Execution of Decrees and Orders (Order XXI, Rules 1-106)

Introduction: The term “execution” has not been defined in the Code. In its widest
sense, the expression “execution” signifies the enforcement or giving effect to a judgment
or order of a Court of justice. Stated simply, “execution” means the process for enforcing
or giving effect to the judgment of the Court. In other words, execution is the
Sreenath roy enforcement of decrees and orders by the process of the Court, so as to enable the decree-
v. Radhanath holder to realise the fruits of the decree. The execution is complete when the judgment-
mookerjee 1882 creditor or decree-holder gets money or other thing awarded to him by the judgment,
decree or order. (See: Overseas Aviation Engg. (G.B.) Ltd. In re, (1962) 3 WLR 594)

In Ghan Shyam Das v. Anant Kumar Sinha, (1991) 4 SCC 379, dealing with the
provisions of the Code, relating to execution of decrees and orders, the Hon’ble Supreme
Court stated:
“So far the question of executability of a decree is concerned, the Civil Procedure
Code contains elaborate and exhaustive provisions for dealing with it in all its aspects.
The numerous rules of order XXI of the Code take care of different situations, providing
effective remedies not only to judgment-debtors and decree-holders but also to claimant
objectors as the case may be. In an exceptional case, where provisions are rendered
incapable of giving relief to an aggrieved party in adequate measure and appropriate
time, the answer is a regular suit in the civil court. The remedy under the Civil Procedure
Code is of superior judicial quality than what is generally available under other statutes,
and the Judge being entrusted exclusively with admin- istration of justice, is expected to
do better.”

In Satyawati v. Rajinder Singh & Anr., (2013) 9 SCC 491, the Hon’ble Supreme Court
held that there should not be unreasonable delay in execution of a decree because the
decree-holder is unable to enjoy the fruits of his success by getting the decree executed,
the entire effort of successful litigant would be in vain.

Scheme of Execution: Important Heads

i. Courts which may Execute Decrees
ii. Application for Execution
iii. Stay of Execution
iv. Mode of Execution
v. Arrest and Detention
vi. Attachment of Property
vii. Questions to be determined by Executing Court
viii. Adjudication of Claims
ix. Sale of Property
x. Delivery of Possession
xi. Distribution of Assets
xii. General Rules (Civil and Criminal), 2018: Provisions relating to Execution of
Decrees and Orders
xiii. Conclusion

I. Courts which may Execute Decrees

A. Section 37: Definition of Court which passed a decree
• The section enlarges the scope of the expression “court which passed a decree”
with the object of giving greater facilities to a decree-holder to realise the fruits of
the decree passed in his favour. The following courts fall within the said
expression:
• The court of first instance which actually passed the decree;
• The court of first instance in case of appellate decrees;
• Where the court of first instance has ceases to exist, the court which would
have jurisdiction to try the suit at the time of execution; and
• Where the court of first instance has ceased to have jurisdiction to execute the
decree, the court which at the time of execution would have had jurisdiction to
try the suit. (See: Ramankutty Guptan v. Avara, (1994) 2 SCC 642)
B. Section 38: Court by which decree may be executed
• A decree may be executed either by the Court which passed it, or by the Court to
which it is sent for execution.
• Where the court of first instance has ceased to exist or ceased to have jurisdiction
to execute the decree, the decree can be executed by the court which at the time of
making the execution application would have jurisdiction in the matter. (See:
Merla Ramanna v. Nallaparaju, AIR 1956 SC 87)

C. Transfer of Decree for Execution: Sections 39-42, Order XXI Rules 3-9
• Section 39 provides for the transfer of a decree by the Court which has passed it
and lays down the conditions therefor.
• As a general rule, the Court which passed the decree is primarily the court to
execute it, but such court may send the decree for execution to another court
either suo moto or on the application of the decree-holder if any of the following
grounds exist:
• The judgment-debtor actually and voluntarily resides or carries on business, or
personally works for gain, within the local limits of the jurisdiction of such
court; or
• The judgment-debtor does not have any property sufficient to satisfy the
decree within the local limits of the jurisdiction of the court which passed the
decree but has property within the local limits of the jurisdiction of such other
court; or
• The decree directs the sale or delivery of immovable property situate outside
the local limits of the jurisdiction of such other court; or
• The Court which passed the decree considers for any other reason to be
recorded in writing, that the decree should be executed by such other court.
• The provisions of section 39 are, however, not mandatory and the court has
discretion in the matter which will be judicially exercised by it. (See: Tarachand
v. Misrimal, AIR 1970 Raj 53)
• In Tarachand v. Misrimal, AIR 1970 Raj 53, the Hon’ble Rajasthan High Court
observed that:
“Sec. 39 has been enacted for the purpose that it will be more
convenient for a court which passed a decree to get it executed by a court within
the local limits of whose jurisdiction the person resides or the property is
situate in cases mentioned in cls. (a) to (c), but it does not debar a court which
passed a decree itself to execute it if the circumstances of the case so warrant or it
has the means to do so. We do not mean to say that the court which passed a
decree should itself embark upon executing the decree under all circumstances in
cases provided in cls. (a) to (c) of sec. 39(1). Normally it will send for execution
to the court within the local limits of whose jurisdiction the defendant resides
or the property is situate, but it has the jurisdiction to proceed to execute it.”

D. Execution of Foreign Decrees in India: Sections 43-44A

• A combined readings of sections 43-44A shows that Indian courts have power to
execute the decrees passed by:
• Indian courts to which the provisions of the code do not apply;
• The courts situate outside India which are established by the authority of the
Central Government;
• Revenue courts in India to which the provisions of the code do not apply; and
• Superior courts of any reciprocating territory.

E. Section 42: Powers of Executing Court

• It expressly confers upon the court executing a decree sent to it the same powers
the same powers as if it has been passed by itself. It is thus the power and duty of
the executing court to see that the defendant gives the plaintiff the very thing the
decree directs and nothing more or nothing less. (See: Jai Narain v. Kedar Nath,
AIR 1956 SC 359 at p. 363)
• Other powers were:
• Power to send the decree for execution to another Court U/s 39;
• Power to execute the decree against the legal representative of the deceased
judgment-debtor U/s 50;
 • Power to order attachment of a decree.

II. Application for Execution

A. General
• Execution is the enforcement of a decree by a judicial process which enables the
decree-holder to realise the fruits of the decree passed by a competent court in his
favour. All proceedings in execution commence with the filing of an application
for execution.
• Rules 10-25 and 105-106 of Order XXI deals with execution applications.

B. Who may apply?: Rule 10

• The following persons may file an application for execution:
• Decree-holder.
• Legal Representatives of the decree-holder, if the decree-holder is dead.
• Representative of the decree-holder.
• Any person claiming under the decree-holder.
• Transferee of the decree-holder, if the following conditions are satisfied
namely, (a) The decree must have been transferred by an assignment in
writing or by operation of law; (b) The application for execution must have
been made to the court which passed the decree; and (c) Notice and
opportunity of hearing must have been given to the transferor and the
judgment-debtor in case of assignment by transfer.
• One or more of the joint decree-holders, provided the following conditions are
satisfied namely, (a) The decree should not have imposed any condition to the
contrary; (b) The application must have been made for the execution of the
whole decree; and (c) The application must have been made for the benefit of
all the joint decree-holders.
• Any person having special interest.

