an amount is tendered in Court on any day after 1 p.m. but not accepted by the Court and is paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made.” (w.e.f. 1-10-1983)

 

Gujarat.-In Order XXI, after rule 85, insert the following rule, namely:-

“85A. Set-off where execution has been transferred to Collector.-In cases where execution has been transferred to the Collector, for the purposes of rules 84 and 85, the purchaser shall be deemed to be entitled to a set-off under rule 72 if he produces a certificate to that effect from the Court executing the decree.” (w.e.f. 17-8-1961)

 

Kerala.-In Order XXI, in rule 85,- “

(i) after the words “purchase-money payable”, insert the words “together with the amount required for the general stamp paper for the certificate under rule 94”.

 

(ii) in the proviso, for the words “in calculating the amount to be so paid into Court”, substitute the words “in respect of the purchase-money”, (w.e.f. 1-1-1966)

 

Madhya Pradesh.-In Order XXI, in rule 85, insert the following Explanation, namely:-

 

“Explanation.-When an amount is tendered on any day after 1 p.m. but paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made.”

 

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

 

Madras.-In Order XXI, for rule 85, substitute the following rule, namely:-

 

“85. Time for payment in full of purchase-money and of stamp certificate of sale.-The full amount of purchase money payable and the general stamp for the certificate under rule 94 or the amount required for such stamp, shall be deposited into Court by the purchaser before the Court closes on the fifteenth day from the sale of the property:

 

Provided that in calculating the amount of purchase-money to be so deposited the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.”

 

[Vide P. Dis. No. 677, dated 25th November
, 1944.]

 

86. Procedure in default of payment

In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

 

87. Notification on re-sale

Every re-sale of immovable, property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Bombay.-In Order XXI, in rule 87, for the words “of the purchase-money”, substitute the words “of the amount mentioned in rule 85”.

 

[Vide Maharashtra Gazette, Ft. IV-C, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).

 

Kerala.-Same as in Madras.

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

 

Madras.-In Order XXI, in rule 87, for the words “payment of the purchase-money” substitute the words “the payment of the amounts mentioned in rule 85”.

 

[Vide GOMs No. 2922-Home, dated 28th October, 1936-HCP Dis No. 690 of 1936.]

 

88. Bid of co-sharer to have preference

Where the property sold is a share of undivided immovable property and two or more persons, or whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.

 

89. Application to set aside sale on deposit

(1) Where immovable property has been sold in execution of a degree, 1[any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person,] may apply to have the sale set aside on his deposition in Court,-

 

(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and

 

(b) for payment, to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

 

(2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not unless he withdraws his application, be entitled to make or prosecute an application under this rule.

 

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

 

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

 

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Bombay.-In Order XXI, in rule 89, in sub-rule (1), insert the following proviso, namely:- “Provided that if the full amount required to be deposited in Court under this rule is not deposited at the time of making the application through some bona fide mistake or miscalculation and the short-fall is made up within one week from the date of the discover
y of the mistake or calculation, the Court may condone the delay, if it considers it just and proper to do so.” (w.e.f. 1-11-1966)

 

Karnataka.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words “such proclamation of sale, have been received by the decree-holder”, substitute the words “that proclamation of sale, have been paid or deposited towards satisfaction of the decree”. (ii) insert the proviso as in Madras.

 

Kerala.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words “date of such proclamation”, substitute the words “date of the proclamation”;

 

(ii) insert the following provisos, namely:-

“Provided that, when several items of properties are sold separately, the sale of one or more of such items may be set aside on depositing in Court the amount of the purchase-money for the items the sale of which is sought to be set aside and a sum equal to five per cent, of that amount, and the balance, if any, of the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered still remains unrealised:

 

Provided further that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay.” (w.e.f. 9-6-1959)

 

Madras.-In Order XXI, in rule 89, in sub-rule (1),-

 

”(i) in clause (b) for the words “date of such proclamation”, substitute the words “date of that proclamation”,

 

(ii) insert the following proviso, namely:-

“Provided that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay”

 

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

 

1[90. Application to set aside sale on ground of irregularity or fraud

(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conduction it.

