Limitation of several applications during execution.

(Compiled by: A. HAZARATH RAO, District Judge (Retd) | from www.mja.gov.in)

Limitation of several applications during execution.

(Compiled by: A. HAZARATH RAO, District Judge (Retd) | from www.mja.gov.in)

Execution is the most important aspect of civil justice. Success or failure of system of civil justice depends on success in executing decrees of civil courts.The Supreme Court in regard to execution and realization of a decree observed that the litigants’ woes start with the commencement of execution to realize fruits of decree. The effort required to obtain a decree is much less than the effort required to realize a decree because execution proceedings are more weighed in favor of a judgment debtor than in favor of a Decree Holder.

(2) Order 21 of civil procedure Code exclusively deals with execution and is a self contained code.

The principles governing execution of decree and orders are dealt with sections 36 to 75, 144, 146 148 and order XXI of Civil Procedure Code besides rules 205 to 285 of civil rules of practice (Chapter XVI) and articles125 to 129 , 134 to 137 of the Limitation Act.

(3) Generally a decree can be executed in the court which passed the decree.

Section 37 of CPC also includes a court to whose jurisdiction decree was subsequently transferred. A decree can be executed by a court to which a decree was transmitted under section 39 of CPC. As for as decrees obtained in small cause suits are concerned a court having combined jurisdiction of original and small cause jurisdiction is treated as two separate courts for purposes of execution. In Mohan Lalv/sBenoyKishan (AIR 1953 SC 65) the Supreme Court held that the date of order in the original court is the date when the transferee court gets jurisdiction.

(4) Small cause court decrees can directly be executed against movable property only.

Small cause court decree has to be transferred to a court exercising original jurisdiction court though it may be the same court. Till such transfer is made execution proceedings cannot be initiated against the immovable property in case of small cause decree.

(5) Any sole decree holder and all the joint decree holders together can initiate execution proceedings.

In case of joint decree holders one or more of them can also file execution petition with the permission of the court and the court is to make such orders as are required to protect the interests other decree holders who has not joined in executing the decree. Others who can execute a decree are the persons to whom a decree was transferred by agreement or operation of law like legal representatives. When there is a transfer of a decree either by operation of law or by mutual private arrangement such decree can be executed by transferee after permission is granted under order 21 rule 16 of CPC. There need not be a separate application for permission. A transferee decree holder can straight away file an execution petition seeking permission to execute the decree after recognizing the transfer. Under such circumstances notice has to go not only to the transferor decree holder but also to all the judgment debtors. After hearing and disposing off the objections, if any, and after recognizing the transfer only, further steps can be ordered.

(6) Order 22 of CPC is not applicable to execution proceedings.

The relevant provisions are sections 50, 52 and 146 of CPC. Straight away execution petition can be filed either by the legal representatives of a deceased decree holder or against the legal representatives of the deceased judgment debtor. The only condition imposed is that when a decree is sought to be executed against a legal representative notice under rule 22 of order 21 is compulsory. Apart from that notice under section 50 CPC is issued generally. Only after serving notice on the legal representatives of judgment debtor and after hearing and disposing of objections, if any, further steps can be ordered.

(7) Different types of decreesand their modes of execution:

a) Money decrees:

i) By arrest and detention in civil prison (sections 51, 55 to 69, 135,135 (A), order 21 rules 37 to 40 of CPC and rule 241 of CRP. ii) By attachment and sale of movable properties.(order 21 rule 43) iii) By attachment and sale of standing crop and agricultural produce (order 21 rules 44& 45)

iv) By attachment of salary of government servant (order 21 rule 48) v) By attachment of salary of private employees (order 21 rule 48A) vi) By attachment and sale of immovable property (order 21 rules 54 to 69)

vii) By attachment of a decree obtained by the judgment debtor in another case (order 21 rule 53)

viii) By attachment of a negotiable instrument (order 21 rule 51) ix) By attachment of debt, share or other movable property not in the possession of judgment debtor (order 21 rule 46-otherwise known as garnishee proceedings).

x) By attachment of debtor’s share in a partnership firm (order 21 rules 49 & 50)

b) Decree for specific movable property : order 21 rule 31

c) Decree for specific immovable property: order 21 rules 35 & 36 d) Decree passed against a firm : order 21 rule 50. A decree also can be executed against partners of firm whose names were not mentioned in the plaint in their individual capacity only after obtaining leave of the decretal court as provided in order 21 rule 50 (2) of CPC.