C. Who cannot apply?

• A person who is neither a decree-holder nor has a right to execute a decree cannot
apply for execution of decree.
• A third party or a stranger has not right to apply for execution even if he is a
beneficiary under a compromise.
• A receiver appointed by a court may file execution application. But if he is dead,
his son cannot continue the proceedings.

D. Against whom execution may be taken out?

• Execution may be taken out against the following persons:
• Judgment-debtor.
• Legal Representatives of the judgment-debtor, if the judgment-debtor is dead.
(They shall, however, be liable to the extent of the property of the deceased
judgment-debtor which has come to their hands).
• Representative of or the person claiming under the judgment-debtor.
• Surety of the judgment-debtor.

E. Contents of Application: Rule 11

• Except in the case of a money decree, every application for execution shall be in
writing, signed and verified by the applicant or by some other person acquainted
with the facts of the case. It shall contain the necessary particulars like the number
of the suit, the names of the parties, the date of the decree, the amount of the
decree etc.

F. Form
• An application for execution shall be in Form No. 6 of Appendix E to the First
Schedule. But even if an application is not in the proper form, the defect is not
vital or material. (See: Jiwani v. Rajmata Basantika Devi, AIR 1994 SC 1286).

G. Limitation
• The period of limitation for the execution of a decree (other than a decree granting
a mandatory injunction) is 12 years from the date of the decree (Art. 136,
 Limitation Act, 1963).
• The period of limitation for the execution of a decree for mandatory injunction is
3 years from the date of the decree (Art. 133, Limitation Act, 1963).

H. Execution Application and Res Judicata

• Explanation VII to Section 11 of CPC as added by the Amendment Act of 1976
specifically provides that the provisions of res judicata will apply to execution
proceedings also.
• But before an earlier decision can operate as res judicata, the execution
application must have been heard and finally decided by the Court. (See:
Shivashankar Prasad v. Baikunth Nath, AIR 1969 SC 971).

I. Cases
• In Surendra Kumari v. Roshanlal, 2015 (3) WLN 109 (Raj.), the Hon’ble
Rajasthan High Court held that non-filing of suit under Order XXI, Rule 63 CPC
makes the order of rejection conclusive and subsequent suit is barred by principle
of constructive res judicata.
• In Ganesh Mal v. Anand Kanwar & Ors., AIR 1968 Raj. 273, a Division Bench
of the Hon’ble Rajasthan High Court has held that in case where an execution
application is pending and his legal representative presents an application to be
substituted in his place, it is, in substance, his application to the court to execute
the decree or order. The word 'application' in Clause (b), therefore, was not meant
to convey the sense of only a fresh application for execution of the decree, but it
also includes an application for continuing the pending application for execution
of the decree presented 'by the deceased decree-holder.

III. Stay of Execution

A. When Court may stay execution?: Rule 26
• This rule lays down that the executing court shall, on sufficient cause being
shown and on the judgment-debtor being furnishing security or fulfilling such
conditions, as may be imposed on him, stay execution of a decree for a reasonable
time to enable the judgment-debtor to apply to the court which has passed the
decree or to the appellate court for an order to stay execution.
• The power to stay execution of a decree by a transferee court is not similar to the
power of the court which passes a decree. A transferee court cannot invoke
inherent power to grant stay. (See: Shaukat Hussain v. Bhuneshwari Devi, AIR
1973 SC 528).
• Where the judgment-debtor applies for stay of execution, the transferee court
must obtain security from the judgment-debtor or impose such conditions as it
may think fit. The provision is thus mandatory and imperative. [See: Order XXI
Rule 26(3)]

B. Staying of Order and Quashing of Order: Distinction

• Quashing of order means that no such order had ever been passed and there is
restoration of position as it stood prior to the passing of the order. Stay of order,
however, means that the order is very much there, but its operation is stayed.
(See: Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn., AIR
1992 SC 1439).

C. Stay of Execution pending suit: Rule 29

• It provides for stay of execution pending suit between the decree-holder and the
judgment-debtor. It enacts that where a suit by the judgment-debtor is pending in
a court against the decree-holder such court may, on the judgment-debtor
furnishing security or otherwise as it thinks fit, stay execution of the decree until
the disposal of such suit.
• The underlying object of this provision is two-fold:
• To enable the judgment-debtor and the decree-holder to adjust their claims
against each other; and
• To prevent multiplicity of execution proceedings.
• For this rule to apply, there must be two simultaneous proceedings in one court:
 • A proceeding in execution of the decree at the instance of the decree-holder
against the judgment-debtor; and
• A suit at the instance of the judgment-debtor against the decree-holder. (See:
Shri Krishna Singh v. Mathura Ahir, AIR 1982 SC 686).

D. Order of Injunction and Order of Stay: Distinction

• The former is an order against a person or an individual restraining him from
doing something. The latter is a direction or an order to a court not to do
something.
• Proceedings taken in contravention of injunction order are not null and void being
without jurisdiction. Proceedings in contravention of an order of stay, on the other
hand are a nullity and of no effect whatsoever.

IV. Mode of Execution

A. General
• The Code lays down various modes of execution. After the decree-holder files an
application for execution of a decree, the executing court can enforce execution.
The substantive provision (Section 51) “merely enumerates different modes of
execution in general terms, while the conditions and limitations under which
alone the respective modes can be availed of are prescribed further by different
provisions.” (Order XXI). (See: Mahadeo Prasad v. Ram Lochan, AIR 1981 SC
416 at p. 421)

B. Modes of Executing Decrees

• Delivery of Property: Section 51(a)
• Movable Property: Section 51(a), Rule 31
Where the decree is for any specific movable property, it may be executed (I)
by seizure and delivery of property; or (ii) by detention of the judgment-
debtor; or (iii) by attachment and sale of his property; or (iv) by attachment
and detention both. It does not include money, and, therefore, a decree of
money cannot be executed under Rule 31.
• Immovable Property: Rules 35 and 36
Rules 35 and 36 correspond to Rules 95 and 96 which lay down the procedure
for delivery of possession to the auction-purchaser who has purchased the
property in an auction-sale. Where the decree is for immovable property in the
possession of the judgment-debtor or in the possession of the person bound by
the decree, it can be executed by removing such person and by delivering
possession to the decree-holder thereof.
• Attachment and Sale of Property: Section 51(b)
Section 51(b) empowers the Court to order execution of a decree by attachment
and sale or by sale without attachment of any property. The Court is competent to
attach the property if it is situated within the local limits of the jurisdiction of the
court.
• Arrest and Detention: Section 51(c)
• One of the modes of executing the decree is arrest and detention in civil prison
of the judgment-debtor. However, clause (c) should be read subject to the
proviso to Section 51.
• The proviso lays down that where the decree is for payment of money,
execution by detention in civil prison should not be ordered unless, after
giving the judgment-debtor an opportunity of showing cause why he should
not be so detained, the court for reasons to be recorded in writing is satisfied:
• that the judgment-debtor, with the object or effect of obstructing or
delaying the execution of the decree (i) is likely to abscond or leave the
local limits of the jurisdiction of the Court, or (ii) has, after the institution
of the suit in which the decree was passed, dishonestly transferred,
concealed or removed any pare of his property, or committed any other act
of bad faith in relation to his property; or
• that the judgment-debtor has, or has had since the date of the decree, the
means to pay the amount of the decree or some substantial part thereof and
refuses or neglects or has refused or neglected to pay the same, or
• that the decree is for a sum for which the judgment-debtor was bound in a
 fiduciary capacity to account.
• Appointment of Receiver: Section 51(d)
• Execution by appointment of a receiver is known as equitable execution and is
entirely at the discretion of the court. It cannot be claimed as a matter of right.
(See: Onkarlal v. V.S. Rampal, AIR 1961 Raj. 179)
• The appointment of a receiver in execution proceedings is considered to be an
exceptional remedy and a very strong case must be made out in support of it.
• In such other manner as the nature of the relief granted may require.
 IV. Delivery of property