 

(2) No sale shall be set aside on the ground of irregularity or fraud in publishir or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

 

(3) No application to set aside a sale under this rule shall be entertained upon an ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

 

Explanation.-There mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.]

 

1. Subs, by Act No. 104 of 1976, sec. 72 for rule 90 (w.e.f. 1-2-1977).

 

91. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest.

 

The purchaser at any such sale in execution of decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

 

HIGH COURT AMENDMENT

 

Gujarat-In Order XXI, after rule 91, insert the following rule, namely:-

“91A. Deposits how to be made., where execution is transferred to Collector.-Where the execution of a decree has been transferred to the Collector and the sale has been conducted by the Collector or by an officer subordinate to the Collector, an application under rule 89, 90 or 91, and in the case of an application under rule 89, the deposit required by that rule if made to the Collector or the officer to whom the decree is referred for execution in accordance with any rule framed by the State Government under section 70 of the Code, shall be deemed to have been made to or in the Court within the meaning of rules 89, 90 and 91.” (w.e.f. 17-8-1961)

 

92. Sale when to become absolute or be set aside.

(1) When no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:

 

1[Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.]

 

(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within 2[sixty days] from the date of sale, 3[or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]:

 

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

 

4[Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.

 

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

 

5[(4) Where a third party challenges the judgment-debtor’s title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

 

(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court directs, be revived at the stage at which the sale was ordered.]

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, in rule 92, in sub-rule (1), after the words “the Court shall make”, insert the words “subject to the provisions of rule 58 (2)”.

 

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

Andhra Pradesh.-Same as in Madras. Bombay.-In Order XXI, in rule 92,-

(i) in sub-rule (1), insert the following proviso, namely:-

 

“Provided that before confirming the sale the Court shall satisfy itself that the amount paid under rule 85 for the purchase of general stamp paper for the certificate under rule 94 is sufficient for the purpose in accordance with the rate in force at the time of confirmation and may, notwithstanding anything contained in ru
le 86, give the purchaser such times as it thinks fit for making good any deficiency.” (w.e.f. 1-10-1983) (ii) in sub-rule (2), insert words as in Madras by only substituting the words “has become deficient” for the words “has been diminished”.

 

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

 

Kerala.-In Order XXI, in rule 92, in sub-rule (2),–

(i) for the words “thirty days”, substitute the words “sixty days”, (w.e.f. 9-2-1988)

 

[Ed.-This amendment relates to sub-rule (2) prior to its amendment made by the Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

 

(ii) after the words “from sale”, insert the words “and in case where the amount deposited has become deficient owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court”.

 

Madhya Pradesh.-In Order XXI, in rule 92, in sub-rule (1), after the words “the Court shall make”, insert the words “subject to the provisions of rule 58 (2)”.

 

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

Madras.-In Order XXI, in rule 92, in sub-rule (2), after the words “within thirty days from the date of sale” insert the following words:-

 

“and in case where the amount deposited has been diminished owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court.”

 

[Ed.-This amendment relates to sub-rule (2) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977} and Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

 

Patna.-Same as in Allahabad.

 

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

 

2. Substituted for ‘thirty days’ by Act No. 22 of 2002, section 14 (w.e.f. 1-7-2002).

 

3. Subs, by Act No. 104 of 1976, sec. 72 for “the Court shall make an order setting aside the sale” (w.e.f. 1-2-1977).

 

4. Inserted by Act No. 22 of 2002, section 14 (w.e.f. 1 -7-2002).

 

5 Ins by Act No. 104 of 1976, sec. 72 (w.e..f. 1-2-1977).

 

93. Return of purchase-money in certain cases.

Where a sale of immovable property is set aside under rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.

 

94. Certificate to purchaser.

Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale of is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI,-

(i) renumber rule 94 as sub-rule (1) thereof;

 

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

“(2) Where immovable property is transferred otherwise than by sale, a document of transfer shall be granted by the Court specifying the property, the name of the person to whom it is transferred and the terms on which the transfer is made. Such document shall bear the date the day on which the transfer was ordered.” (w.e.f. 13-2-1960)

 

Bombay.-In
Order XXI, in rule 94, between the words “sold” and “and”, insert a comma and the words “the amount of the purchase-money”, (w.e.f. 1-10-1983)

 

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

Orissa.-Same as in Patna.

