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CHAPTER XXI
EXECUTION OF DECREES
General
345. Where disputes arise in the course of execution proceedings, the provision asto suits, unless inapplicable, should be followed. In such cases, issues must be framed,evidence taken and judgment written according to the law applicable to suits.
346. The law relating to the execution of decrees is to be found in section 36 to 67,73, 74 and 135 and Order XXI of the Code. The Code imposes on the Judge considerableresponsibilities in execution matters. The work of execution is carried out by the Courtthrough its agents. It is essential, according to the scheme of the Code, that the Courtshould know fully and precisely how far its decrees are satisfied. The Court has theresponsibility of preventing the sale of property in which the judgmetn debtor does notprima facie appear to have an interest; of seeing that property of a value far in excess ofthe amount of debt is not sold; of seeing that a reasonable price is realised and of securingthat intending purchasers shall have the opportunity of knowing all that it is material forthem to know concerning the property. As the sale is held by the Court, it must beconducted in a way just to all parties concerned.
Applications for execution of decrees and orders thereon
347. Except an application made immediately after a decree is passed, everyapplication for execution shall be made in writing in Form No. 6, Appendix E, and signedand verified.
348. As soon as an application for execution is presented, the date of presentationshall be endorsed thereon by the Clerk of the Court or such other Officer as may beappointed by the Court.
349. The next step is the examination of the application. This examination shouldbe particularly directed to ascertaining :
(i) Whether it is in conformity with Form No. 6 in Appendix E, Schedule I ofthe Code.
(ii) Whether it is properly signed and verified.(iii) Whether it contains the particulars about the number of the suit, names of
the parties and date of the decree.(iv) Whether it contains information as to whether an appeal has been
preferred from the decree.(v) Whether it states if any payment or adjustment of the matter in
controversy has been made between the parties subsequent to the decree.(vi) Whether it contains information about previous applications for
execution of the decree, if any.(vii) Whether it contains particulars about the dates of previous application, if
any, and their results.(viii) Whether it mentions the amount of costs, if any, awarded.(ix) Whether it gives the name of the person against whom execution of the
decree is sought.(x) Whether it mentions the mode in which the assistance of the Court is
required.
(xi) Whether the decreeholder has stated in grounds or given an affidavitstating the grounds for arrest in the application in case when he wants to arrest and todetain the judgment debtor in Civil Prison.
(xii) Whether it is filled in time.
(xiii) Whether it is accompanied by a copy of the decree.
Note : Until such time the decree is not drawn up, a certified copy of the lase paragraphof the judgment, indicating the names and addresses of all the parties to the suit, shall beconsidered sufficient for the purpose of initiating the execution of the decree.
A certified copy of the decree must, however, be produced for substitutingthe copy of the last paragraph of judgment, as soon as the decree is drawn up, (Rule 6A(2)(b) Order XX, C.P.C.)
(xiv) Whether in the case of an application for attachment of movableproperty, the application is accompanied by an annexure showing the inventory of theproperty to be attached and its description.
(xv) Whether, in the case of an application for attachment of immovable
property, it contains sufficient details of the description of the property to enable itsidentification, and specifies the share or interest of the judgmentdebtor, as required byrule 13 of Order XXI.
(xvi) Whether, in the case of an application for attachment of land assessed tothe payment of revenue to the Government, it is accompanied by a certified copy of thecurrent entry in the Record of Rights or Register of Mutations or Register to Tenancies inregard to such lands.
(xvii) Whether, where the application is by an heir of the deceased decreeholder a Succession Certificate is required.
350. The Officer examining the application for execution shall also verity thecorrectness of the particulars furnished by the applicant so far as they can be ascertainedfrom the records of the Court viz., Register of Suits, Register or applications forexecution and previous Darkhast proceedings. He should also ascertain whether any stayorder is received from the Appellate Court.
351. If the Officer examining the application (darkhast) finds that it complies withall the requirements and is correct in all respects, he should make an endorsement on theDarkhast “Examined and ordered to be registered” with the date and his signature. If hethinks that the Darkhast should be amended or corrected, he should refer the matter to theJudge for orders.
352. Where, upon examination, the application is found to be correct and in order,it should be entered in the Register of applications for execution. Two separate Registersshould be maintained, one for applications for execution of decrees in Regular Suits, andthe other for Applications for execution of decrees in Small Cause Suits.
