Reference Materials

Execution

Publication:
Chandigarh Judicial Academy

Compiled by
Sanjeev Kumar Choudhary
Assistant Professor of Law
Gujarat National Law University
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Executions

Order 21 of the Code of Civil Procedure deals with the solemn

act of execution of the decrees passed by the Courts from grassroots to the
top. Ultimately, after the judgment attains finality or where there is no stay
in the execution by any Appellate or Revisional Court, it is the Court of
original jurisdiction which performs this sacred act of implementation of the
execution. It has been often seen that in view of less number of units
prescribed for execution of the decree, the executions are not give that much
time and importance as required and desired. It is only the execution, which
reveals and signifies the importance of the decrees to be passed and the
pedestal of the Court and sanctity of the document. As such, the decrees are
required to be executed with force, so that the Decree Holder having a
document containing declaration of his rights may not feel cheated or
helpless having earned no fruits of the lis got settled by him from the Court
even after spending decades altogether.
This Order can be divided into six parts. If the Courts deal the
executions while considering the applications/objections topic wise, it would
be easy for them to adjudicate the matter easily. The main classification is
as under:-
(1) Applications for execution and the process to be applied.
(2) Stay of executions.
(3) Mode of executions.
(4) Sale of immovable property and movable property.
(5) Adjudication of the claims and objections.
(6) Resistance and delivery of possession.
Order 21 Rule 1 CPC : Method of adjustment in money decree -
Order 21 Rule 1 of the CPC provides for the modes of
paying the money decree. First of all, the Court should appropriate the
amount towards interest, then towards the costs and thereafter, towards
the principal, unless, of course, the deposit is indicated to be towards
specified heads by the judgment debtor while making the deposit and
intimating the decree holder of his intention. This Order also provides
mode for executing the decrees and implementation of even decrees of
specific performance, permanent injunction, restitution of conjugal rights
and possession etc.
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The Hon'ble Supreme Court in case Gurpreet Singh Vs. Union

of India, 2008 (2) RCR (Civil) 207, has observed as under:-
26. Thus, in cases of execution of money decrees or award decrees,
or rather, decrees other than mortgage decrees, interest ceases to
run on the amount deposited, to the extent of the deposit. It is true
that if the amount falls short, the decree holder may be entitled to
apply the rule of appropriation by appropriating the amount first
towards the interest, then towards the costs and then towards the
principal amount due under the decree. But the fact remains that
to the extent of the deposit, no further interest is payable thereon to
the decree holder and there is no question of the decree holder
claiming a re-appropriation when it is found that more amounts are
due to him and the same is also deposited by the judgment debtor.
In other words, the scheme does not contemplate a reopening of the
satisfaction to the extent it has occurred by the deposit. No further
interest would run on the sum appropriated towards the principal.

27. As an illustration, we can take the following situation.

Suppose, a decree is passed for a sum of Rs.5,000/- by the trial
court along with interest and costs and the judgment debtor deposits
the same and gives notice to the decree holder either by
approaching the executing court under Order XXI Rule 2 of the
Code or by making the deposit in the execution taken out by the
decree-holder under Order XXI Rule 1 of the Code. The decree
holder is not satisfied with the decree of the trial court. He goes up
in appeal and the appellate court enhances the decree amount to
Rs.10,000/- with interest and costs. The rule in terms of Order XXI
Rule 1, as it now stands, in the background of Order XXIV would
clearly be, that the further obligation of the judgment debtor is only
to deposit the additional amount of Rs. 5,000/- decreed by the
appellate court with interest thereon from the date the interest is
held due and the costs of the appeal. The decree holder would not
be entitled to say that he can get further interest even on the sum of
Rs.5,000/- decreed by the trial court and deposited by the judgment
debtor even before the enhancement of the amount by the appellate
court or that he can re-open the transaction and make a re-
appropriation of interest first on Rs.10,000/-, costs and then the
principal and claim interest on the whole of the balance sum again.
Certainly, at both stages, if there is short-fall in deposit, the decree
holder may be entitled to apply the deposit first towards interest,
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then towards costs and the balance towards the principal. But that
is different from saying that in spite of his deposit of the amounts
decreed by the trial court, the judgment debtor would still be liable
for interest on the whole of the principal amount in case the
appellate court enhances the same and awards interest on the
enhanced amount. This position regarding execution of money
decrees has now become clear in the light of the amendments to
Order XXI Rule 1 by Act 104 of 1976. The argument that what is
awarded by the appellate court is the amount that should have been
awarded by the trial court and so looked at, until the entire
principal is paid, the decree holder would be entitled to interest on
the amount awarded by the appellate court and therefore he can
seek to make a re-appropriation by first crediting the amount
deposited by the judgment debtor pursuant to the decree of the trial
court towards the cost in both the courts, towards the interest due
on the entire amount and only thereafter towards the principal, is
not justified on the scheme of Order XXI Rule 1 understood in the
context of Order XXIV Rules 1 to 4 of the Code. The principle
appears to be that if a part of the principal has been paid along with
interest due thereon, as on the date of issuance of notice of deposit,
interest on that part of the principal sum will cease to run thereafter.
In other words, there is no obligation on the judgment debtor to pay
interest on that part of the principal which he has already paid or
deposited.”