 

Patna.-In Order XXI, for rule 94, substitute the following rule, namely:-

“94. Certificate to purchaser.-Where a sale of immovable property has become absolute the auction-purchaser shall file the sale certificate stamp within fifteen days from the date of confirmation of the sale, and the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be purchaser. Such certificate shall bear the date the day on which the sale becomes absolute. If the necessary stamp for sale certificate is not filed within the prescribed period the sale may, if the Court thinks fit, be set aside.”

 

95. Delivery of property in occupancy of judgment-debtor

Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order to delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

 

HIGH COURT AMENDMENT

 

Madras.-In Order XXI,-

(i) renumber rule 95 as sub-rule (1) thereof;

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

 

“(2) Where delivery of possession of a house is to be given and it is found to be locked’ orders of Court shall be taken for breaking open the lock and for delivery of possession of the same to the purchaser.

 

If it is found at the time of delivery, that there are movables, in the house to which the purchaser has no claim and the judgment-debtor is absent or, if present, does not immediately remove the same, the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value in the presence of respectable persons on the spot, have the same attested by them and leave the movables in the custody of the purchaser after taking a bond from him for keeping the articles in custody pending orders of Court for disposal of the same.

 

The officer shall then make a report to the Court and forward therewith the attested inventory taken by him.

 

The Court shall thereupon issue a notice to the judgment-debtor requiring him to take delivery of the said movables within thirty days from the date of the notice, and in default will be sold in public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance, if any, will be refunded to the judgment-debtor:

 

Provided that, if movable articles referred to above are perishable, the officer shall sell them in public auction immediately and bring the proceeds into Court. The notice to the judgment-debtor shall in such case call upon him to receive the amount from Court within three months.” (w.e.f. 17-8-1966)

 

96. Delivery of property in occupancy of tenant

Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application
of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.

 

HIGH COURT AMENDMENT

 

Allahabad.-In Order XXI, after rule 96, insert the following rule namely:-

“96A. (1) The Court executing a decree may of its own motion or on application and on such terms as may appear to it just and reasonable in the circumstances of the case as are acceptable to the transferee, order that any property of the judgment-debtor attached by it, be transferred otherwise by sale in favour of the decree-holder or any other person not a party to the decree, for the purpose of satisfying the decree or portion thereof.

 

(2) The provisions of rules 64 to 103 of this order shall apply mutatis mutandis to a transfer other than sale made under this rule except that the Court may in its discretion dispense with the necessity of such transfer being made after issuing a proclamation or of the transfer being conducted by an officer of the Court by public auction or after issuing a proclamation.” (w.e.f. 13-2-1960)

 

Resistance to delivery of possession to decree- holder or purchaser

 

97. Resistance or obstruction to possession of immovable property.

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

 

1[(2) Where ?ny application is made under sub-rule (1), the Court shall proceed to adjudicate upon ihe application in accordance with the provisions herein con-tained.]

 

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

 

1[98. Orders after adjudication.

 

(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-

 

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

 

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

 

HIGH COURT AMENDMENT

 

Bombay.-In Order XXI, in-rule 98, for sub-rule (2), substitute the following sub-rule, namely:-

 

“(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor on by some other person at his instigation or on his behalf, or by any transferee where
such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the Civil prison for a term which may extend to thirty days. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly to severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise at if it were a decree.” [Vide Maharashtra Government Gazette, Pt. IV, ka, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).]

 

1. Subs,. by Act No. 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977).

 

1[99. Dispossession by decree-holder or purchaser

 

(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sol in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

 

(2) Where any such application is made, the Court shall proceed to adjudical upon the application in accordance with the provisions herein contained.]

 

1. Subs. by Act 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977)

 

100. Order to be passed upon application complaining of dispossession

Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,-

 

(a) make an order allowing the application and directing that the applicant be pi into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

 

HIGH COURT AMENDMENT

 

Bombay.-In Order XXI, in rule 100, insert the following proviso, namely:-

“Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above.” (w.e.f. 1-10-1983)

 

101. Questions to be determined

All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

 

HIGH COURT AMENDMENT

 

Bombay.-In Order XXI, in rule 101, insert the following proviso, namely:-

“Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to “Which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be
transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court.” (w.e.f. 1-10-1983)

 

102. Rules not applicable to transferee pendent life

Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

 

Explanation-In this rule, “transfer” includes a transfer by operation of law.