353. Every application for execution of a decree should be placed before the Judgefor orders as soon as possible, and in no case later than five days from its presentation,without the special orders of the Judge.
As regards the Linked Courts, a clerk should be sent to the Station where theJudge sits on deputation for obtaining orders on the application for execution of decreewithin the stipulated time mentioned above. For this purpose, the Clerk of the Court orthe Nazir should not be sent but only the concerned clerk should be sent.
354. Interlineations, erasures or corrections in the application should be initialedby the party or his lawyer, and by the Officer reiving it.
355. Applications for execution of decrees are proceedings in suit and do notrequire fresh Vakalatnamas unless the engagement has been terminated by the lawyer orthe party engaging him. A memo of appearance should, however, be filed by the lawyerstating that he had filed the vakalatnama in the suit and his engagement still continues.
356. On every application for execution, which is found to be in order, the Courtshall pass an order directing the execution of the decree or the issue of a notice under rule22 or under rule 37 of Order XXI, as the case may require.
357. The returnable date given in the notice which may be issued under the aboveparagraph should be treated as the date of hearing of the application and the applicationwould be entered on the notice board accordingly.
358. When a decree is ordered to be executed and process issued, the Court shouldsee that it is executed and, if it is not executed, ascertain the reasons for its nonexecution.Certain modes of execution are described in rules 30 to 36 or Order XXI.
359. A final order should be made upon every application for execution, suchorder may also provide for costs. The final order may be, for example, the dismissal ofthe application, as provided by Order XXI, rule 57, or an order that no furtherproceedings are required or can be taken. An order that the application is struck off orthat it is consigned to the record is not a satisfactory order.
No final order should be made in any case unless the decreeholder or hislawyer is present, or has had an opportunity of appearing and applying for anadjournment or for taking further proceedings.
When a darkhast is disposed of, an endorsement should be made on the copyof the decree as to in what manner and to what extent the decree is satisfied. Theendorsement should be signed by the Judge and not by any ministerial officer of theCourt.
General Instructions for the conduct of business in execution proceedings
360. To prevent delay in executing processes, and to avoid postponement of an
attachment or sale consequent on the temporary absence of a Civil Judge or the closing ofhis Court at other times than during vacations and sanctioned holidays, the District Judgeshould direct the Civil Judge who may be appointed under section 37 of the BombayCivil Courts Act, XIV of 1869, to perform the duties of the Judge of the vacations Court,to carry on all processes for execution of decree or other proceedings in execution.
361. If the record of the proceedings in the suit is not before the Court, it mayrefuse to entertain an application for execution, unless the application is accompanied bya certified copy of the decree. (See Order XX, Rule 11(3)). But if the application is madeto a Court, to which a copy of the decree has been sent under rule 6 of Order XXI of theCivil Procedure Code, a fresh copy of the decree need not be produced with theapplication.
362. The decree holder is not entitled to receive back the copy of the decree untilthe application has been finally disposed of and the period of appeal has expired;thereafter the Court may return the copy, if it deems it fit to do so.
The copy should be filed in the proceedings and numbered as an exhibit andcosts in respect thereof should be included in the costs of the applications. If the copy isnot returned to the decreeholder, it should be kept with the proceedings and eventuallysent with them to the record room.
363. A Roznama or diary should be kept for all execution proceedings to which, sofar as applicable, the instructions in paragraph 28 of Chapter II apply.
364. (1) A Register of Applications for Execution should be kept in Form No. Igiven in the Civil Manual, 1986, Volume II. In this Register should be entered allapplications for execution including applications made in decree transferred from otherCourts for execution. It should be regularly written.
(2) Entires regarding execution should also be made in the Register of Suits.
(3) In column No. 3 of the Register of Applications for Execution thefollowing matters should be entered :
(i) the first order regarding issue of notice under Order XXI, rules 16, 22and 37.
(ii) the Orders for issue of process in execution ; and
(iii) the final order disposing of the application together with the orderregarding costs.
365. A Register of Decrees received for execution from other Courts should bekept in Form No. 1A given of this Manual, Volume II. In this register should be enteredserially and datewise all decrees received for execution from other Courts. The serialnumber of the decree in this register should be written out boldly and conspicuously onthe certificate received along with the decree and all these decree with certificates shouldbe kept i a file in their serial order until an application is made by the decree holder forexecution the decree.