• Execution of Decree for:

1. Payment of Money: Rule 30
a) By detention in civil prison of the judgment-debtor, or
b) By attachment and sale of his property, or
c) By both.
2. Specific Movable Property: Rule 31
a) By seizure of the movable, and
b) By delivery to the party to whom it has been adjudged, or
c) By detention in civil prison of the judgment-debtor, or
d) By attachment of his property, or
e) By both the above modes.
3. Specific Performance for Restitution of Conjugal Rights or an Injunction:
Rule 32
a) By attachment of property (in case of restitution of conjugal rights),
b) By detention in civil prison, or by attachment of property, or by both (in
case of injunction).
c) In Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307, the
Hon’ble Supreme Court held that Order XXI, Rule 32 applies to
prohibitory as well as mandatory injunction. Execution of an in junction
decree is to be made in terms of said provision since CPC provides
particular manner and mode of execution. No ther mode, hence,
permissible.
4. Immovable Property: Rule 35
a) By delivery of possession, and
b) By removing any person bound by the decree who refuses to vacate the
property.
5. Partition
a) Order XX, Rule 18 provides that where the Court passes a decree for the
partition of property or for the separate possession of a share therein, then:
1. if and in so far as the decree relates to an estate assessed to the
payment of revenue to the Government, the decree shall declare the
rights of the several parties interested in the property, but shall direct
such partition or separation to be made by the Collector, or any
gazetted subordinate of the Collector deputed by him in this behalf, in
accordance with such declaration and with the provisions of section
54;
2. if and in so far as such decree relates to any other immovable property
or to movable property, the Court may, if the partition or separation
cannot be conveniently made without further inquiry, pass a
preliminary decree declaring the right of the several parties interested
in the property and giving such further directions as may be required.
b) Order XXVI, Rule 13 provides that where a preliminary decree for
partition has been passed, the Court may, in any case not provided for by
section 54, issue a commission to such person as it thinks fit to make the
partition or separation according to the rights as declared in such decree.
c) Order XXVI, Rule 14 provides that:
 1. The Commissioner shall, after such inquiry as may be necessary,
divide the property into as many shares as may be directly by the order
under which the commission was issued, and shall allot such shares to
the parties, and may, if authorised thereto by the said order, award
sums to be paid for the purpose of equalizing the value of the shares.
2. The commissioner shall then prepare and sign a report or the
Commission (where the commission was issued to more than one
person and they cannot agree) shall prepare and sign separate reports
appointing the share of each party and distinguishing each share (if so
directed by the said order) by metes and bounds.
3. Where the Court confirms or varies the report or reports it shall pass a
decree in accordance with the same as confirmed or varied; but where
the Court sets aside the report or reports it shall either issue a new
commission or make such other order as it shall think fit.
d) In Indu Singh & Anr. v. Prem Chaudhary & Ors., 2017 0 Supreme
(Del.) 4662, the Delhi High Court observed:
“6. (i) The order passed for sale of the property in law will be treated as a
final decree because partition is taking place by ordering the sale of the
property. Such an order directing sale results in partitioning the value of
the property in terms of the sale proceeds which is received on selling of
the property i.e. by dividing the net sale proceeds as per the shares of the
parties fixed as per the preliminary decree passed. Sale of the property
will take place in execution proceedings of the final decree.
(ii) Partition in law is thus effected by two modes, one by physical
partition by metes and bounds and second by partitioning the net sale
proceeds. In this regard it bears note that as per Section 2(15) of the
Stamp Act, 1899 a final order giving effect to a partition by a civil court is
to be taken as an instrument of partition, and therefore when partition by
metes and bounds is not to be done then the order of sale thus becomes a
final order for effecting partition by partitioning the sale proceeds vide
Section 8 of the Partition Act read with Section 2(15) of the Stamp Act.”

C. Cross-decrees and Cross-claims: Rules 18-20

• Cross-decrees: Rules 18-20
• Rule 18 enacts that cross-decrees for the payment of money shall be set-off
against each other. If the amounts under two decrees are equal then both the
decrees shall satisfy each other and full satisfaction will be recorded and no
payment is required to be made by any party and no execution will be allowed
to be taken out.
• If, on the other hand, the amounts under the two decrees are unequal then fulls
satisfaction will be recorded upon the decree for the smaller amount, and the
execution will be allowed only for the balance.
• The underlying object of this rule has been explained by their Lordships of the
Privy Council in the case of Hazari Ram v. Rai Bahadur Bansidhar, AIR
1937 PC 39, in the following words:
“It is true that under Rules 18 to 20 the set-off of decrees is not a
 discretionary matter depending upon equitable considerations such as may
emerge from the circumstance that both decrees arise out of the same
transaction. Whatever they arise from, circuity of proceedings thereunder can
be avoided and should be avoided. This is the principle of the rules.”

• Cross-claims: Rules 19-20

• Rule 19 provides for a set-off in the case of cross-claims in the same decree. It
lays down that if the two sums in cross-claims under the same decree are
equal, satisfaction of each shall be entered in the decree and no execution shall
be allowed to be taken out. If the two sums are unequal, the party entitled to
the larger sum may take out execution for the balance.
• The principal object of Rule 19 is to prevent each side executing a decree in
respect of sums due under the same decree. This is a rule of procedure based
on the principle of equity that a party who is liable to pay under a decree
cannot be allowed to recover under that decree if the amount which he is
entitled to recover is smaller than the amount which he is liable to pay.

D. Legal Representative: Section 50

• Section 50 of the Code provides that-
(1) Where a judgment-debtor dies before the decree has been fully satisfied,
the holder of the decree may apply to the Court which passed it to execute the
same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be
liable only to the extent of the property of the deceased which has come to his
hands and has not been duly disposed of; and, for the purpose of ascertaining
such liability, the Court executing the decree may, of its own motion or on the
application of the decree-holder, compel such legal representative to produce
such accounts as it thinks fit.
• In V. Uthirapathi v. Ashrab Ali & Ors., AIR 1998 SC 1168, the Hon’ble
Supreme Court clarified that if the execution petition was initially filed in time,
(that is within the time limited for filing execution petition) it remains to be
pending even if the legal representatives are not brought on record within 30
days. If the decree holder dies, the petition cannot be dismissed even for
default, behind the back of his legal representatives. Again if the judgment
debtor died and the decree holder does not bring the legal representative on
record, the Court could fix reasonable time and if the legal representatives of the
judgment debtor are not brought on record within the time granted by Court, the
execution petition could be dismissed for default.
• In T. Gnanavel v. T.S. Kanagaraj & Ors., AIR 2009 SC 2367, the Hon’ble
Supreme Court held that exemption application to bring on record the legal
representatives of deceased defendant should be made before the judgment is
pronounced and not after the pronouncement of judgment.