 

HIGH COURT AMENDMENT

 

Bombay.-In Order XXI, omit rule 102.

 

103. Orders to be treated as decrees

Where any application has been adjudicated upon under rule 98 or rule 100 the other made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]

 

1[104. Order under rule 101 or rule 103 to be subject to the result or pending suit

 

Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.

 

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

 

1[105. Hearing of application

 

(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

 

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

 

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex pane and pass such order as it thinks fit.

 

Explanation.-An application referred to in sub-rule (1) includes a claim or objection made under rule 58.]

 

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

 

1[106. Setting aside order passed ex parte, etc.

 

(1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed exparte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

 

(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.

 

(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex pane order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.]

 

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

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, after rule 106, insert the following rules, namely:-

“106A. When the certificate prescribed by section 41 is received by the Court which sent the decree for execution, it shall cause the necessary details as to the result of execution to be entered in its register of civil suits before the papers are transmitted to the record room.

 

106B. Every attachment of movable property under rule 43, of the Negotiable Instruments under rule 51 and of immovable property under rule 54, shall be made through a Civil Court Amin, or bailiff, unless special reasons render it necessary that any other agency should be employed; in which case those reasons shall be stated in the handwriting of the presiding Judge himself in the order for attachment.

 

106C. When the property which it is sought to bring to sale is immovable property within the definition of the same contained in law for the time being in force relating to the registration of documents, the decree-holder shall file with his application for an order for sale a certificate from the Sub-Registrar within whose sub-district such property is situated, showing that the Sub-Registrar has searched his books Nos. I and II and their indices for twelve years preceding the mortgage or attachment as the case may be and stating the encumbrances, if any, which he has found on the property.

 

107. When an application is made for the sale of land or of any interest in land, the Court shall, before ordering sale thereof, call upon the parties to state whether such land is or is not ancestral land within the Notification No. 1887/1-238-10, dated 7th October, 1911, of Local Government, and shall fix a date for determining the said question.

 

On the day so fixed, or on any date to which the enquiry may have been adjourned, the Court may take such evidence, by affidavit or otherwise, as it may deem necessary, and may also call for a report from the Collector of the district as to whether such land or any portion thereof is ancestral land.

After considering the evidence and the report, if any, the Court shall determine whether such land, or any, and what part of it, is ancestral land.

 

The result of the enquiry shall be noted in an order made for the purpose by the presiding Judge in his own handwriting.

 

108. When the property which it is sought to bring to sale is revenue-paying or revenue-free land or any interest in such land, and the decree is not sent to the Collector for execution under section 68, the Court, before ordering sale, shall also call upon the Collector in whose district such property is situate to report whether the property is subject to any (and, if so, to what) outstanding claims on the part of Government.

 

109. The certificate of the Sub-Registrar and the report of the Collector shall be open to the inspection of the parties of their pleaders, free of charge, between the time of the receipt by the Court and the declaration of the result of the enquiry. No fees are payable in respect of the report by Collector.

 

110. The result of the enquiry under rule 66 shall be noted in an order made for the purpose by the presiding Judge in his own handwriting. The Court may, in its discretion, adjourn the enquiry, provided that the reasons for the adjournment are stated in writing, and that no more adjournments are made than are necessary for the purposes of the enquiry.

 

111. If after proclamation of the intended sale has been made any matter is brought to the notice ef the Court which it considers material for purchasers to know, the Court shall cause the same to be notified to intending purchasers when the property is put up
for sale.

 

112. The costs of the proceedings under rules 66,106 and 108 shall be paid in the first instance by the decree-holder; but they shall be charged as part of the costs of the execution, unless the Court, for reasons to be specified in writing, shall consider that they shall either wholly or in part be omitted therefrom.

 

113. Whenever any Civil Court has sold, in execution of a decree or other order, any house or other building situated within the limits of a military cantonment or station, it shall, as soon as the sale has been confirmed, forward to the commanding officer of such cantonment or station for his information and for record in the Brigade or other proper office, a written notice that such sale has taken place; and such notice shall contain full particulars of the property sold and the name and address of the purchaser.