366. Separate registers should be maintained for applications for the execution ofdecrees made by a Court in the exercise of its Small Cause Court jurisdiction and ofdecrees made in the exercise of its Regular jurisdiction.
367. When an application for executing a decree made in the exercise of the SmallCause Court jurisdiction is made to a Court for execution the same on its Regular Sideand the same is granted, the application should be registered in the Register ofapplications for Execution maintained on the Regular Side, Similarly, when anapplication for the execution of a decree made in the exercise of the Regular jurisdictionis made to a Court for executing the same on the Small Cause Side and the same isgranted, the application should be registered in the Register of Applications for Executionmaintained on the Small Cause Side.
Attention is invited to section 34 of the Provincial Small Cause Courts Act,1887 (Act IX of 1887). When a Court transfers for execution a decree passed in theexercise of the Small Cause Court Jurisdiction to its Regular Side and vice versa, it shallnot ordinarily be necessary to send the documents mentioned in Order XXI, rule 6 of theCode of Civil Procedure (Act V of 1908) along with the decree.
368. (i) Rule 1 of Order XXI requires that when money payable under a decree ispaid into Court, notice of such payment shall be given to the decree holder either by thejudgment debtor or at his instance by the Court, such notice issued by the court may be inForm 3 of Appendix H, Schedule I of the Code. The Court should also take such steps asit conveniently can, to prevent money due to decreeholders from remaining unpaid andlying with the Court or in the Government Treasury.
(ii) Where money due under a decree is remitted to Court by the judgment
debtor by money order or through a Bank or by other recognised mode and the judgmentdebtor or his lawyer is not available to pay the process fees for the notice required to beissued under rule 1(2) of Order XXI, the notice may be issued initially at Court's costs,but the process fees should subsequently be recovered from the judgment debtor.
369. Rule 2 of Order XXI shows that it is the intention of the Code that the Courtshould be informed of all payments and adjustments made out of Court. Bailiffs whohave executed or attempted to execute process in execution of a decree should berequired to report all payments or adjustment which come to their notice. Nazirs shouldtake special care to have this direction carried out. When a payment or adjustment comesto the notice of the Court which has not been certified by the decree holder, whetherbrought to its notice by the judgment debtor or not, it is open to the Court to ascertain thefacts from the lawyer of the decree holder, if he is represented by one, or to issue noticeto the decree holder, to show cause why he should not certify it. This notice should be inForm 1, Appendix E, Schedule I, of the Code.
370. All payments, satisfaction of adjustment whether made out of Court or not,and whether made in execution of a decree in the Court which made it or to which it issent should be entered in the Register of Suits, and also in the Register of Application forExecution if an application for execution be then pending.
371. The payment of decrctal amounts to the Court or to the decree holder bymoney order should be encouraged.
372. Where the decrctal holder has asked that the money should be sent by moneyorder or by a bank draft the Court may, after making all necessary and lawful deductionssend him the amount due
(1) by money order, if the amount does not exceed Rs. 600;(2) by rank draft by registered post acknowledgment due provided the
submits in advance duly stamped receipt for the amount due, in the form given below :
Form of Receipt
Received the sum of Rs. (Rupees no. only)by Bank Draft from the Court at being theamount deposited in the Court at inconnection with
Dated : (Stamp)(Signature of Payee.)
373. In all the Subordinate Courts, the Judges should as a general rule makepayments of decretal amounts to decree holder or their lawyers on all working days. Therule may be departed from in Caset where the District Judge considers that the localconditions make daily payments impracticable. In all such cases the District Judgeshould report the grounds of his opinion to the High Court.
374. In addition to the usual orders, endorsements and reports, each paper filed inan execution proceeding should bear an endorsement showing the number allotted to itand entered in the Roznama and the number of the application for execution. When theexecution is completed, all the papers should be placed with the Roznama so as to form acomplete case for record.
375. When process for execution, it may be signed by the Clerk of the Court orother officer of the Court appointed in that behalf (O. XXI Rule 24). The formsprescribed by the Code are in Appendix E, others will be found Volume II. In case ofdoubt as to what forms should be used, the matter should be referred to the Judge.
376. The actual execution of the process should be according to the usual practiceof the Court, unless the Judge orders an exception to be made. The issue of process forexecution and the supervision of the work of execution should be in the hands of theNazir or of such officer of the Court as is appointed in that behalf.