Order 21 Rule 42 CPC

Attachment before judgment in execution:-
Order 21 Rule 42 CPC deals with the attachment before the
Court holds an inquiry as to rent or mesne profits or any other matter, the
property of the judgment debtor could be attached, before the amount due is
escertained in the terms of Order 38 Rule 5 CPC.
Order 21 Rule 29 CPC: whether the decree of other Court could be
stayed-
The scope of applicability of Order 21 Rule 29 CPC;- Rule
29 refers to cases where the execution of the decree held by the Decree
Holder could be stayed. For the applicability of Order 21 Rule 29 CPC, two
conditions are to be fulfilled; (1) a proceeding in execution of the decree of
that Court started at the instance of the decree holder against the judgment-
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debtor and (2) a suit at the instance of the same judgment-debtor against the
holder of the decree of that Court.
Transferee Court has no power to stay the execution of the
decree pending in its Court because the decree is not passed by that Court.
Subsequent sale in spite of stay order held valid.
While elaborating Order 21 Rule 29 of the Civil Procedure
code, the Hon'ble Supreme Court in Shaukat Hussain @ Ali Akram and
others Vs. Smt. Bhuneshwari Devi (dead) by L.Rs. & others, 1973 AIR
(SC) 528, has observed as under:-

4. Mr. Chagla appearing on behalf of the appellants prefaced

his arguments by stating that the property attached in
execution was a very valuable property worth more than Rs.
20,000/- and had been sold for a paltry sum due under the
decree and this circumstance itself was sufficient to show that
the sale was liable to be set aside. That contention is clearly
not open on the materials on record. A judgment-debtor can
ask for setting aside a sale in execution of a decree under
section 47 C.P.C. and, in special circumstances which attract
the provisions of Order XXI rule 90 he may also apply to the
court to set aside the sale on the ground of material
irregularity or fraud in publishing or conducting the sale
provided he further proves to the satisfaction of the court that
he has sustained substantial injury by reason of the
irregularity or fraud. The application made to the executing
court in the present case by the judgment-debtors was not one
under Order XXI rule 90 C.P.C. That is conceded by Mr. 16-
L172Sup.CI/72 1026 Chagla. Had it been the case that on
account of fraud or material irregularity in conducting the
sale, the sale required to be set aside, evidence would have
been led on the point and there would have been a clear
finding as to the substantial injury. The judgments of all
the three courts proceed entirely on the basis that the
application was one under section 47 C.P.C. and not under
Order XXI Rule 90 C.P.C. They do not deal with the question
of- material irregularity or fraud in the conduct of the sale,
nor do they deal with the injury caused to the judgment-
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debtors. The only question which was agitated before the

courts was whether the sale was illegal in view of the fact
that the execution proceedings had taken place during the
existence of a stay issued by a competent court. It was also
common ground that the stay issued by the Munsif was an
Order passed under Order XXI Rule 29 C.P.C. The first two
courts held that the stay was in existence when the execution
proceedings ended in the sale while the High Court held that
factually it was so because the sale took place on 6-8-1963, the
stay, if any, having ceased to operate after 5-8-1963. The High
Court further pointed out that the stay under Order XXI Rule 29
issued by the court of the Munsif Gaya was null and void as it
was passed by a court without competence and, therefore, in
law there was no legal stay of execution and the sale which
took place in due course after attachment and proclamation of
sale, was a valid one.