 

114. Whenever guns or other arms in respect of which licences have to be taken by purchasers under the Arms Act, 1959 are sold by public auction in execution of decree by order of a Civil Court, the Court directing the State shall give due notice to the Magistrate of the district of the names and addresses of the purchasers, and of the time and place of the intended delivery to the purchasers of such arms, so that proper steps may be taken by the police to enforce the requirements of the Arms Act.

 

115. When an application is made for the attachment of live-stock or other movable property, the decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for fifteen days. If within three clear days before the expiry of any such period of fifteen days the amount of such costs for such further period as the Court may direct be not paid into Court, the Court, on receiving a report thereof from the proper officer, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

 

116. Live-stock which has been attached in execution of a decree shall ordinarily be left at the place where the attachment is made either in custody of the judgment-debtor on his furnishing security, or in that of some land-holder or other respectable person willing to undertake the responsibility of its custody and to produce it when required by the Court.

 

117. If the custody of live-stock cannot be provided for in the manner described in the last preceding rule, the animals attached shall be removed to the nearest pound established under the Cattle Trespass Act, 1871 (1 of 1871), and committed to the custody of the pound-keeper, who shall enter in a register-

 

(a) the number and description of the animals;

 

(b) the day and hour on and at which they were committed to his custody;

 

(c) the name of the attaching officer or his subordinate by whom they were committed to his custody; and shall give such attaching officer or subordinate a copy of the entry.

 

118. For every animal committed to the custody of the pound-keeper as aforesaid, a charge shall be levied as rent for the use of the pound for each fifteen or part of fifteen days during which such custody continues; according to the scale prescribed under section 12 of Act No. I of 1871.

 

And the sums so levied shall be credited to the Municipal Board or the Zilla Parishad or the Notified Area, as the case may be, under whose jurisdiction the pound is.

 

119. The pound-keeper shall take charge of, feed and water, animals attached and committed as aforesaid until they are withdrawn from his custody as hereinafter provided a,nd he shall be entitled to be paid for their maintenance at such rates as may be, from time to time, prescribed under proper a
uthority. Such rates shall, for animals specified in the section mentioned in the last preceding rule, not exceed the rates for the time being fixed under section 5 of the same Act. In any case, for special reasons to be recorded in writing, the Court may require payment to be made for maintenance at higher rates than those prescribed.

 

120. The charges herein authorized for the maintenance of live-stock shall be paid to the pound-keeper by the attaching officer for the first fifteen days at the time the animals are committed to his custody, and thereafter for such further period as the Court may direct, at the commencement of such period. Payments for such maintenance so made in excess of the sum due for the number of days during which the animals may be in the custody of he pound-keeper shall be refunded by him to the attaching of officer.

 

121. Animals attached and committed as aforesaid shall not be released from custody by the pound-keeper except on the written order of the Court, or of the attaching officer, or of the officer appointed to conduct the sale; the person receiving the animals, on their being so released, shall sign a receipt for them in the register mentioned in rule 117.

 

122. For the safe custody of movable property other than live-stock while under attachment, the attaching officer shall, subject to approval by the Court, make such arrangements as may be most convenient and economical.

 

123. With the permission of the Court the attaching officer may place one or more person in special charge of such property.

 

124. The fee for the services of each such person shall be payable in the manner prescribed in rule 115. It shall not be less than twenty-five naya paise, and shall ordinarily not be more than thirty-seven naya paise per diem. The Court may, at its discretion, allow a higher fee; but if it does so, it shall state in writing its reasons for allowing an exceptional rate.

 

125. When the services of such person are no longer required the attaching officer shall give him a certificate on a counterfoil form of the number of days he has served and of the amount due to him; and on the presentation of such certificate to the Court which ordered the attachment, the amount shall be paid to him in the presence of the Presiding Judge:

 

Provided that, where the amount does not exceed Rs. 5, it may be paid to the Sahna by money order on requisition by the Amin, and the presentation of the certificate may be dispensed with.

 

126. When in consequence of an order of attachment being withdrawn or for some other reason, the person has not been employed or has remained in charge of the property for a shorter time than that for which payment has been made in respect of his services, the fee paid shall be refunded in whole or in part, as the case may be.