377. When execution of a decree is stayed by a competent Court, the applicationfor such execution should not be struck off the file, but adjourned pending the final orderof the Court staying execution.
378. The orders mentioned in paragraph 364 above as requiring to be entered incolumn 3 of the Register of application for execution and all other judicial orders whichcannot be endorsed on separate application or exhibited in the proceedings, should beendorsed on the application for execution.
These orders need not be copied in the Roznama.
Notice to the judgment debtor.
379. The law as to notice to the Judgment debtor is contained in rule 22 of OrderXXI and a form of notice is given s No. 7 of Appendix E, Schedule I, of the Code.
380. The order for the appointment of guardian ad litem for the minor legalrepresentative of a deceased judgment debtor should be made in Form No. 2 of VolumeII.
Execution by other Courts.
381. (i) The law on this subject is contained in sections 38 to 46 and rules 3 to 9 ofOrder XXI of the Code. The forms to be used are Nos. 2,3,4 and 5 of Appendix E ofSchedule I of the Code. Decreases may be sent to Courts in this country or to courts inother countries.
(ii) The documents mentioned in rule 6 of Order XXI should be sent to theforeign Court concerned while sending the decree for execution.
Execution by Indian Courts of Decrees of Courts outside India and Vice Versa
382. The execution by Indian Courts of decrees of Courts outside India and theexecution by Courts outside India of decrees of Indian Courts, is possible only if specificprovision has been made in that behalf. The ordinary rule is that the Courts of onecountry do not execute the decrees of the Courts of another and that to enforce a foreignjudgment it is necessary to bring a suit.
383. (i) Sections 43, 44 and 44A, Civil Procedure Code provide for the executionby Indian Courts of decrees passed outside India.
(ii) Section 43 provides for the execution of decrees passed by (a) CivilCourts established in such parts of India to which the Code does not extend as referred toin subsection (3) of Section 1 of the Code, and (b) Courts which have been established orcontinued by the authority of the Central Government.
(iii) Civil Courts in the State of Pondicherry would be within the purview of
clause (b) above, as those Courts have been continued by the authority of the CentralGovernment.
(iv) Section 44 provides for the execution of decrees passed by RevenueCourts in places to which the Code does not extend.
In exercise of the powers conferred by that section, the Government ofBombay have declared by Notification No. 8109/5/11B, dated 4th February 1954, thatthe decrees of Revenue Courts situate in the territories specified below may be executedin the State of Bombay as if they had been passed by the Courts in the State of Bombay :
(1) The Tribal areas in the State of Assam ;(2) The scheduled areas in the State of Madras ;(3) The State of Jammu and Kashmir ;(4) The State of Manipur.
384. Section 44A applies to decrees of superior Courts of the reciprocatingterritories. The following countries or territories specified in column 1 of the Scheduleappended hereto have been declared to be the reciprocating territories for the execution ofdecrees of the superior Courts specified in column 2 of the said schedule :
Schedule
Country Courts Government Authority
1. Unitedkingdom
(1) House of Lords(2) The Court of Appeal(3) High Court of England(4) The Court of Session inScotland.(5) High Court in NorthernIreland.(6) The Court of Chancery of theCounrty Palatine of Lancaster.(7) The Court of Chancery of theCountry Palatine of Durham.
Government Notification.Ministry of Law, No S.R.O. 399dated 1st March 1953, as amendedby G.S.R. 201, dated 13th March1958.
Country Courts Government Authority
2. Aden The Supreme Court Government Notification,Ministry of Law, No S.R.O. 183dated 18th January 1956.
3. Fiji Supreme Court Government Notification,Ministry of Law, No S.R.O. 1959dated 22nd March 1954.
4. Republic ofSingapore
High Court Government Notification,Ministry of Law, No F12 (4)/ 68J dated 17th June 1968.
5. Federation ofMalaya
1. High Court.2. Courts of Appeal
Government Notification,Ministry of Law, No S.R.O. 4,dated 3156.
6. Sikkim 1. The High Court of Sikkim inexercise of its Civil Jurisdiction.2. Any other Civil Court inSikkim whose jurisdiction is notsubject to any pecuniary limitprovided that the judgment orthe decree sought to be executedis sealed with a seal showingthat the jurisdiction of the courtis subject to no pecuniary limit.
Government Notification,Ministry of Law, No G.S.R. 704,dated 3.5.1967.Note In force for a period of 5years with effect from the 3rd May1967.