The scope of Rules 26 to 29 of Order 21 CPC:-

“6. Order 21, Civil Procedure Code deals generally with the
execution of decree and orders. That order is divided into several
topics, each topic containing a number of rules. The first four topics
cover rules 1 to 25 and the fifth topic, namely, stay of execution
comprises 4 rules, namely, Rules 26 to 29. A perusal of these rules
will show that the first three rules i.e. Rules 26 to 28 deal with the
powers and duties of a Court to which a decree has been sent for
execution. Under Rule 26, that Court can stay the execution of the
decree transferred to it for execution 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 over the former
for an order to stay execution or for any other order relating to the
decree or execution which might have been made by the Court of
first instance or the appellate Court. It will be seen, therefore, that
under Rule 26 the transferee Court has a limited power to stay
execution before it. Moreover, under sub rule (2) if any property is
seized by it in the course of execution, it may even order the
restitution of the property pending the result of the application made
by the judgment-debtor to the Court of the first instance or to the
appellate Court. Rule 27 says that any such restitution made under
sub-rule (2) of Rule 26 will not prevent the property of the
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judgment-debtor from being retaken in execution of the decree sent

for execution. Rule 28 provides that any order of the Court by
which the decree was passed, in relation to the execution of such
decree, shall be binding upon the Court to which the decree was sent
for execution. And then we have Rule 29 which deals with a
different situation. The rule is as follows:
“Where a suit is pending in any Court against the holder of a
decree of 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.”
It is obvious from a mere perusal of the rule that there should be
simultaneously two proceedings in one Court. One is the proceeding
in execution at the instance of the decree-holder against the
judgment-debtor and the other a suit at the instance of the judgment-
debtor against the decree holder. That is a condition under which
the Court in which the suit is pending may stay the execution before
it, if that was the only condition, Mr. Chagla would be right in his
contention, because admittedly there was a proceeding in execution
by the decree-holder against the judgment-debtor in the Court of
Munsif 1st Gaya and there was also a suit at the instance of the
judgment-debtor against the decree-holder in that Court. But there
is a snag in that rule. It is not enough that there is a suit pending by
the judgment-debtor, it is further necessary that the suit must be
against the holder of a decree of such Court. The words “such
Court” are important “Such Court” means in the context of that rule
the Court in which the suit is pending. In other words, the suit must
be one not only pending in that Court but also one against the holder
of a decree of that Court. That appears to be the plain meaning of the
rule.”

Order 21 Rule 35 (3) and Rule 97 CPC

These two Rule provides a right to the Decree Holder to
complain against a person, who creates resistance in the execution of the
decree.
Order 21 Rule 41 CPC- Arrest and detention:-
In case of money decree, as per Order 21 Rule 41 CPC, where
the decree cannot be executed otherwise by way of attachment or sale of the
property, the Court could make an order for the attendance and examination
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of such Judgment Debtor, or officer or any other person and for the
production of any books or documents. If the decree remained unsatisfied
for 30 days or otherwise the Judgment Debtor disobeys the decree, the Court
may direct the person disobeying the order to be detained in the civil prison
for a term not exceeding three months.
Section 47 of CPC
All the questions relating to execution, discharge and
satisfaction of the decree are to be decided by the Executing Court and
even the decision of the complicated questions is also not prohibited.
Section 47 of the Civil Procedure Code provides for disposal of
all the questions arising between the parties to the suit, in which the decree
was passed, or their representatives, and relating to the execution, discharge
or satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit. Even the Code bars the powers to decide
as the person raising objection is a Judgment Debtor or his representative
and such question would also relate to execution, discharge or satisfaction of
a decree.
In case Jugalkishore Saraf Vs. M/s Raw Cotton Co. Ltd., 1955
AIR (SC) 376, the Hon'ble Apex Court has observed as under:-
“There could be no -objection to decide questions involving
investigation of complicated facts or difficult questions of law in
execution proceedings, as section 47 of the Code of Civil
Procedure authorises the Court executing the decree to decide all
questions arising therein and relating to execution of the decree
and subs-s- (2) further authorises the executing Court to treat
a proceeding under the section as a suit thus obviating the necessity
of filing a separate suit for the determination of the same. The line
of decisions of the High Court of Bombay beginning with 11 Bom
506 and ending with AIR 1946 Bom 272 importing the equitable
principle above enunciated therefore appears to me to be more in
consonance with law and equity than the strict and
narrow 'interpretation put on the words "where a
decree............... is transferred by assignment in writing" by the
High Courts of Madras and Calcutta in the decisions above noted.”
Order 21 Rule 16 CPC:-
The assignment and transfer of the decree made, when assignment is
complete. It was observed by the Hon'ble Supreme Court in Jugalkishore's case
(supra), as under:-
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“54. Is there any warrant for importing this equitable principle