 

127. Fees paid into Court under the foregoing rules shall be entered in the Register of Petty Receipts and Repayments.

 

128. When any sum levied under rule 118 is remitted as the Treasury, it shall be accompanied by an order in triplicate (in the form given as Form No. 9 of the Municipal Account Code), of which one part will be forwarded by the Treasury Officials to the Zilla Parishad or Municipal Board, as the case may be. A note’that the same has been paid into the Treasury as rent for the use of the pound, will be recorded on the extract from the pass book.

 

129. The cost of preparing attached property for sale, or of conveying it to the place where it is to be k^pt or sold, shall be payable by the decree-holder to the attaching officer. In the event of the decree-holder failing to provide the necessary funds, the attaching officer shall report his default to the Court, and the Court may thereu
pon issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

 

130. Nothing in these rules shall be deemed to prevent the Court from issuing and serving on the judgment-debtor simultaneously the notice required by Order XXI, rules 22, 66 and 107.

 

131. The Court may, in the case of any debt due to the judgment-debtor (other than a debt secured by a mortgage or a charge or a negotiable instrument, or a debt recoverable only in a Revenue Court), or any movable property not in the possession of the judgment-debtor, which has been attached under rule 46 of this Order issue a notice to any person (hereinafter called the garnishee) liable to pay such debt or to deliver or account for such movable property, calling upon him to appear before the Court and show cause why he should not pay or deliver into Court the debt due from or the property deliverable by him to such judgment-debtor, or so much thereof as may be sufficient to satisfy the decree and the cost of execution. (As amended on 29-3-1949).

 

132. If the garnishee does not forthwith or within such time as the Court may allow, pay or deliver into Court the amount due from or the property deliverable by him to the judgment-debtor, or so much as may be sufficient to satisfy the decree and the cost of execution, and does not dispute his liability to pay such debt or deliver such movable property, of if he does not appear in answer to the notice then the Court may order the garnishee to comply with the terms of such notice and on such order execution may issue as though such order were a decree against him.

 

133. If the garnishee disputes Ms liability the Court, instead of making such order, may order that any issue of question necessary for determining his liability be tried as though if were an issue in a suit; and upon the determination of such issue shall pass such order as shall be just. (As amended on 29-3-1949).

 

134. Whenever in any proceedings under these rules it is alleged, or appears to the Court to be probable that the debt or property attached belongs to some third person, or that any third person has a Hen or charge upon, or an interest in it, the Court may order such third person to appear and state the nature of his claim, if any, upon such debt or property and prove the same, if necessary. (As amended on 29-3-1949).

 

135. After hearing such third person, and any other person who may subsequently be ordered to appear, or in the use of such third or other person not appearing when ordered, the Court may pass such order as is hereinbefore provided or make such other order as it shall think fit, upon such terms in all cases with respect to the lien, charge or interest, if any, of such third or other person as to such Court shall seem just and reasonable.

 

136. Payment or delivery made by the garnishee whether in execution of an order under these rules or otherwise shall be a valid discharge to him as against the judgment-debtor or any other person ordered to appear as aforesaid, for the amount paid, delivered or realised although such order of the judgment may be set aside or reversed.

 

137. Debts owing from a firm carrying on business within the jurisdiction of the Court may be attached under these rules, although one or more members of such firm may be resident out of the jurisdiction: * Provided that any person having the control or management of the partnership.*? business or any member of the firm within the jurisdiction is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.

 

138. The costs of any application under these rules and of the proceedings arising therefrom or incidental thereto, or any order made thereon, shall be
in the discretion of the Court.

 

139. (1) Where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

 

(2) Orders not covered by clause (1) shall be appealable as orders made in execution.

 

Illustration.-An application for a garnishee order is dismissed either on the ground that the debt is secured by a charge or that there is no prima facie evidence of debt due. This order is appealable as an order in execution. 140. All the rules in this Court relating to service upon either plaintiffs or defendants at the address filed or subsequently altered under Order VII or Order VIII shall apply to all proceedings taken under Order XXI or section 47.

 

The following form shall be used under the provisions of rule 131 of Order XXI: Suit No…………………………of……..