E. Cases
• In Gurpreet Singh v. Union of India, 2008 (2) RCR (Civil) 207, the Hon'ble
Supreme Court observed in para 20 that:
 “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.”
• In Radhey Shyam Gupta v. Punjab National Bank, AIR 2009 SC 930, the
Hon’ble Supreme Court held that if the mode of recovery of the decretal amount
was prescribed by the court passing the decree then alteration of the manner of
recovery of the decretal amount by the executing court is illegal.

V. Arrest and Detention

A. General
• One of the modes of executing a decree is arrest and detention of the judgment-
debtor in a civil prison.
• Sections 55-59 and Rules 30-41 deals with arrest and detention of the judgment-
debtor in a civil prison.

B. When arrest and detention may be ordered?

• Where the decree is for payment of money.
• Where the decree is for specific performance of the contract or for injunction.
• Where the decree is against a Corporation.

C. Who cannot be arrested?: Sections 56, 58, 135, 135-A

• The following classes of persons cannot be arrested or detained in civil prison:
• A woman;
• Judicial officers, while going to, presiding in, or returning from their courts;
• The parties, their pleaders, mukhtars, revenue agents and recognized agents
and their witnesses acting in obedience to a summons, while going to,
presiding in, or returning from their courts;
• Members of Legislative Bodies;
• Any person or class of persons, whose arrest according to the State
Government, might be attended with danger or inconvenience to the public;
• A judgment-debtor, where the decretal amount does not exceed Rs. 2000.

D. Notice: Order XXI Rules 37 and 40

• Where the decree is for the payment of money and the application is made for the
 arrest and detention of the judgment-debtor, the Court shall instead of issuing a
warrant for arrest, issue a notice calling upon the judgment-debtor to appear and
show cause why he should not be committed to civil prison in execution of the
decree. The purpose of issuing notice is to afford protection to the honest debtors
incapable of paying dues for reasons beyond their control.
• The provision for issuing notice and affording opportunity to the judgment-debtor
to show cause recognizes a rule of natural justice that no person should be
condemned unheard. (See: Jolly George Varghese v. Bank of Cochin, AIR 1980
SC 470)
• The primary object of Rule 40 read with Rule 37 of Order XXI and Section 51 of
the Code is to protect honest but indigent and poor judgment-debtors, who have
no sufficient means to pay decretal dues.

E. Period of Detention: Section 58

• The period of detention of the judgment-debtor in civil prison shall be (a) up to
three months, where the decretal amount exceeds Rs. 5000 and (b) up to six
weeks, where the decretal amount exceeds Rs. 2000 but does not exceed Rs.
5000.
• Where the decretal amount does not exceed Rs. 2000 no detention can be ordered.

F. Release of Judgment Debtor: Section 58-59

• A judgment debtor may be released in the following cases.
• On the amount mentioned in the warrant being paid; or
• On the decree against him being otherwise fully satisfied; or
• On the request of the decree-holder; or
• On the omission by the decree-holder to pay the subsistence allowance (such
release, however does not discharge the judgment debtor from his debt, but he
cannot be rearrested on the same ground);
• On the ground of illness.

G. Re-arrest of Judgment-Debtor
• Normally, a judgment-debtor once released, cannot be re-arrested in the execution
of the same decree. But if a judgment-debtor is released because of the mistake of
the jail authorities, he can be re-arrested. Similarly, where the judgment-debtor
could not be sent to jail, due to non payment of the subsistence allowance by the
decree-holder, his re-arrest is not unlawful. Again, release of the judgment-debtor
on the ground of illness does not debar his arrest. The total period of actual
detention, however, cannot exceed the maximum prescribed in the Code.

VI. Attachment of Property

A. General
• A decree may also be executed on the application of the decree-holder by
attachment and sale or by sale without attachment of the property.
• Sections 60-64 and Rules 41-57 or Order XXI deals with the subject of
attachment of property.
B. Object
• The primary object of attachment of property is to give notice to the judgment-
debtor not to alienate the property to anyone as also tot he general public not to
purchase or in any other manner deal with the property of the judgment-debtor
attached in execution proceedings. (See: Hamda Ammal v. Avadiappa Pathar,
(1991) 1 SCC 715 at p. 718)

C. Property which can be attached: Section 60

• Section 60(1) declares what properties are liable to attachment and sale in
execution of a decree, and what properties are exempt therefrom.
• All saleable property (movable or immovable) belonging to the judgment-debtor
or over which or the portion of which he has a disposing power which he may
exercise for his own benefit and may be attached and sold in execution of a decree
against him. (See: Balkrishan Gupta v. Swadeshi Polytex Ltd., AIR 1985 SC
520 at p. 534)

D. Property which cannot be attached: Sections 60 and 61

• Section 60(1) declares that the properties specified therein are exempt from
attachment and sale in execution of a decree. The list enumerates certain
properties such as necessary wearing apparel, cooking vessels, bedding, tools of
artisans, implements of husbandry, houses of agriculturists, wages, salaries,
pensions and gratuities, compulsory deposits, right to future maintenance, etc. The
exemptions listed in the proviso are cumulative and the judgment-debtor may
claim the benefit of more than one clause if he is qualified to do so. (See: Radhey
Shyam v. Punjab National Bank, (2009) 1 SCC 376)

E. Precept: Section 46
• A precept is an order or direction given by the court which passed the decree to a
court which would be competent to execute the decree to attach any property
belonging to the judgment-debtor.
• The principal object of attachment by precept is to enable the decree-holder to
obtain an interim attachment of the property of the judgment-debtor situate within
the jurisdiction of another court where it is apprehended that the decree-holder
may otherwise be deprived of the fruits of the decree. It seeks to prevent
alienation of property of the judgment-debtor not located within the jurisdiction of
the court which pass the decree so that interest of the decree-holder is safeguarded
and protected.

F. Garnishee Order: Rules 46-A to 46-I

• Rules 46-A to 46-I of Order XXI , as inserted by the Code of Civil Procedure
(Amendment) Act, 1976 lay down procedure in garnishee cases.
• Garnishee proceeding is a proceeding by which the decree-holder seeks to reach
money or property of the judgment-debtor in the hands of a third party (debtor of
judgment-debtor). By this process, an executing court may order a third party to
pay to the judgment-creditor (decree-holder) the debt from him to the judgment-
debtor. The payment made by the garnishee pursuant to the order passed by the
 executing court is a valid discharge to him against his decree-holder.
• The primary object of a garnishee order is to make the debt due by the debtor of
the judgment-debtor available to the decree-holder in execution without driving
him to a suit.

G. Determination of Attachment: Rules 55-58

• Where the decretal amount is paid or the decree is otherwise satisfied;
• Where the decree is reversed, or is set aside;
• Where the court upholds objection against the attachment and makes an order
releasing the property;
• Where after the attachment the application for execution is dismissed;
• Where the attaching creditor withdraws attachment;
• Where the decree-holder fails to do what he is bound to do under the decree;
• Where the attachment is ordered before judgment and the defendant furnishes the
necessary security;
• Where there is agreement or compromise between the parties;
• Where the attaching creditor abandons the attachment.