7. Trinidad andTabago
1. Supreme Court of Judicature(a) High Court ;(b) Court of Appeal.2. Industrial Court; and3. Income Tax Appeal Board.
Government Notification,Ministry of Law, No F12 (3)/ 68J dated 31th July 1968.Note In force with effective from1st September 1968.
8. Newzealand,the Cook Island(Inluding Niue)and the TrustTerritory ofWestern Samoa.
The Supreme Court ofNewzealand.
Government Notification,Ministry of Law, No S.R.O. 3282dated 15th October 1957.
Country Courts Government Authority
9. Hong Kong 1. Supreme Court2. Victoria District Court3. Kowloon District Court4. Faniling District Court
Government Notification,Ministry of Law, No G.S.R. 2096,dated 18th November 1968.
10. Papua andNew Guinea
Supreme Court. Government Notification,Ministry of Law, No G.S.R. 1720,dated 26th September 1970.
385. The Reciprocal Enforcement of Judgments (India) Order, 1958, issued by theGovernment of the United Kingdom, which revokes and replaces with certainmodifications the Reciprocal Enforcement of Judgments (India) Order, 1953, provides forthe execution in the United Kingdom of the decrees of the following Courts of theterritories mentioned in the Schedule :
(a) The Supreme Court ;(b) All High Courts and Judicial Commissioner's Courts ;(c) All District Courts ;(d) All other Courts whose civil jurisdiction is subject to no pecuniary limit
provided that the judgment sought to be registered under the United Kingdom ForeignJudgment's (Reciprocal Enforcement Act, 1933), is sealed with a Seal showing that thejurisdiction of the Courts is subject to no pecuniary limit.
Schedule (territories)
(1) The States of Andhra Pradesh (excepting the scheduled areas), Assam(except the Tribal areas), Bihar, Maharashtra, Kerala, Madhya Pradesh, Madras, Mysore,Orissa, Punjab, Rajasthan, Uttar Pradesh and West Bengal.
(2) The Union territories of Delhi, Himachal Pradesh, Tripura, Manipur andAndaman and Nicobar Islands.
386. Section 45 empowers a Court in any State to send a decree for execution toany court established by the authority of the Central Government outside India to whichthe State Government has by notification declared this section to apply.
387. The Court which originally passed the decree should not, save for special
reasons, after transmission of such decree to another Court for execution, itself grantexecution without obtaining a certificate of nonsatisfaction from the Court to which suchdecree was transmitted. After the grant of such certificate, the Court to which the decreewas transmitted should refuse any further application for execution.
Giving possession of immovable property.
388. (i) Rules 35 and 36 of Order XXI deal with the delivery of possession ofimmovable property and distinguish between delivering possession of property which isin possession of a person bound by the decree and of that which is not. The action to betaken by the Court in the two classes of cases is entirely different. Therefore, beforetaking action, the Court should ascertain from the decree holder whether he alleges theproperty to be in the actual possession, that is, in the occupation of a person bound by thedecree. The Court should not issue process under rule 35 or 36 of Order XXI on a bareapplication to be placed in possession. The decree holder must be called upon to statespecifically in his application the kind of possession which he wants.
(ii) In giving possession of immovable property, Form No. 11 in Appendix Eof Schedule I may be used for authorising the Officer of the Court to give actualpossession or with suitable modifications for affixing a copy thereof according to subrule (2) of rule 35 or rule 36 of Order XXI.
389. When any building or enclosure of which possession is to be given inexecution is found locked, a notice should ordinarily be given to any person bound by thedecree who is in possession of such building or enclosure requiring him to unlock itwithin a given time. If on the day so appointed it is still locked, it may be broken openand given into the possession of the decree holder or purchaser, by following theprocedure laid down in sub rule (3) of rule 35 of Order XXI. 390. If at the time of putting the decree holder or purchaser in possession ofthe house of judgment debtor, there is any movable property therein, and the judgmentdebtor is either absent at the time or unwilling to take such property in his custody or theowner of such movable property is not known, the bailiff or officer concerned shouldremove the property to the Court after making a proper inventory thereof, in the presenceof respectable witnesses.