………………………………………………………………………………………….Plaintiff,

Versus

……………………………………………………………………………….. ..Defendant

 

Whereas it is alleged that a debt of Rs………………. is due from you to the judgment-debtor.

 

Or that you are liable to deliver to the above named judgment-debtor the property set forth in the Schedule hereto attached; Take notice that you are hereby required on or before the…………….day of…..19…./20….. to pay into this Court the said sum of Rs……………or………… to deliver account to the Amin of this Court for the moveable property detailed in the attached schedule or otherwise to appear in person or by advocate, vakil or authorised agent in this Court at 10.30 in the forenoon of the day aforesaid and show cause to the contrary in default whereon an order for the payment of the said sum, or for the delivery of the said property may be passed against you. Dated this…………day of………. of……l9…….:../20……….

Munsiff/Sub-Judge……………

at…………………”

 

Andhra Pradesh.-In Order XXI, insert rule 106 which is same as in Madras with the addition of the following words at the end:-

 

“For this purpose, the Court may make an order including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.”

 

[Vide Notification No. P Dis 229/56, dated 2nd April, 1959].

 

Madras.-In Order XXI, after rule 105, insert the following rule, namely:-

“106. Where and in so far as a decree or order is varied or reversed and the case does not fall within the scope of section 47 or section 144, the Court of first instance shall, on the application of any party affected by the decree or order, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order on such part thereof as has been varied or reversed.” (w.e.f. 19-5-1954)

 

[Ed.-This amendment relates to rule 106 prior to its amendment made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

 

Calcutta.-After Order XXI, insert the following Order, namely:-

“ORDER XXIA”

 

1. Every person applying to a Civil Court to attach movable property shall, in addition to the process-fee, deposit such reasonable sum as the Court may direct if it thinks necessary, for the cost of its removal to th
e Court-house, for its custody, and, if such property is live-stock, for its maintenance according to the rates prescribed in rule 2 of this Order. If the deposit when ordered, be not made, the attachment shall not issue. The Court may, from time to time, order the deposit of such further fees as may be necessary. In default of due payment the property shall be released from attachment.

 

[See Rule 150, Civil Rules and Orders, (1959) Calcutta and Order XXIA, rule 16.]

 

2. The following daily rates shall be chargeable for the custody and maintenance of live-stock under attachment:-

 

Goat and pig Annas 2 to annas 4.
Sheep Annas 2 to annas 3.
Cow and bullock Annas 6 to annas 10.
Calf Annas 3 to annas 6.
Buffalo Annas 8 to annas 12.
Horse Annas 8 to annas 12.
Ass Annas 3 to annas 5.
Poultry Annas 2 to annas 3 pies 6.

 

Explanation.-Although the rates indicated above are regarded as reasonable, the Courts shall consider individual circumstances and the local conditions and permit deposit at reduced rates where the actual expenses are likely to fall short of the minima or maxima. If any specimen of special value in any of the above classes is seized a special rate may be fixed by the Court. If any animal not specified is attached, the Court may fix the cost as a special case.

 

3. When the property attached consists of agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to rule 43, Order XXI, he may, unless the Court has otherwise directed, leave it in the village or place where it has been attached-

 

1[(a) in the charge of the decree-holder or his agent, or of the judgment-debtor, or of some other person, provided that the decree-holder or his agent or the judgment-debtor or other person, enters into bond in Form No. ISA of

 

Appendix E to this Schedule, with one or more sureties, to produce the attached property when called for and to be liable for any loss which the owner of the property attached may suffer due to wilful negligence of the bounden, or]

 

(b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided and the remuneration of the officer for a period of fifteen days paid in advance.

 

1. Rule 3(a) subs, by Notification No. 4440-G, dated 29th May, 1941.

 

4. If attached property (other than live-stock) is not sold, under the proviso to rule 43, Order 21, or retained in the village or place where it is attached, it shall be brought to the Court-house at the decree-holder’s expense and delivered to the proper officer of the Court. In the event of the decree-holder failing to make his own arrangement for the removal of the property with safety, or paying the cost thereof in advance to the attaching officer, then, unless such payment has previously been made into Court, the attachment shall at once be deemed to be withdrawn and the property shall be made over to the person in whose possession it was before attachment.