while construing the statutory 'Provision enacted in Order 21, rule
16 of the Code of Civil Procedure? The Code of Civil Procedure
does not prescribe any mode in which an assignment in writing
has got to be executed in order to effectuate a transfer of a decree.
The only other statutory provision in regard to assignments in
writing is to be found in Chapter VIII of the Transfer of
Property Act which relates to transfers of actionable claims
and an actionable claim has been defined in section 3 of the Act as
"a claim to any debt................ or to any beneficial interest in
movable property not in the possession, either actual or
constructive, of the claimant, which the Civil Courts
recognize as affording grounds for relief...................”
A judgment debt or decree is not an actionable claim for no
action is necessary to realise it. It has already been the subject of
an action and is secured by the decree. A decree to be passed in
future also does not come as such within the definition of an
actionable claim and an assignment or transfer thereof need
not be effected in the manner prescribed by section 130 of the
Transfer of Property Act. If therefore the assignment or
transfer of a decree to be passed in the future does not require to be
effectuated in the manner prescribed in the statute there would
be no objection to the 1415 operation of the equitable principle
above enunciated and the contract to assign evidenced by the
assignment in writing becoming a complete equitable
assignment of the decree when passed.
The assignment in writing of the decree to be passed would thus
result in a contract to assign which contract to assign would
become a complete equitable assignment on the decree being Passed
and would fulfill the requirements of Order XXI, rule 16 in so
far as the assignment or the transfer of -the decree would in
that event be effectuated by an assignment in writing
which became a complete equitable assignment of the decree when
passed. There is nothing in the provisions of the Civil Procedure
Code or any other law which prevents the operation of this equitable
principle and in working out the rights and liabilities of the
transferee of a decree on the one hand and the decree-holder
and the judgment debtor on the other, there is no warrant
for reading the words "where a decree....................... is transferred
by assignment in writing" in the strict and narrow sense,, in which
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they have been read by the High Court of Madras in 17 Mad

LJ 391 and the High Court of Calcutta in AIR 1924 Cal 661 and AIR
1932 Cal 439.
It is significant to observe that the High Court of Calcutta in AIR
1939 Cal 715 applied this equitable principle and held that the
plaintiff in whose favour the defendant had executed a mortgage
bond assigning by way of security the decree that would be passed
in a suit instituted by him against a third party for recovery of
money due on unpaid bills for work done was entitled to a
declaration that he was the assignee of the decree passed in favour of
the defendants and was as such entitled to realise the decretal debt
either amicably or by execution. If the plaintiff was thus declared to
be the assignee of the decree subsequently passed in favour of the
defendant and entitled to realise the decretal amount by execution
could apply for execution of the decree and avail himself of the
provisions of Order 21, Rule 16 as the assignee of the
decree -which was passed subsequent to the date of the
assignment in writing in his favour.”

Order 21 Rule 99 CPC

Rule 99 of Order 21 provides an objector, other than the
Judgment Debtor, to raise objection claiming any right in the property from
which he is directed to be dispossessed. Rule 99 of Order 21 reads as under:-
“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 the possession of such property or, where such property
has been sold 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 adjudicate upon the application in accordance with
the provisions herein contained.”
The other question to be noticed is that normally the Courts
frame the issues while deciding the lis between the parties, but the law does
not provide that in each case, the issues are required to be framed. Where
the objections raised by the third party are superfluous, then the Court can
refuse to entertain the same and such objections could summarily be tried.
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Where objections have some merits, then the Court could decide those
objections after seeking reply and evidence of the parties.
Rules 105 and 106 of Order 21 CPC, govern the procedure for
adjudication of the objection:-
These Rules read as under:-
“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 parte 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.
106. Setting aside orders passed ex parte, etc.
(1) The applicant, against whom an Order is made under sub-
rule (2) of rule 105 or the opposite party against whom an
Order is passed ex parte 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
on 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 parte order, the notice was not duly served, within thirty
days from the date when the applicant had knowledge of the
order.”
Restoration of the objections:-
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Rule 106 of this Order indicates that if the objector fails to