H. Private alienation of property after attachment: Section 64

• Section 64(1) enacts that a private alienation of property after attachment is void
as against claims enforceable under the attachment. (See: Om Prakash v. Ganga
Sahai, (1987) 3 SCC 553)
• The alienation, however, is not absolutely void against all the world, but is void
against the claims enforceable under the attachment.
• The primary object of this provision is to prevent fraud on decree-holders and to
keep intact the rights of attaching creditors and of those creditors who have
obtained decrees and are entitled to satisfaction out of the assets of the judgment-
debtor.

I. Cases
• In Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma & Ors., AIR 1977
SC 1789, the Hon’ble Supreme Court observed that:
“Under Order XII Rule 64 the Executive Court derives jurisdiction to
sell properties attached only to the point at which the decree is fully satisfied.
The words "necessary to satisfy the decree" clearly indicate that no sale can
be allowed beyond the decretal amount mentioned in the sale proclamation. In
other words where the sale fetches a prior equal to or higher than the amount
mentioned in the sale proclamation and is sufficient to satisfy the decree, no
further sale should be held, and the Court should stop at that stage.”

VII. Questions to be determined by Executing Court

A. General
• Section 47 is one of the most important provisions in the Code relating to
execution. It applies only to matters arising subsequent to the passing of a decree;
and deals with objections to execution, discharge and satisfaction of a decree.
B. Object
• The underlying object of this provision is to provide cheap and expeditious
remedy for determination of certain questions in execution proceedings without
recourse to a separate suit and to prevent needless and unnecessary litigation.
(See: Gangabai Gopaldas Mohata v. Fulchand, AIR 1997 SC 1812)

C. Nature and Scope

• The scope of Section 47 is very wide. Exclusive jurisdiction has been conferred
on the executing court in respect of all matters relating to execution, discharge or
satisfaction of a decree arising between the parties or their representatives. Once
the suit is decreed , this section requires that the executing court alone should
determine all questions in execution proceedings and filing of a separate suit is
barred. (See: Desh Bandhu Gupta v. N.L. Anand, (1994) 1 SCC 131)
• The provision is not ultra vires Article 14 of the Constitution. (Ganga Bai v.
Vijay Kumar, (1974) 2 SCC 393 and Vijay Prakash v. Collector of Customs,
AIR 1988 SC 2010)

D. Conditions
• In order that this section may apply, the following conditions must be satisfied:
i. The question must be one arising between the parties to the suit in which the
decree is passed, ot their representatives and
ii. It must relate to the execution, discharge or satisfaction of the decree.
• Both the conditions must be satisfied cumulatively.

E. Powers of Executing Court

• An executing court has plenary power to determine all questions relating to
execution of a decree. (See: M.P. Shreevastava v. Veena, AIR 1967 SC 1193)
• The section, however, applies only to matters arising subsequent to the passing of
the decree.
• An executing court cannot go behind the decree. It has to execute the decree as it
is. It cannot question correctness or otherwise of the decree. (See: C.F. Angadi v.
Y.S. Hirannayya, AIR 1972 SC 239)
• Where there is inherent lack of jurisdiction on the part of the court passing the
decree, the executing court can refuse to execute the decree. (See: Kiran Singh v.
Chaman Paswan, AIR 1954 SC 340 at p. 342)

F. Appeal and Revision

• The determination of any question U/s 47 is no longer deemed to be a decree
within the meaning of Section 2(2) of the Code and is, therefor, not appealable
U/s 96 or 100 of the Code. Section 47(2) has, consequently, been omitted by the
Amendment Act of 1976.
• A revision application U/s 115 of the Code is, therefore, maintainable provided
the conditions laid down in Section 115 are satisfied.
• No writ petition, however, would be maintainable. (See: Ghan Shyam Das v.
Anant Kumar Sinha, AIR 1991 SC 2251)
G. Cases
• In Narendra Singh Bhati v. Fateh Singh Rathore, 2018 (4) RLW 3425 (Raj.),
the Hon’ble Rajasthan High Court observed that:
“Section 47 or Order XXI Rule 97 of the Code are meant or intended to
determine the real issues or the disputes between the parties. In the present case
when there has been no confusion, much less controversy between the parties,
regarding the meaning of expression, the petitioner's application dated
01.09.2018 remains wholly ill-conceived and frivolous. The executing Court has
committed no error of law in rejecting such application, vide its impugned order
dated 15.09.2018.”

• In Jugal Kishore Saraf v. M/s Raw Cotton Co. Ltd., AIR 1955 SC 376, the
Hon’ble Supreme Court oberved 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 sub-sec. (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...”

• In Arun Lal v. Union of India, AIR 2011 SC 506, the Hon’ble Supreme Court
held that no limitation is prescribed for filing objection U/s 47 CPC.

• In Brakewel Automotive Components (India) Pvt. Ltd. v. P.R. Selvam

Alagappan, (2017) 5 SCC 371, the Hon’ble Supreme Court held that:
“19. An Executing Court can neither travel behind the decree nor sit in appeal
over the same or pass any order jeopardizing the rights of the parties thereunder.
It is only in the limited cases where the decree is by a court lacking inherent
jurisdiction or is a nullity that the same is rendered non est and is thus
inexecutable. An erroneous decree cannot be equaled with one which is a nullity.
There are no intervening developments as well as to render the decree
inexecutable.
20. Section 47 of the Code mandates determination by an executing court,
questions arising between the parties or their representatives relating to the
execution, discharge or satisfaction of the decree and does not contemplate any
adjudication beyond the same. A decree of court of law being sacrosanct in
nature, the execution thereof ought not to be thwarted on mere asking and on
untenable and purported grounds having no bearing on the validity or the
executability thereof.
22. The powers of the court thereunder are quite different and much narrower
than those in appeal/revision or review. It was reiterated that the exercise of
power under Section 47 of the Code is microscopic and lies in a very narrow
inspection hole and an executing court can allow objection to the executabilty of
 the decree if it is found that the same is void ab initio and is a nullity, apart from
the ground that it is not capable of execution under the law, either because the
same was passed in ignorance of such provision of law or the law was
promulgated making a decree inexecutable after its passing.”

• In Sneh Lata Goel v. Pushp Lata Goel, AIR 2019 SC 824, the Hon’ble Supreme
Court held that Executing Court cannot question validity of decree on objection
U/s 47 CPC that the decree was passed without territorial jurisdiction. A
distinction must be made between a jurisdiction with regard to the subject-matter
of the suit and that of the territorial and pecuniary jurisdiction. Whereas in the
case falling within the former category, the judgement would be a nullity, in the
latter it would not be. (See: Mantoo Sarkar v. Oriental Insurance Company Ltd.,
(2009) 2 SCC 244)

• In Firm Swaroop Singh Sher Singh & Ors. v. Mohan Lal & Anr., (1999) 1
RLW 36, the Hon’ble Rajasthan High Court held that objections/questions about
dispute decided by executing court in between the parties shall not be treated as a
suit. The decision of executing court U/s 47 being not a decree cannot be appealed
U/s 96 CPC.