 

5. When live-stock is attached it shall not, without the special order of the Court, be brought to the Court or its compound or vicinity, but shall be left at the village or place where it was attached in the manner and on the conditions set forth in rule 3 of this Order:

 

Provided that live-stock shall not be left in the charge of any
person under clause (a) of the said rule unless he enters into a bond for the proper care and maintenance thereof as well as for its production when called for and that it shall not be left in charge of an officer of the Court under clause {b) of the said rule unless in addition to the requirements of the said clause provision be made for its care and maintenance.

 

6. When for any reason the attaching officer shall find it impossible to obtain compliance with the requirements of the preceding rule so as to entitle him to leave the attached live-stock in the village or place where it was attached and no order has been made by the Court for its removal to the Court, the attaching office shall not proceed with the attachment and no attachment shall be deemed to have been effected.

 

7. Whenever it shall appear to the Court that live-stock under attachment are not being properly tended or maintained the Court shall make such orders as are necessary for their care and maintenance and may if necessary direct the attachment to cease, and the leave-stock to be returned to the person in whose possession they were when attached. The Court may order the decree-holder to pay any expenses so incurred in providing for the care and maintenance of the live-stock, and may direct that any sum so paid be refunded to the decree-holder by any their party to the proceedings.

 

8. If under a special order of the Court live-stock is to be conveyed to the Court, the decree-holder shall make his own arrangement for such removal, and if he fails to do so the attachment shall be withdrawn and the property made over to the person in whose possession it was before attachment.

 

9. Nothing in these rules shall prevent the judgment-debtor or any person claiming to be interested in attached live-stock from making such arrangements for feeding, watering, and tending the same as may not be inconsistent with its safe custody, or contrary to an order of the Court.

 

10. The Court may direct that any sums which have been legitimately expended by the attaching officer or are payable to him, if not duly deposited or paid, be recovered from the sale-proceeds of the attached property, if sold, or be paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachment from any party to the proceedings.

 

11. In the event of custodian of attached property failing, after due notice, to produce such property at the place named to the officer deputed for the purpose, or to restore it to its owner if so ordered or failing in the case of live-stock to maintain and take proper care thereof, he shall be liable to be proceeded against for the enforcement of his bond in the execution proceedings.

 

12. When property other than live-stock is brought to the Court, it shall immediately be made over to the Nazir, who shall keep it on his sole responsibility in such place as may be approved by the Court. If the property cannot from its nature or bulk be conveniently stored, or kept on the Court premises or in the personal custody of the Nazir, he may, subject to the approval of the Court, make such arrangements for its safe custody under his own supervision as may be most convenient and economical. If any premises are to be hired and persons are to be engaged for watching the property, the Court shall fix the charges for the premises and the remuneration to be allowed to the persons (not being officers of the Court) in whose custody the property is kept. All such costs shall be paid into Court by the decree-holder in advance for such period as (he Court may from time to time direct.

 

13. When attached live-stock is brought to Court under special order as aforesaid it shall be immediately made
over to the Nazir, who shall be responsible for its due preservation and safe custody until he delivers it up under the orders of the Court.

 

14. If there be a pound maintained by Government or local authority in or near the place where the Court is held, the Nazir shall, subject to the approval of the Court, be at liberty to place in it such live-stock as can be properly kept there, in which case the pound-keeper will be responsible for the property to the Nazir and shall receive from the Nazir the same rates for accommodation and maintenance thereof as are paid in respect of impounded cattle of the same description.

 

15. If there be no pound available, or, if in the opinion of the Court, it be inconvenient to lodge the attached live-stock in the pound, the Nazir may keep them in his own premises, or he may entrust them to any person selected by himself and approved by the Court.

 

16. All costs for the keeping and maintenance of the live-stock shall be paid into Court by the decree-holder in advance for not less than fifteen days at a time as often as the Court may from time to time direct. In the event of failure to pay the costs within the time fixed by the Court, the attachment shall be withdrawn and the live-stock shall be at the disposal of the person in whose possession it was at the time of attachment.

 

17. So much of any sum deposited or paid into Court under these rules as may not be expended shall be refunded to the depositor.”

[Vide Notification No. 25585-G, dated 3rd November, 1933.]

 

Gauhati.-Same as in Calcutta.

 

 

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