Stay of execution
391. (i) The law on this point is given in rules 26 to 29 of Order XXI and rules 5 to
8 of Order XLI. Usually stay of execution is allowed only when appropriate security isfurnished by the Judgment debtor. But the proviso to Rule 29 of Order XXI enables theCourt to grant stay without requiring security in case of decrees for payment of moneyonly after recording its reasons for so doing. The forms given in the Code for securitybonds are Nos. 2 to 4 of Schedule I, Appendix G of the Code. The fact that the onlyforms of security bonds given in the Code are forms Nos. 2,3 and 4 in Appendix G ofSchedule I for the Code, would not justify a mortgage security being taken in every case.The Judge should exercise a discretion as to the nature of the security to be furnished, andif he, in the exercise of that discretion, does not consider that security of the nature forwhich forms Nos. 2,3 and 4 of Appendix G of Schedule I of the Code are appropriateshould be furnished, he may require security of any other kind to be furnished and forsecurity of this nature forms Nos. 3 and 4 of Volume II and the form of Volume IIshould be used. In proper cases, the security required should take the form of moneydeposited in Court.
(ii) Form No. 5 given in Volume II is for use as a notice to show causeagainst stay of execution ; for execution should not as a rule, be stayed without giving theother party an opportunity of showing cause against the stay. An exception to this generalrule is provided for in sub rule (4) of rule 5 of Order XLI. Where an order for stay ofexecution is granted exparte under this provision, the stay should only be for a limitedtime and notice should be immediately issued to the other party.
(iii) Form No. 13 of Appendix H, Schedule I, of the Code is a notice to thesurety to show cause why the bond should not be enforced. His liability is provided for asection 145 of the Code.
(iv) Form No. 6 at page 144 of Volume II is for use when security is takenunder sub rule (3) of rule 26 of Order XXI for stay of execution by a Court to which thedecree sought to be executed is transferred.
(v) Where the High Court makes a stay order to take effect upon the applicant furnishing security to the satisfaction of the lower Court, it is the duty of the Courtconcerned to take the required security, whether or not an application for the execution ofthe decree under appeal has been filed.
(vi) The Officer of the Court entrusted with duty of taking security bondsfrom sureties or parties should take sufficient care to see that the security bonds areproperly worded.
All Judges should impress upon the officers of their Courts that it is theirduty to see that such security bonds should be worded in conformity with the Formprescribed by the Code of Civil Procedure, V of 1908, and the Manual.
In this connection, the attention of Courts is invited to
(1) the provisions of Order XLI, rule 5, Code of Civil Procedure, V of 1908.(2) Form No. 2 of Appendix G of the same Code.(3) Form No. 3 of Volume II of this Manual.
392. A Civil Judge executing an appellate decree of the District court is notempowered to grant stay of execution upon application by the Judgment debtor pendingorders to be obtained by him upon a second appeal made to the High Court.
Arrest and detention of Judgmentdebtor
393. The law on this subject is to be found in section 55 to 59 of the Code andrules 37 to 40 of Order XXI. It is necessary to bear in mind that in cases where in thetotal amount of decree does not exceed Rs. 500/. order for detention cannot be made; andin other cases, the period of detention is regulated by the provision of section 58 (i)(a)(b)of C.P.C. It is important to notice that it is the duty of the Court to inform a judgmentdebtor arrested in execution of a money decree that he may apply to be declared aninsolvent (section 55, Clause 3). Form for use in proceedings for the arrest of ajudgmentdebtor are given as Nos. 12 to 15 of Appendix E, Schedule I of the Code.
394. Whenever a public Officer is to be arrested under a warrant, he should begiven an opportunity of communicating his arrest to his superior.
395. The following rules have been made under the old Code and are in force andneed not therefore be made again under section 55, clause (2) of the Code :
(i) If, at the moment of proposed arrest of any person under civil process, heis engaged in the performance of public duties, his withdrawal from which would beattended with danger or manifest public inconvenience, the arresting Officer should firstacquaint the immediate superior of the employee about to the arrested or the person whohas authority to find a substitute a perform the duties of such employee, and if necessary,should defer arrest until such employee is relieved by another. A similar course should
be pursued with regard to persons filling offices connected with the preservation of thepeace. The expenses should be paid by the decree holder and added to the sum levied inexecution.
(ii) Whenever a Court has occasion to issue a warrant for the arrest of anyperson in the employment of a Railway Administration, the Court shall enter in thewarrant a direction to the bailiff or process server to whom it is entrusted for executionrequiring him before making the arrest, if the person to be arrested is on duty, to acquainta superior official of such person with the fact that the arrest is about to be made.