appear, then the application could be dismissed and on showing the
sufficient cause, the Court could restore the said objection petition and
decide the same on merits.
Order 21 Rule 92 (2):- The conditions when the sale could be set aside
after auction-
Order 21 Rule 92 (2) provides that if the deposit is made within
30 days from the date of sale and an application is filed, then the Court
would have no discretion but to set aside the sale and if the amount is not
deposited within 30 days, but within 60 days, then it will be within the
discretion of the Court, whether or not to grant the application. However,
the application could be filed within 60 days. Rule 92 (2) of Order 21 CPC
reads as under:-
“(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 sixty days from the date of
sale, 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:”

Order 21 Rule 89 CPC

Primary condition precedent to set aside the sale of a
mortgaged property is to pay the mortgage money in addition to
depositing of 5 percent of the purchase money in the Court.
While elaborating Rule 89 of Order 21 CPC, the Hon'ble
Supreme Court in case Tribhovandas Purshottamdas Thakkar Vs. Ratilal
Motilal Patel and others, 1968 AIR (SC) 372, has held as under:-
5. It was urged, however, that the mortgagee having agreed to,
abandon the execution proceeding and to wait for six months
for receiving payment of the mortgage dues
from the trustees, abandonment of the execution
proceeding was in law equivalent to, payment to the decree-
holder of the amount specified in the proclamation of sale
for the recovery of which the sale was ordered. This in
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our Judgment is a futile argument. By abandoning the

execution proceeding the claim of the creditor is not
extinguished: he is entitled to commence fresh proceedings for
sale of the property. Rule 89 of Order 21 is intended to
confer a right upon the judgment- debtor, even after the
property is sold, to satisfy the claim of the decree-holder
and to compensate the auction purchaser by paying him
5% of the purchase-money. The provision, is not intended
to defeat the claim of the auction purchaser, unless the
decree is simultaneously satisfied. When the judgment
creditor agrees to extend the time for payment of the
amount for a specified period and in the meanwhile agrees to
receive interest accruing due on the amount of the decree,
the condition requiring the judgment debtor to deposit in
Court for payment to the decree holder the amount
specified in the proclamation of sale for the recovery of
which the sale was ordered. cannot be deemed to be complied
with.
6. Our attention was invited to several decisions in which it
was held, that if the judgment-debtor instead of depositing in
Court the amount specified in the proclamation of sale for
recovery of which the property is sold, satisfies the
claim of the decree-holder under the decree, the
requirements of Order 21 Rule 89 are complied with: Subbayya
v. Venkata Subba Reddi, AIR 1935 Mad 1050;
Muthuvenkatapathy Reddy v. Kuppu Reddi, AIR 1940
Mad 427; ILR (1940) Mad 699 (FB); Laxmansing
Baliramsing v. Laxminarayan Deosthan Kapshi, ILR
(1947) Nag 802; Rabindra Nath V. Harendra Kumar, AIR
1956 Cal 462; M.H.Shivaji Rao V. Niranjanaiah, AIR 1962
Mys 36. These cases proceed upon interpretation of the
expression 'less any amount which may since the date of
such proclamation of sale, have been received" occurring in
clause (b) of Rule 89. It is unnecessary to venture an opinion
whether these cases were correctly decided. It is
sufficient to observe that an order setting aside a court sale, in
execution of a mortgage decree cannot be obtained, under
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Order 21 Rule 89 of the Code of Civil Procedure by merely