VIII. Adjudication of Claims

A. Scheme
• Where any property is attached in execution of a decree, it is always open to the
parties, their representatives or third parties to raise objection against such
attachment.
• If the objection is raised by a party or their representative, the question falls U/s
47 of the Code and should be decided by the executing court and not by a separate
suit. (See: Nancy John v. Prabhati Law, AIR 1987 SC 2061)
• If, on the other hand, such objection is raised by a third party, two courses are
open to him. Firstly, he may straightway file a suit claiming appropriate relief.
Secondly, he may file an application under Order XXI Rule 58 of the Code to the
executing court.

B. Section 47 and Order XXI Rule 58: Distinction

• Section 47 applies to parties to the suit or their representatives whereas Order
XXI Rule 58 applies to third parties or their representatives.
• Section 47 not only bars a suit but also bars an appeal whereas Order XXI Rule 58
bars a suit but not an appeal.
• Bar of suit U/s 47 is absolute and unqualified whereas bar under Order XXI Rule
58 is conditional and qualified.

C. Who may apply?

• Any person who at the time of attachment of property has some right, title or
interest in or possessed of the property attached, may lodge a claim or raise an
objection against the attachment. (See: Union of India v. Jardine Henderson
 Ltd., AIR 1979 SC 972)

D. Appeal and Revision

• An order passed by the executing court in adjudication of claims and objections
shall have the same force and is subject to the same conditions as to appeal or
otherwise as if it were a decree.
• No revision lies against such order.

IX. Sale of Property

A. General
• Sections 65-73 and Rukes 64-94 of Order XXI deals with the subject relating to
sale of movable and immovable properties.
• Rule 64 provides that any court executing a decree may order that any property
attached by it and liable to sale, or such portion thereof as may seem necessary to
satisfy the decree shall be sold, and the proceeds of such sale, or a sufficinet
portion thereof, shall be paid to the party entitled under the decree to receive the
same.
• After the property is attached and ordered to be sold by public auction, the first
step to be taken by the court is to cause a proclamation of the intended sale to be
made in the language of such court. (Rules 66-67)
• Unless the property ordered to be sold is perishable or the expense of keeping it in
custody is likely to exceed its value, no sale without the consent in writing of the
judgment-debtor can take place before 15 days in case of immovable property and
before 7 days in case of movable property from the date of proclamation in the
courthouse. (Rule 68)
• The court may, at its discretion, adjourn any sale to a specified day and hour. But
if such sale is adjourned for more than 30 days, a fresh proclamation should be
made unless the judgement-debtor waives it. [Rules 69(1), (2)]
• Every sale shall be stopped if, before the property is knocked down, the debt and
costs are tendered to the officer conducting the sale, or paid into the court. [Rule
69(3)] (See: Radhey Shyam v. Shyam Behari, AIR 1971 SC 2337)
• Any deficiency of price on re-sale necessitated by the purchaser's default shall be
recoverable from the defaulting purchaser. This provision is salutary and has been
enacted with a view to minimise the hardship of the judgment-debtor or decree-
holder resulting from the auction-purchaser's default. It aslo seeks to provide an
expeditious remedy to the aggrieved party, who has suffered due to the default of
the auction-purchaser. Therefore, if re-sale is not ordered because of the default of
the auction-purchaser, Rule 71 will not apply. (See: Gopal Krishna Das v.
Shailendra Nath, AIR 1975 SC 1290)
• A decree-holder cannot, without the express permisison of the court, purchase the
property sole in execution of his own decree. When he does so with the
perimission of the court, he is entitled to a set-off, but if he does so without such
permission, the court has a discretion to set aside the sale uopn the application by
the judgemt-debtor, or any other person whose interests are affected by the sale.
[Rules 72(1), (2), (3)] (See: Manilal Mohanlal v. Sardar Sayed Ahmed, AIR
1954 SC 349 at p. 351)
B. Sale of Movable Property: Rules 74-78
• Sale of all movable properties in execution of a decree should ordinarily be held
at some place within the jurisdiction of the court ordering such sale.
• The price of the property shall be paid at the time of sale. [Rule 77(1)]
• On payment of price, the sale becomes absolute. [Rule 77(2)]
• In case of default by the purchaser in payment of price, the property will forthwith
be re-sold and the defaulting purchaser should be liable for the defeciency in price
on such re-sale. (Rule 71)
• Rule 78 provides that a sale of movable property in execution of a decree cannot
be set aside on the ground of irregularity in publishing or conducting the sale.
(See: Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300)
• Violation of the provisions relating to the sale of movable property does not ipso
facto make the sale void. The petitioner has to show that substantial injury has
been sustained by him. (See: Seth Banarasi Dass v. Dist. Magistrate and
Collector, Meerut, AIR 1996 SC 2311)

C. Sale of Immovable Property: Rules 82-94

• Any Court other than a Court of Small Causes may order sale of immovable
property in execution of a decree. (See: Jibon Krishna v. New Beerbhum Coal
Co. Ltd., AIR 1960 SC 297)
• The Court may postpone sale to enable the judgment-debtor to raise the decretal
amount by private alienation, such as, sale, mortgage, charge, lease, etc. The chief
object of this provision is to prevent sale of property of the judgment-debtor in
cases where the decree can be satisfied by private alienation of such property.
Postponement of sale is at the discretion of the court and cannot be claimed by the
judgment-debtor as of right. (Rule 83) (See: K.T. Thomas v. Indian Bank, (1984)
Supp SCC 703)
• Immediately after the sale of immovable property, the person declared to be the
purchaser of the property must deposit 25% of the purchase money, unless, such
requirement is dispensed with by the court. The provision regarding the deposit is
mandatory and non-complaince with it will make the sale a nullity. In case of
failure on the part of the purchaser to deposit the amount, the property will
forthwith be re-sold and the defaulting purchaser will be liable for the deficiency
in price. (Rules 84-87) (See: Manilal Mohanlal v. Sardar Sayed Ahmed, AIR
1954 SC 349 at p. 351)
• Setting aside sale on deposit: Rule 89
i. Rule 89 of Order XXI provides for setting aside execution of sale on payment of
5% of purchase price to the auction-purchaser and entire amount specified in the
proclamation for sale to the decree-holder.
ii. The underlying object of this rule is to give a judgment-debtor the "last chance" of
getting the sale set aside before it is confirmed by the court. (See: Mohan
Manucha v. Manzoor Ahmed, AIR 1943 PC 29 at p. 31)
• Setting aside sale for irregularity or fraud: Rule 90
i. A sale of immovable property in execution can be set aside also on the ground of
material irregularity or fraud in publishing or conducting the sale, provided the
 applicant proves that he has sustained substantial injuruy by reason of such
irregularity or fraud. (See: Prakash Kaur v. Sandhooran, (1993) 3 SCC 312)
ii. In Siddagangaiah v. N.K. Giriraja Shetty, (2018) 7 SCC 278, the Hon’ble
Supreme Court held that if a prty had earlied filed an application under Order XXI
Rule 90 to set aside the sale but allowed it to be dismissed for default, a suit to set
aside sale even on the grounds of material irregularity, would still lie, more so, if
there had been suppression of earlier proceedings to which he was a party.
• Setting aside sale on judgment-debtor having no saleable interest: Rule 91
i. Rule 91 enables the auction-purchaser to apply for setting aside the sale on the
ground that the judgment-debtor had no saleable interest in the property. This
provision is an exception to the general rule of caveat emptor. (See: Ahmedabad
Municipal Corpn. v. Haji Abdulgafur, AIR 1971 SC 1201 at p. 1202-03)
ii. The rule is intended for the protection of an innocent auction-purchaser; and it
cannot, therefore, be invoked where the purchaser knew at the time of sale that the
judgment-debtor had no saleable interest in the property.