(iii) With reference to a person in the employment of a RailwayAdministration, the words “official Superior” shall be deemed to include a railwayofficial of the rank of Station Master, Foreman, or Inspector, but not one of lower rank.
396. Before a Warrant is issued by a Civil Court for the arrest of an employee ofthe Telegraph Department, notice shall be given to the Superior Officer designated incolumn 2 of the subjoined list for the period specified in column 3 of the list :
Division to which theemployee belongs
Superior officer to be advised Period of notice
Bombay Superintendent of Bombay Division, Bombay 7 days
Nagpur Superintendent of Nagpur Division 7 days
Bombay Office Superintendent in charge Bombay Office,Bombay
3 days
397. The following scales of subsistence allowance for judgment debtor have beenfixed under section 57 of the Code of Civil Procedure, 1908 in supersession of all rules ororders relating to subsistence allowance of Judgment debtors in force in any part of theState including the orders contained in Government Notification, Law and JudiciaryDepartment, No. CPC 1175/739, dated the 27th May 1976.
Superior Class daily rate Ordinary Class daily rate
Greater Bombay and theCities of Pune, Nagpur,Nasik, Aurangabad,Kolhapur, Jalgaon, Solapurand Thane. 25 22
Other places in the State 20 18
Note : The above amendments shall come into force on the date ofpublication in the Official Gazetee.
For the purpose of subsistence allowance under this Paragraph, Judgmentdebtors according to their social status, education and mode of living shall be divided intothe following classes namely :
1. The Superior Class, and 2. The Ordinary Class.
398. When a person arrested in execution of a decree and brought before the Courtis released without being sent to the Civil Jail (in consequence of payment or somecompromise having been entered between him and the opposite party), the money paidinto Court for his subsistence and unexpended, should be returned to the party paying it.Section 16 of the Civil Jails Act, II of 1874 (Bombay Act II of 1874), applies only tocases in which debtor has actually been an inmate of the Civil Jail.
399. Arrest and detention of the judgment debtor in prison is one of the modes inwhich the assistance of the Court may be required for execution of a decree. Theattention of the Courts is drawn in this respect particularly to the provisions of sections51 and 55 to 59 and rules 37 and 40, Order XXI, (as amended under the Rules framed bythe High Court under Section 122, C.P.C.)
Before the Court can issue a warrant of arrest or a notice to the judgmentdebtor under Order XXI, rule 37, it has to satisfy itself that the total amount of the decreeunder the execution exceeds Rs. 500 and that the judgment debtor is liable to arrest inpursuance of the application. When the execution of a decree for the payment of moneyis sought by arrest of detention of the judgment debtor, the Court must issue a notice tothe judgment debtor calling upon him to show cause shy he should not be committed to
the Civil Prison in execution of the decree unless the Court is satisfied that the judgmentdebtor is likely to abscond or leave the local limits with the object of delaying execution.Where, however, the judgment debtor does not appear in obedience to the notice, theCourt shall, if the decree holder so requires, issue a warrant of arrest.
Forms of notice and warrant of arrest are Nos. 12 and 13, respectively ofAppendix E.
SCHEDULE I
Before arrest is ordered, provision for the debtor's subsistence should bemade, as required by rule 39 of Order XXI. What is required to be done when thejudgment debtor is before the Court, is laid down in rule 40, Order XXI, as amendedunder the Rules framed by the High Court under Section 122 , C.P.C. After holdingnecessary enquiry under the aforesaid rule 40 of Order XXI, if the Court is inclined todetain the judgment debtor in the Civil prison, it is necessary to bear in mind that the totalamount of decree under execution must exceed Rs. 500 and that the period of detentionshould be regulated according to the provision of Section 58(1)(a)(b) C.P.C.
400. Members of the Parliament and State Legislature enjoy the privilege offreedom from arrest during the continuance of the Session of the House of which they aremembers and 40 days before the commencement and after its conclusion.
401. No arrest of a Member of the House of Parliament or of the State Legislatureshall be made within the precincts of the House without obtaining the permission of thePresiding Officer.
To enable the Presiding Officer to decide whether he should grant or with oldpermission for arrest, within the precincts of the House, the Court concerned, whenmaking a request for such an arrest, should attach a letter of request to the warrantcontaining a concise statement setting out the grounds for the request and explaining whyit is desirable that the arrest be made within the precincts of the House and why thematter cannot wait till the House adjourns for the day.