depositing 5 % of the purchase- money for payment to the
auction purchaser and persuading the decree-holder to
abandon the execution proceedings.”
The essentials for setting aside the sale have also been
elaborately discussed by the Hob'ble Apex Court in case Dadi
Jagannadham Vs. Jammulu Ramulu, 2001(4) RCR (Civil) 267, wherein it
has been held as under:-
“18. Having given our careful consideration to the question,
we are of the opinion that there is no anomaly and that there are
no different periods of limitation for making deposits and/or
filing an application for setting aside the sale. It is by virtue of
Order 21 Rule 89 CPC that an application for setting aside a sale
and a deposit can be made. Order 21 Rule 89 CPC does not
prescribe any period within which the application is to be made
or deposit is to be made. All that Order 21 Rule 92 (2) provides
is that if the deposit is made within 30 days from the date of sale
and an application is filed then the Court would have no
discretion but to set aside the sale. That doesnot mean that if the
deposit is made after 30 days the Court could not entertain the
application. If the deposit is made beyond the period of 30
days, but within the period 60 days, then it will be within the
discretion of the Court whether or not to grant the application.
Thus an application can be made within the period prescribed
under Article 127, Limitation Act. As an application can be
made within 60 days and, as stated above, no period for making
a deposit is prescribed under Order 21 Rule 91 (2) the deposit
can also be made within 60 days. In our view, therefore, the
view expressed in P.K. Unni's case that Order 21 Rule 92(2)
CPC prescribes a period of limitation for making a deposit is not
correct.”
Other conditions where sale could be set aside
Order 21 Rule 90 CPC- deals with the situations when the sale could be
set aside:-
Mere to establish irregularity or fraud is not sufficient to set
aside the sale. The applicant must establish that material irregularity or fraud
has resulted in substantial injury to the applicant. There is no specific
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provision under Order 21 Rule 67 CPC that sale must be advertised in the
local newspaper. Therefore, irregularity cannot be given weight in the
absence of any such order made by the Court.
The Hon'ble Apex Court in case Saheb Khan Vs. Mohd.
Yusufuddin and others, 2006 AIC (SC) 1871, has further observed as
under:-
“13. Therefore, before the sale can be set aside merely
establishing a material irregularity or fraud will not do. The
applicant must go further and establish to the satisfaction of the
Court that the material irregularity or fraud has resulted in
substantial injury to the applicant. Conversely even if the applicant
has suffered substantial injury by reason of the sale, this would not
be sufficient to set the sale aside unless substantial injury has been
occasioned by a material irregularity or fraud in publishing or
conducting the sale.
14. A charge of fraud or material irregularity under Order 21 Rule
90 must be specifically made with sufficient particulars. Bald
allegations would not do. The facts must be established which could
reasonably sustain such a charge. In the case before us, no such
particulars have been given by the respondent of the alleged
collusion between the other respondents and the auction purchaser.
There is also no material irregularity in publishing or conducting the
sale. There was sufficient compliance with the orders of Order 21
Rule 67(1) read with Order 21 Rule 54(2). No doubt, the Trial Court
has said that the sale should be given wide publicity but that does not
necessarily mean by publication in the newspapers. Theprovisions
of Order 21 Rule 67 clearly provide if the sale is tobe advertised in
the local newspaper, there must be specific directionof Court to that
effect. In the absence of such direction, the proclamation of sale has
to be made under Order 21 Rule 67(1) “as nearly as may be in the
manner prescribed by Rule 54, Sub-rule (2).” Rule 54 sub-rule (2)
provides for the method of publication of notice and reads as
follows:
“(2). The order shall be proclaimed at some place on or adjacent to
such property by beat of drum or other customary mode, and a copy
of the order shall be affixed on a conspicuous part of the property
and then upon a conspicuous part of the Court-house, and also where
the property is land paying revenue to the Government, in the office
of the Collector of the district in which the land is situated (and,
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where the property is land situate in a village, also in the office of

