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Modes of Execution

The document discusses different modes of executing court decrees under the Code of Civil Procedure (CPC) including: 1) Delivery of property such as movable or immovable goods to the party awarded in the decree. 2) Attachment and sale of a judgment debtor's property, such as land, buildings, money, etc. to pay off debts. 3) Arrest and detention of the judgment debtor in a civil prison, if they fail to pay debts owed, subject to certain conditions. 4) Appointment of a receiver to manage a judgment debtor's property for the benefit of both parties.

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9K views

Modes of Execution

The document discusses different modes of executing court decrees under the Code of Civil Procedure (CPC) including: 1) Delivery of property such as movable or immovable goods to the party awarded in the decree. 2) Attachment and sale of a judgment debtor's property, such as land, buildings, money, etc. to pay off debts. 3) Arrest and detention of the judgment debtor in a civil prison, if they fail to pay debts owed, subject to certain conditions. 4) Appointment of a receiver to manage a judgment debtor's property for the benefit of both parties.

Uploaded by

Slim Shady
Copyright
© © All Rights Reserved
Available Formats
Download as PDF, TXT or read online on Scribd
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Modes of Execution

Process of execution of decree or order of civil courts commences by filing petition for execution.
Provisions of Section 36-74 and Order 21 of CPC in itself dealing with different facets of execution.

When a decree comes up for execution, a natural question arises as to how court will proceed to execute
the decree.

It largely depends upon the nature of the decree


For example if the decree is for recovery of money the court will adopt different position from
than in case of decree of partition

Section 51 provides basic powers of court to enforce execution.It has a very wide scope and gives
option to decree holder of enforcing a decree by several modes available under the Code

Delivery of property
(1) Movable property(section 51(a), Rule 31)

Section 51(a) provides that a decree can be executed by delivery of any property specifically decreed.
Order 21 Rule 31 provides that

Where the decree is for any specific movable, or for any share in a specific movable, it may be
executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the
party to whom it has been adjudged, or to such person as he appoints to receive the delivery on his
behalf, or by the detention in the civil prison of the judgment debtor, or by the attachment of his
property or by both.

(2) Immovable property Rule 35-36

Rule 35

Similarly Order 21 rule 35 CPC provides that

where a decree is for the delivery of any immovable property possession thereof shall be delivered
to the party to whom it has been adjudged
or to such person as he may appoint to receive delivery on his behalf
and if necessary by removing any person bound by the decree who refuses to vacate the property.

Rule 36

Order 21 rule 36 says that

where the decree is for immovable property in the occupancy of the tenant or other person entitled
to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order
delivery to be made by affixing a copy of warrant in some conspicuous place on the property, and
proclaiming to the occupant by beat of drum or other customary mode, at some convenient place,
the substance of the decree in regard to the property.

Case law

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

“ Formal or symbolic possession is delivered by fixing a copy of the warrant in some


conpicuous place of the property and proclaiming by the beat of drum or other customary
mode at some convenient place the substance of the decree.

If the immovable property is under the possession of the judgment debtor, the actual
possession must be transferred to the decree holder.

Where it is in the possession of a tenanat or other person entitled to occupy the same, only
symbolic possession can be delivered and that has to be done under rule 36.
”
The rule does not free access to the officers of the court and have to give reasonable warning and facility
to a pardanashin lady to withdraw (B. Gangadhar v B.G.Rajalingam 1995 5SCC 238)

(3) Attachment and sale of property 51(b)

1. Clause (b) of section 51 says that court may enforce the execution of any property by
attachment and sale
or by sale w/o attachment
2. The power is subject to conditions and limitations as may be prescribed by rules
3. Section 60 provides the list of property not liable to be attached

Properties liable to be attached u/s 60(not exhaustive)


land
houses/other buildings
goods
money
bank notes
cheque/bills of exchange
promissory notes.

(4) Arrest and detention (section 51(c))

One of the modes of executing a decree is arrest and detention in a civil prison of the judgment
debtor
It is upto the decree holder to decide which mode of execution he will choose and whether if he
prays for arrest and detention of the judgment debtor.
However, court in the absence of special circumstances cannot compel the decree-holder not to
insist upon mode of execution.
But Clause(c) is subject to the proviso
Proviso lays down that where the decree is for payment of money, execution by detention
should not be ordered unless, the judgment debtor has been given opportunity to show cause
that why he should not be detained and court should be satisfied of reasons that Judgment
debtor with the object of obstructing or delaying the execution of the decree is likely to
abscond or leave the local limits of the jurisdiction of the court
has after the institution of the suit and passing of decree, dishonestly transferred,
concealed or removed any part of property or
committed any act under bad faith in relation to his property
judgment debtor since the date of decree has neglected or refused to pay the amount
or substantial part given in decree
the decree is for sum when judgment debtor was bound in fiduciary capacity.
The provisions are mandatory and must be strictly complied with.
They are not punitive in character, however their purpose is twofold-
It enables decree holder to realize fruits of the decree passed in favour
It protects the judgment debtor who is not in a position to pay the dues for reasons beyond
his control.
Therefore mere failure to pay amount does not justify arrest

(5)Appointment of the receiver (section 51(d))

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

Powers of executing court


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

Duties of executing court


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

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