X. Delivery of Property
A. Resistance to delivery of possession: Rules 97-103
• Section 74 and Rules 97-103 of Order XXI deals with resistance to delivery of
possession to decree-holders or auction-purchasers.
• Where a decree-holder or an auction-purchaser of immovable property is resisted
or obstructed by any person in obtaining possession of such property, he may
make an application to the court complaining of such resistance or obstruction.
(Rule 97)
• Where any person other than the judgment-debtor is dispossessed of immovable
property by the decree-holder or auction-purchaser, he may make an application
to the court complaining of such dispossession. (Rule 99)

B. Hearing of application: Rules 105-106

• Rule 105 empowers the court to dismiss an application for default of appearance
by the applicant or to pass ex-parte order whe the opposite party doen not appear
in spite of notice to him.
• Rule 106 enables the court to set aside order passes under Rule 105, if the party
adversely affected by such order shows sufficinet cause for his non-appearance
when the application was called on for hearing.

C. Inquiry and Adjudication: Section 74, Order XXI Rules 97-101

• The Court shall on receipt of an application under Rule 97 proceed to adjudicate
upon the application in accordance with Rule 103. The court will hold a full-
fledged inquiry and determine all question including the questions relating to
right, title or interest in the property arising between the parties to the proceeding
or their representatives.
• In accordance with such determination, the court shall, either:
i. allow the application to the decree-holder or auction-purchaser directing that the
applicant be put into possession of the property; or
ii. dismiss the application; or
 iii. pass such order at it deems fit.

D. Transferee pendente lite: Rule 102

• It provides that nothing in Rules 98 and 100 shall apply to resistance or
obstruction in execution of a decree for possessio 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 passedor to the dispossession of any
such person.
• “Transfer” referr to in Rule 102 includes voluntary as well as involuntary transfer.
(See: Usha Sinha v. Dina Ram, (2008) 7 SCC 144)

E. Appeal: Rule 103

• An order passed under Rule 98 or 100 shall have the same force and be subject to
the same conditions as to appeal or otherwise as if it were a decree.
F. Cases
• In Shanti Devi and Ors. v. Chimanaram Mantri Trust and Ors., 2017 (4) RLW
2846 (Raj.), the Hon’ble Rajasthan High Court while deciding the issue that,
whether framing of issues and recording of evidence is quintessential to the
adjudication of an objection petition, in the course of execution proceedings, held
that executing Court has reached to a conclusion that neither framing of issues nor
recording of the evidence is required. This Court does not interfere in such
discretionary order.

• In Rajendra Kumar and Ors. v. Rameshchandra and Ors., AIR 2017 Raj. 169,
the Hon’ble Rajasthan High Court held that applicants cannot be deprived of their
rights to object or obstruct the execution proceedings as a result of rejection of
their impleadment applications.

• In United Finance Corporation v. M.S.M. Haneefa, AIR 2017 SC 498, the

Hon’ble Supreme Court held that Article 134 of the Limitation Act will apply to
an application filed under Order XXI Rule 95 Code of Civil Procedure by the
auction purchaser for delivery of possession of property sold in execution of a
decree. The limitation for filing an application under Order XXI Rule 95 Code of
Civil Procedure is one year from the date when the sale becomes absolute.

• In N.S.S. Narayana Sarma v. Goldstone Exports (P.) Ltd., AIR 2002 SC 251,
the Hon’ble Supreme Court held that on a fair reading of the rule it is manifest
that the legislature has enacted the provision with a view to remove, as far as
possible, technical objections to an application filed by the aggrieved party
whether he is the decree-holder or any other person in possession of the
immovable property under execution. The legislature has vested the power in the
executing court to deal with all questions arising in the matter, irrespective of
whether the court otherwise has jurisdiction to entertain a dispute of the nature.
This clear statutory mandate and the object and purpose of the provisions should
not be lost sight of by the courts seized of an execution proceeding. The court
cannot shirk its responsibility by skirting around the relevant issues arising in the
case. The position is manifest that when any person claiming title to the property
 in his possession is obstructing the attempt by the decree-holder to dispossess him
from the said property, the executing court is competent to consider all questions
raised by the persons offering obstruction against execution of the decree and to
pass an appropriate order, which under the provisions of Order 21 Rule 103 is to
be treated as a decree.

• It is incumbent on the court dealing with the applicable under Order 21 Rule 97
and 99 to first satisfy itself that the applicants can in fact maintain and bring such
a proceeding before it. Such a caveat is more explicitly sounded out by the
Hon’ble Supreme Court in its decision in H. Seshadri v. K.R. Natrajan & Anr.,
(2003) 10 SCC 449, where the Court observed that:
“14. For the purpose of considering an application under Order 21
Rules 99 and 100 CPC what was required to be considered was as to whether
the applicant herein claimed a right independent of the judgment-debtor or
not. A person claiming through or under the judgment-debtor may be
dispossessed in execution of a decree passed against the judgment-debtor but
not when he is in possession of the premises in question in his own
independent right or otherwise.”

• In Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal & Anr., (1997) AWC

1003 (SC), the Hon’ble Supreme Court observed that- “A conjoint reading of
Order XXI, Rules 97,98,99 and 101 projects the following picture:
(1) If a decree-holder is resisted or obstructed in execution of the decree
for possession with the result that the decree for possession could not be executed
in the normal manner by obtaining warrant for possession under Order XXI Rule
35, then the decree-holder has to move an application under Order XXI, Rule 97
for removal of such obstruction and after hearing the decree-holder and the
obstructionist, the Court can pass appropriate orders after adjudicating upon the
controversy between the parties as enjoined by Order XXI, Rule 97, sub-rule (2)
read with Order XXI, Rule 98. It is obvious that after such adjudication, if it is
found that the resistance or obstruction was occasioned without just cause by the
judgment-debtor or by some other person at his instigation or on his behalf, then
such obstruction or resistance would be removed as per Order XXI, Rule 98, sub-
rule (2) and the decree-holder would be permitted to be put in possession. Even
in, such an eventuality, the order passed would be treated as a decree under
Order XXI, Rule 101, and no separate suit would lie against such order meaning
thereby that only remedy would be to prefer an appeal before the appropriate
appellate Court against such decree.
(2) If for any reason, a stranger to the decree is already dispossessed of the suit
property relating to which he claims any right, title or interest before his getting
any opportunity to resist or offer obstruction on spot on account of his absence
from the place or for any other valid reason then his remedy would lie in filing an
application under Order XXI, Rule 99. C.P.C., claiming that his dispossession
was illegal and that possession deserves to be restored to him, if such an
application is allowed after adjudication, then as enjoined by Order XXI, Rule 98
sub-rule (1), C.P.C, the executing court can direct the stranger applicant under
 Order XXI, Rule 99 to be put in possession of the property or if his application is
found to be substanceless, it has to be dismissed. Such an order passed by the
executing court disposing of the application one way or the other under Order
XXI, Rule 98 sub-rule (1) would be deemed to be a decree as laid down by Order
XXI, Rule 103 and would be appealable before appropriate appellate forum. But
no separate suit would lie against such orders as clearly enjoined by Order XXI,
Rule 101.”