e) Decree for specific performance by execution of a document or a negotiable instrument:order 21 rules 32 & 34. In execution of a decree for specific performance by executing a document, the decree holder has to deposit the amount as per terms of the decree, draft of the document to be executed by the judgment debtor and also the amount required for the general stamps.

f) Decree for unascertained amount: order 21 rule 42. It provides for attachment in cases where future rent, mesne profits or damages for use and occupation or such recurring amounts which have to be ascertained as per the preliminary decree to prevent the judgment debtor from alienating his properties before final ascertainment and passing of a preliminary decree. g) Decree for restitution of conjugal rights:order 21 rule 33

h) Execution of cross decrees: order 21rule 18. In such a case a person holding a decree for higher amount can execute decree after giving credit to the amount payable to the judgment debtor in the other decree and proceed against him for the remaining amount.

(8) In case of money decree legal representatives of deceased decree holder have to produce a succession certificate.

The only exception is that if it is proved to be a joint Hindu family decree. No succession certificate is necessary in mortgage claims and charge claims.

(9) General principle that executing court cannot go behind a decree has certain exceptions.

When objection is regarding nullity of the decree itself that objection has to be gone into and considered by the executing court.ChitturiSubbannav/skudapaSubbanna& others(AIR 1962 AP 500). Secondly when there is a conflict between the decree and judgment the executing court can look into judgment in order to ascertain the correct direction given by the court because judgment prevails over decree as held in G. Ramaiahv/s Y. Bayyanna (1974 (2) Andhra weekly reporter 14 (Short notes).

(10) There are two types of decrees that cannot be executed immediately apart from decrees where time was granted in the decree itself.

One is a decree against a defendant residing in a country with which our country is having hostilities. In such cases order V-rule 31 provides for passing a decree without serving notice on the defendant. In such cases no execution can be taken till lapse of one year from the date when hostilities cease. Another one is the decrees against government or public servants in that capacity cannot be executed for a period of three months by virtue of section 82(2) of CPC.

(11) Law does not allow execution against person and property simultaneously without permission of the court under order 21 rule 21 of CPC.

It becomes necessary mostly in cases of execution petitions filed at the fag end of the period of limitation. It may also become necessary when judgment debtor is trying to remove himself from the jurisdiction of the court and leave abroad or to an unknown place so that in future the realization of the decree by proceeding against his person may become difficult and already execution is pending against his property. In such cases permission has to be granted by the court considering the circumstances of each case on merits.

(12) Limitation in case of partition decree cannot begin to run until engrossed on requisite stamp paper is not correct. T

he enforceability of such a decree cannot be the subject matter of section 35 of Indian Stamp Act and hence the limitation cannot be said to be under suspension. The whole purport of the Indian Stamp Act is to make available certain dues and to collect revenue but it does not mean and imply overriding effect over another statue operating on a completely different sphere. HameedJoharav/s Abdul Salam (2001 {7} SCC 573.)

(13) Limitation for execution of a decree other than a decree for mandatory injunction is 12 years as per article 136 of the Limitation Act when the decree or order becomes enforceable

As held in Ratan Singh v/s Vijay singh (2001 {1} SCC 469)&Deep Chand v/s Mohan Lal (AIR 2000 SC 1760).The limitation for execution of a decree for mandatory injunction is three years as per article 135 of the Limitation Act. There is no limitation to execute a decree for permanent injunction.In I. Ahmed v/s K. Bibi, (AIR 1985 Orissa 102)it has been held that for execution of a decree other than a decree for mandatory injunction, 12 years is the period of limitation which commences from the date when the decree becomes enforceable, but an exception has been made in respect of the decree for perpetual injunction for which there is no period of limitation and it can be enforced at any time.

(14) Section 5 of the Limitation Act is not applicable to the execution petitions (EPs).

But Section 5 of Limitation Act is made applicable to execution applications (EAs) in State of A.P under sub-rule (3) of Rule 106 of Order 21 in view of adding sub-rule (4) to rule 106 of Order 21 by Hon'ble High Court of A.P to set aside exparte orders only.