the Gram Panchayat, if any, having jurisdiction over that village).”
Order 21 Rule 58 CPC- Attachment of mortgaged property:-
Attachment before judgment- Suit under Order 21 Rule 58 CPC
to release the property from attachment. If the property is under attachment
in another money suit and the mortgagee is not in actual or constructive
possession of the property on that date, then the objection by such objector
under Order 21 Rule 58 CPC to such attachment is not maintainable.
While further elaborating Order 21 Rule 58 CPC, the Hon'ble
Supreme Court in case Kabidi Venku Sah Vs. Sayed Abdul Hai and
another, 1984 AIR (SC) 117, has observed as under:-
“7. The matter is quite simple but has unfortunately dragged on
for nearly 15 years on account of a wrong and ill advised step taken
by the appellant. The learned Principal Civil Judge erred in
observing that what was attached before judgment on 24.09.1964 is
not the equity of redemption alone but the entire property. He has
rightly held that in the claim petition the question of the mortgage of
1948, the mortgage decree, the Court auction sale and delivery of
possession of the property to the appellant pursuant to that sale
cannot be contended to be collusive and observed that the first
respondent could, if at all, challenge them only in a separate suit.
That being so, undoubtedly the mortgage of 1948 in favour of the
appellant was there and what remained with the mortgagor was only
the equity of redemption until it was brought to an end by the sale in
execution of the mortgage decree confirmed by the court on
28.08.1968. Therefore, there could be no doubt whatsoever that on
24.09.1964 when the property was attached before judgment long
after the mortgage dated 31.07.1948 and two years, before the suit
and the mortgage was filed in 1966, the mortgagor had the equity of
redemption and that what could have been attached in law on
24.09.1964 was the equity of redemption alone and not the entire
interest in the property. There should have been no difficulty for the
learned Judge of the High Court holding that the appellant could not
have been in possession of the property, actual or constructive, for
he was only a simple mortgagee who had nothing to do with
possession and he got delivery of the property through the court as a
decree holder – court auction purchaser on 28.04.1968 as noticed by
the learned Judge in his judgment. The appellant had no doubt an
interest in the property as mortgagee, but he could not have been in
 16

possession of the property as he was only a simple mortgagee. The

appellant was a secured creditor as he had a mortgage in his favour,
and any attachment effected after the date of the mortgage and
during its subsistence can be only subject to that mortgage. He had
no interest in the equity of redemption on the date of the attachment
and could not therefore have had any objection to that right of the
mortgagor being attached by the first respondent. Therefore, he was
not a person who could in law file any claim petition under Order 21
Rule 58 objecting to the attachment of the equity of redemption. We
may notice here what Order 21 Rule 58(1) says and it is this:
“Where any claims preferred to, or any objection is made to
the attachment of, any property attached in execution of a decree on
the ground that such property is not liable to such attachment, the
court shall proceed to adjudicate upon the claim or objection in
accordance with the provisions herein contained.”

8. The attaching creditor can bring the property to sale only

subject to the mortgage so long as it is subsisting. That is to say he
could bring only the mortgagor's equity of redemption to sale if it
had not already been extinguished by its sale in execution of any
decree obtained on that mortgage. But, if the equity of redemption
has already been sold after the date of the attachment the attaching,
decree holder could proceed only against the balance, if any, of the
sale price left after satisfying the mortgagee decree-holder's claim
under the decree. The mortgagee's right is thus not affected, at all.
Therefore, it is we had observed earlier that the appellant had taken a
wrong and ill advised step in coming forward with the claim petiton
which has resulted in the matter dragging on for over 14 years from
15.01.1969. The appellant could not object to the attachment of the
equity of redemption. The appeal fails and is dismissed, but under
the circumstances of the case without costs.”

Order 21 Rule 35 (2) CPC:- Attachment of share of coparcenary

property and limitation to take possession of such property-
Decree against father and four sons. Execution against
Joint Family property- Auction purchaser purchased at the auction sale
was the share of four sons' with joint family property. Sons' original
share was 4/5th reduced to 2/3rd on the date of auction sale, after the
birth of another son- 1/6th share also allotted in partition suit to auction
purchaser, but he was entitled only to four sons' share that is 2/3 rd share
in the property.
 17