XI. Distribution of Assets

A. General
• Section 73 of the Code provides for rateable distribution of proceeds of execution
sale among two or more decree-holders. It provides that where the assets are held
by a court and before the receipt of such assets, several decree-holders have
applied to the court for execution of a decree for payment of money against the
same judgment-debtor and have not obtained satisfaction, the assest, after
deducting the costs of realisation, shall be rateably distributed among them.
• It allows filing of a suit for refund of assets wrongly distributed.
• The provision also confers priority of government debts over private debts.

B. Nature and Scope

• The rule enunciated in Section 73 is a rule of procedure and provides cheap,
speedy and expeditious mode of execution. It neither enlarges nor curtails
substantive rights of the decree-holder.
• In Shankar Sarup v. Mejo Mal, ILR (1901) 23 All 313 (PC), the Privy Council
observed that the court distributing the assets is acting in administrative rather
than in a judicial manner. It is merely a distributive agency and does not
adjudicate rights between the parties.

C. Object
• The provision seeks to place all decree-holders on an equal footing regardless of
priority in attachment of making of application for rateable distribution. It intends
to secure equitable dispossession of assets of the judgment-debtor among rival
decree-holders without taking recourse to separate and independent proceedings.

D. Conditions
• To entitle a decree-holder to claim a rateable distribution under this section, the
following conditions must exist:
i. The applicant for rateable distribution must have obtained a decree and applied
for execution of the decree to the appropriate court;
ii. Such application should have been made prior to the receipt of the assets by the
court;
iii. The assets of which a rateable distribution is claimed must be assets held by the
court;
iv. The attaching creditors as well as the decree-holders claiming to participate in the
assets should be holders of decree for the payment of money; and
 v. Such decrees should have been obtained against the same judgment-debtor.

E. Appeal and Revision

• The order passed U/s 73 is not appealable as a decree.
• A revision application can be filed against the said order provided the conditions
laid down U/s 115 of the Code are satisfied.

XII. General Rules (Civil and Criminal), 2018

(Provisions relating to Execution of Decrees and Orders)
• The process fee for issue of notice either under Rule 16 or Rule 22 of Order XXI
shall be paid when the application for execution is presented. After service of
notice, if the court directs execution to issue, the fee for attachment or arrest, as
the case may be, shall be paid promptly and if the judgment-debtor’s property is,
after the attachment, ordered to be sold, the necessary sale fees shall be deposited.
[Order 19 Rule 3(1)]
• When an application for execution of a decree has been disposed of and a fresh
application is made, the process fee deposited in connection with the previous
execution and not spent shall not be utilized for issue of a fresh process. [Order
19 Rule 3(2)]
• The decree or formal order shall be drawn up ordinarily within three days of the
date of judgment and shall bear that date. After the decree has been examined, it
shall be signed by the Presiding Officer and the date of such signature entered by
him immediately beneath the signature. [Order 20 Rule 73(1)]
• In execution of a decree, or award, the pay and allowances of persons to whom
the Air Force Act, 1950 (45 of 1950), or the Army Act 1950 (46 of 1950), or the
Navy Act, 1957 (62 of 1957), applies, shall not be liable to attachment or sale.
[Order 21 Rule 10(1)(a)]
• Neither the arms, clothes, equipment, accoutrements or necessaries of any person
subject to these Acts, nor any animal used by them for discharge of their duty,
shall be seized, in satisfaction of any decree or order enforceable against them.
[Order 21 Rule 10(1)(b)]
• On every sheet of an application, petition, process, notice or order in or relating to
an execution application shall bear on the left hand centre portion of each paper
(obverse side):
1. the name of a court in which the execution application was filed or to which it
was transferred;
2. the register number and the year of the execution application; and
3. the title of the execution application.
4. the CIN Number. [Order 24 Rule 2(2)]
• When any sale in execution of a decree of a Civil Court is conducted by a
Collector, a fee shall be payable by way of poundage on the full amount of the
purchase-money at 5 percent. The fee payable shall be deducted by the Collector
from the sum deposited under Order XXI Rule 84 of the Code by the purchaser,
and shall be credited to Government. (Order 29 Rule 6)
• When any sale in execution of a decree of a civil court is conducted by a Sales
Amin, the fee payable by way of poundage, on the full amount of the purchase-
 money shall be paid in stamps, which shall be affixed on the first application, if
any, filed for payment of such purchase money out of court, whether it is or is not
made by the person who obtained the order of sale, or whether it does or does not
extend to the whole of the purchase money. If no such application is filed, than
the stamps representing the fee payable shall be affixed on the office report on
which the Court has recorded its order for payment. If such an application is filed,
it shall bear the requisite stamps for the fee, in addition to such stamps, if any, as
are needed for its own validity. [Order 29 Rule 7(1)]
• Civil Court Amins besides being employed to conduct sales, may be employed on
any of the following duties:
1. In making attachment under an order of the Court.
2. In making delivery of possession of property under an order of the court.
(Order 30, Rule 16)
• When Amin has to make an attachment under an order of the Court and he
apprehends that resistance will be offered by the judgmentdebtor, he shall make a
request to the Court for requisite police help and shall mention full reasons for
fearing a breach of peace. On request being made that Court shall write to the
Superintendent of the Police for providing necessary Police assistance. In cases of
emergency, when the above procedure is not possible, application shall be made
to the Officer-in-charge of the police station concerned. (Order 30, Rule 18)

XIII. Conclusion
• It is trite to say that execution proceedings have become a long-due process by
which the parties did not get justice in time. This delay in completion of execution
proceedings are against the principles of fair trial. It is a commonplace experience
that execution does not turn out to be curtains down to litigation but with several
provisions that enable scuttling successful execution.
• The Hon’ble Supreme Court observed in Shub Karan Bubna @ Shub Karan
Prasad Bubna v. Sita Saran Bubna, (2009) 9 SCC 689, that courts are pre-occupied
with disposal of suits but take decades to dispose of execution petitions. It hoped that
Law Commission and Parliament will bestow their attention on this issue and make
appropriate recommendations/amendments so that the suit will be a continuous
process from the stage of its initiation to the stage of securing actual relief.
• The present system involving a proceeding for declaration of the right, a separate
proceeding for quantification or ascertainment of relief, and another separate
proceeding for enforcement of the decree to secure the relief, is outmoded and
unsuited for present requirements. If there is a practice of assigning separate numbers
for final decree proceedings that should be avoided. Issuing fresh notices to the
defendants at each stage should also be avoided. The Code of Civil Procedure should
provide for a continuous and seamless process from the stage of filing of suit to the
stage of getting relief.
• In money suits and other suits requiring a single decree, the process of suit should
be a continuous process consisting of the first stage relating to determination of
liability and then the second stage of execution and recovery, without any pause or
stop or need for the plaintiff to initiate a separate proceedings for execution. In suits
for partition and other suits involving declaration of the right and
ascertainment/quantification of the relief, the process of the suit should be
continuous, consisting of the first stage of determination and declaration of the right,
second stage of ascertainment/division/quantification, and the third stage of
execution to give actual relief.