(15) Section 15 of the Limitation Act deal with exclusion of time in computing the period of limitation for any suit or application for execution of the decree. All processes and proceedings in aid to or supplemental to execution would come within the meaning of the word “ execution “under section 15(1) of the Limitation Act as held inAnandilal& another v/s Ramnarayan& others(AIR 1984 SC 1383).An order granting time to judgment debtor amounts to stay as held in Meer Bismillah Meer JanguMusalmanv/sJagannathBinjrajMarwadi& another

(AIR 1947 Nagpur 101). An order allowing execution to take place under certain circumstances also amounts to stay.

(16) EXTENSION OF TIME:

(i) The period from the date of adjudication till annulment must be deducted in computing the period of limitation under section 78(2) of the Provincial Insolvency Act.

(ii) Statutory intervention: when there was a legislative bar to execute a decree and later due to legislative intervention decree had to be scaled down and amended and then enforceability of decree shall commence when bar ceases or from the date of amendment of decree.

(17) Any amount paid to one of the joint decree holders outside the court cannot be treated as payment in satisfaction of the decree unless the other decree holders accept the payment

As held in BotlaVenkataSubbarao v/s GonuguntlaPeddaPapayya& others(AIR 1978 AP 238). Even regard to cases where a transfer under an agreement with the decree holder is pleaded payment to transferor is valid till the assignment is recognized by the court. Even after transferring the decree if a part payment is made to the transferor before transfer is recognized by the court it has to be recorded as laid down in the judgment reported inDuvvuruBalasubrahmanyaReeddyv/sDuvvuruMunuswamy Reddy & others.(AIR 1960 AP 305).

(18) The sale of immovable properties can be affected only after a proclamation made in the manner prescribed for effecting attachment of immovable property and there should be clear fifteen days time between the proclamation and the date of sale.

Defect in the proclamation affects validity of sale. There are three stages i) prior to issue of rule 22 notice (ii) the period between rule 22 notice and rule 66 notice (iii) the period between rule 66 notice and actual sale. When rule 22 notice was served on the judgment debtor and he does not contest it, contests it but does not raise certain pleas, he cannot raise any further pleas or questions in regard to the execution up to that stage in subsequent stages. At the stage of rule 66 notice again an opportunity is given to the judgment debtor to raise his objections in regard to what was happened up to service of rule 66 notice. At the stage of rule 66 notice also the irregularity or illegality of the attachment effected can be questioned. The batta for the sale warrant shall be paid a week before the date fixed for sale and warrant of sale shall then issue as per rule 260 of CRP. In case of default the court may adjourn the EP to a fixed day or may dismiss the execution petition.

(19) In the case of sale of immovable property 25% of purchase money should be paid immediately after a person is declared as purchaser and the remaining amount should be paid on the fifteenth day from the sale of the immovable property and also the amount required for purchase of stamps for sale certificate.

If 25% of the amount is not deposited immediately the sale has to be cancelled and fresh sale has to be conducted at the risk of the auction purchaser (Order 21 rule 84 CPC).

(20) Limitation prescribed for various petitions or applications in execution.

(i) Recording of payment/adjustment made to decree holder outside the court in satisfaction of a decree: - Article 125 of the Limitation Act prescribed thirty days for recording such payment/adjustment. There is no limitation for the decree holder to report such payment to the court. When any such payment is pleaded in a counter by judgment debtor and not recorded according to article 125 of the Limitation Act and is not accepted by the decree holder, the court can simply say that the said plea is barred by article 125 of the Limitation Act. In such cases the only course open to the judgment debtor is to sue the decree holder on the ground that he has not reported payment to the court.

(ii) Seeking installments after decree: An application for payment of the amount due under decree by installments under Order 20 Rule 11 (2) C.P.C., has to be filed within 30 days from the date of decree according to Article 126 of the Limitation Act, 1963.

(iv) Setting aside sale petitions:

a) Order 21 rule 89: When sale is sought to be set aside after depositing amount.

b) Order 21 rule 90: When sale is sought to be set aside on the ground of irregularity or fraud in conducting sale.

c) Order 21 rule91: When sale is sought to be set aside on the ground that the judgment debtor has no title to the property.