Alienation by coparceners of undivided interest – Alienee is

not entitled to possession of interest purchased by him till a partition
has made that being so, it is arguable that the coparceners can never be
in adverse possession of the properties as against him as possession can
be adverse against a person only when he is entitled to possession.
In case M.V.S. Manikayala Rao Vs. M. Narasimhaswami and
others, 1966 AIR (SC) 470, the Hon'ble Supreme Court has held as under:-
“5. As earlier stated the High Court held that Article 144 applied.
The application of this article seems to us to present great difficulties
to some of which we like to refer. That article deals with a suit for
possession of immovable property or any interest therein not
otherwise specially provided for and prescribes a period of twelve
years commencing from the date when the possession of the
defendant becomes adverse to the plaintiff. This article obviously
contemplates a suit for possession of property where the defendant
might be in adverse possession of it as against the plaintiff. Now, it is
well settled that the purchaser of a coparcener's undivided interest in
joint family property is not entitled to possession of what he has
purchased. His only right is to sue for partition of the property and
ask for allotment to him of that which on partition might be found to
fall to the share of the coparcener whose share he had purchased. His
right to possession “would date from the period when a specific
allotment was made in his favour”: Sidheshwar Mukherjee v.
Bhubneshwar Prasad Narain Singh, 1954 SCR 177 at P.188. It
would, therefore, appear that Sivayya was not entitled to possession
till a partition had been made. That being so, it is arguable that the
defendants in the suit could never have been in adverse possession of
the properties as against him as possession could be adverse against a
person only when he was entitled to possession. Support for this
view may be found in some of the observations in the Madras Full
Bench case of Vyapuri v. Sonamma Boi Ammani, ILR 39 Mad 811.
6. In the case in hand the learned Judges of the High Court
thought that the applicability of Article 144 to a suit like thepresent
one was supported by the decision of theJudicial Committee in
Sudarsan Das v. Ram Kirpal Das, 77 Ind App 42. We feel
considerable doubt that the case furnishes any assistance. It held that
Article 144 extends the conception of adverse possession to include
an interest in immovable property as well as the property itself. In
that case, a purchaser of an undivided share in a property which was
 18

not coparcenary property, had obtained possession of that share and

he was held to have acquired title to it by adverse possession. That
was not a case of a person who was not entitled to possession. We
are not now concerned with adverse possession of an interest in
property.
Order 21 Rule 35 (3) CPC :- Extent of force to be used to take
possession-
This Rule provides that even if the possession of some premises
is not delivered, then the Court, after giving reasonable warning and facility
to any woman not appearing in public according to the customs of the
country to withdraw, remove or open any lock or bolt or break any door or
do any other act necessary for putting the Decree-Holder in possession.

Order 21 Rule 17, Order 34 Rule 4, Rules 14 and 15:- Recovery of

maintenance by sale of the property over which charge was created-
Execution for maintenance after the charge has been created by
the Court on many lots of the properties. Even if the purchase of one lot is
found to be made by the decree-holder prior to the execution, then the
recovery of maintenance could be effected from the other properties over
which, the charge has been created.
In case Janapareddy Latchan Naidu Vs. Janapareddy
Sanyasamma, 1963 AIR (SC) 1556, the Hon'ble Apex Court has observed
as under:-
“6. The argument involves a fallacy because it assumes that a
charge created by a decree on a number of properties disappears
when the charge-holder in execution of the charge decree purchases
one lot of properties. An executory charge-decree for maintenance
becomes executable again and again as future sums become due.
The executability of the decree keeps the charge alive on the
remaining properties originally charged till the future amount cease.
In other words the charge subsists as long as the decree subsists. By
the execution the charge is not transferred in its entirety to the
properties purchased by the charge-holder. Nor is the charge divided
between those properties and those which still remain with the
judgment debtor. The whole of the charge continues over all the
properties jointly and severally. Nor is any priority established
between the properties purchased by the charge-holder and those that
remain. It is not permissible to seek an analogy from the case of a
 19

mortgage. A charge is different from a mortgage. A mortgage is a

transfer of an interest in property while a charge is merely a right to
receive payment out of some specified property. The former is
described a jus in rem and the latter as only a jus ad rem. In the case
of a simple mortgage there is a personal liability express or implied
but in the case of charge there is not such personal liability and the
decree, if it seeks to charge the judgment debtor personally, has to do
so in addition to the charge. This being the distinction it appears to
us that the appellant's contention that the consequences of a
mortgagee acquiring a share of the mortgagor in a portion of the
mortgaged property obtain in the case of a charge is ill founded. The
charge can be enforced against all the properties or severally.”

Date: Justice A.N. Jindal

Punjab and Haryana High Court
Chandigarh.