The limitation prescribed is 60 days under article 127 of the Limitation Act. But the payment required to be made Order 21 rule 89 is for setting aside sale is still 30 days only from the date of sale as per Order 21 rule 92.

d) Order 21 rule 94: For delivery in pursuance of sale certificate should be filed within a year under article 134 of the Limitation Act from the date of confirmation of sale as held in PattamKhader Khan v/s PattamSardar Khan & another (1997{1} ALT 20).

e) Order 21 rule 97: For removal of any resistance/obstruction in the process of delivery of property the limitation prescribed is thirty days under article 129 of the Limitation Act.

f) Order 21 rule 99: when third party is removed or dispossessed from immovable property in execution of a decree against another person such third party can approach court for placing back him in possession within 30 days under article 128 of the Limitation Act. If he fails to take such recourse within 30 days his remedy is to file a regular suit for possession as held in ThimmareddiVenkataRamana Reddy & another v/sChalamacherlaRaghava Reddy (1978 (1) An.W.R 526).

If those applications are not filed within the time prescribed they have to be rejected as barred by limitation.

(21) RESTITUTION (u/s144 CPC):

Such cases arise when a decree is set aside or varied and by then the decree or order had been executed.

(22) RATEABLE DISTRIBUTION (under sections 73 & 63 CPC):

The small cause decree holder is not entitled to rateable distribution with a decree on the original side unless small cause decree is transferred to original side as held in K. Subbayamma v/s K. Bangarraju(AIR 1961 AP at page 422). The decree holders who attached the same property prior to its sale though from different courts are entitled to rateable distribution. Rateable distribution has to be worked out which is the highest of the courts that attached the property or in case they are of the same category then the first of them who attached the property. One should satisfy the following conditions in order to seek rateable distribution.

i) Assets must be held by the court to which rateable application is presented.

ii) The decrees must be for money against the same judgment debtor. iii) The decree holders must have applied for execution to the court which holds the assets before the receipt of such assets and in case the assets are realized by sale of immovable property then, they should have applied for rateable distribution prior to sale of the property.

+List of execution petitions & execution applications under order 21 of CPC

Execution Petitions:

1 Or. 21 r 11 A r/w R37

To arrest the judgment debtor for the failure to pay the decretal amount and send to civil prison

2 Or.21 r 13 r/w 54

To attach the immovable property as per schedule

3 Or. 21 r 32

To order specific performance for restitution of conjugal rights or injunction granted

4 Or.21, r 34

To execute sale deed or endorsement on the negotiable instrument

5 Or.21, r 35

To enforce JDr to deliver immovable property

6 Or.21 r 43

To attach movable property other than agricultural produce in possession of judgment debtor

7 Or.21, r 43 A

To seek custody of movable property (perishable)

8 Or. 21, r 44

To attach agricultural produce

9 Or.21, r 46

To attach debt, share and other property of JDr not in his possession.

10

Or.21, r 48

To Attach salary of public servants

11 Or.21, r 49

To attach partnership property

12 Or.21, r 50

To execute a decree against firm

13 Or .21, r 51

To attach negotiable instrument

14 Or.21, r 52

To attach property in custody of court or public officer

15 Or. 21, r 53

To attach decree

16 Or. 21, r 22

To seek permission to execute the decree simultaneously for arrest , detentionand attachment and sale of properties.

Execution Applications.

16 Or.21, r 26

To stay execution of decree

17 Or.21 r 37 r/w sec.59

To release the judgment debtor from civil prison on the ground of illness

18 Or.21, r 58

To adjudicate of claims/ objections to attached property

19 Or.21, r 59

To stay sale

20 Or. 21, r 72

To permit the decree holder to bid for sale of property and set off

21

Or.21, r 72 A

To Permit the mortgagee to bid in the public auction

22 Or.21, r 83

To order postponement of sale to enable JDr to raise amount of decree

23 Or.21, r 89

To set aside the sale on deposit

24 Or.21, r 90

To set aside the sale on ground of irregularity or fraud

25 Or.21, r 91

To set aside the sale for judgment debtor having no saleable interest

26 Or.21, r 95

To delivery property in occupancy of judgment debtor

27 Or.21, r 96

To delivery property in occupancy of tenant.

28 Or.21, r 97

To remove resistance or obstruction

29 Or.21, r 99

To order restoration of property other than JDr who was dispossessed

30 Or.21, r 100

To order restoration of possession of property

31.Or.21, r 106

To set aside order passed exparte.

Compiled by: A. HAZARATH RAO, District Judge (Retd)