Arrest for debt, attachment of pay and allowances and priority in disposal of litigation involving persons belonging to the Armed Forces.
402. The following Government of India Memorandum accompanyingGovernment of India, letter, Ministry of Home Affairs, No. 5051, Judicial, dated the 17thJanuary 1954, regarding the legal position of persons belonging to the Armed Forces inthe matter of arrest for debt, attachment of their pay and allowances and priority indisposal of litigation involving them, is reproduced for the guidance of subordinateCourts :
(1) Cases have occurred where civil courts have issued orders attaching thepay and allowances of persons belonging to the Armed Forces. There have also beencases of delay by courts in the hearing and final disposal of cases involving such persons.The intention of this memorandum is to state in simple terms the existing provision inregard to exemption from arrest for debt and attachment of pay and allowances and otherproperty of persons belonging to the Armed Forces and the priority to be given by civilCourts for the hearing and final disposal of any suits or other proceedings in which theymay be involved.
(2) The privileges granted to such persons by the Army and Air Force Acts,1950 (Acts XLVI and XLV of 1950 respectively) are detailed below. These rights andprivileges are in addition to any other rights and privileges conferred by any other law forthe time being in force.
(3)(a) Immunity from attachment, Under section 28 of the Army/Air ForceAct, no arms, clothes, equipment, accoutrement's or necessaries of any person subject toeither of these Acts nor any animal used by him for the discharge of his duties can beseized, nor can his pay and allowances or any part thereof be attached by direction of anycivil or revenue court, or any revenue Officer in satisfaction of any decree or orderenforceable against him.
(b) Immunity from arrest for debt Section 29 of the Army/Air Force Actprovides that no person subject to either of these Acts, so long as he belongs to theArmed Forces, can be arrested for debt under any process issued by or by the authority ofa Civil or revenue Court or a revenue Officer. Where in spite of the above, any sucharrest is made, the Court or the revenue Officer concerned, on receipt of a complaint bysuch person or by his superior Officer to that effect, may discharge him and awardreasonable costs to the complainant. The costs may be recovered in like manner as ifthey were awarded to him by a decree against the person obtaining the process. No Courtfees are payable for the recovery of such costs.
(c) Immunity of persons attending Court martial from arrest : Undersection 30 of the Army/Air Force Act, no presiding officer or member of a Court martial,no Judge, Advocate, no party to any proceedings before a Court martial, or his legalpractitioner or agent, and no witness acting in obedience to a summons to attend a Courtmartial, while proceeding to, attending or returning from a court martial is liable to asarrested under civil or revenue process. If any such person is arrested under any suchprocess, he may be discharged by order of the Court martial.
(d) Priority in respect of Army/Air Force personnel's litigation Undersection 32 of the Army/Air Force Act, on the presentation to any Court by or on behalfany person subject to either of these Acts of a certificate, from the proper military/airforce authority, of leave of absence having been granted to or applied for by him for thepurpose of prosecuting or defending any suit or other proceeding in such Court, the Courtshall, on the application of such person, arrange, so far as may be possible for the hearingand final disposal of such suit or other proceedings within the period of the leave sogranted or applied for. The certificate from the proper military/air force authority shallstate the first and the last day of the leave or intended leave, and set forth a description ofthe case with respect to which the leave was granted or applied for. No fee is payable tothe Court in respect of the presentation of any such certificate, or of any application by oron behalf of any such person, for priority for the hearing of his case. Where the Court isunable to arrange for the hearing and final disposal of the suit or other proceeding withinthe period of such leave or intended leave as aforesaid, it shall record its reasons for itsinability to do so, and shall cause a copy thereof to be furnished to such person on hisapplication without any payment whatever by him in respect either of the application forsuch copy or of the copy itself. If in any case a question arises as to the propermilitary/air force authority qualified to grant such certificate as aforesaid, the Court shallrefer the question at once through the authority granting the certificate to
(i) an Officer having power not less than a Brigade or equivalentCommander in the case of military personnel ;
(ii) an Officer having power not less than a Group Commander orequivalent Commander in respect of air force personnel. The decision of the Officer soreferred to shall be final.
(4) Persons subject to the Army and Air Force Acts who are entitled to theprivileges mentioned above are detailed in sections 2 and 31 of those Acts, They are
(a) Officers, junior commissioned officers and warrant officers of the
Regular Army and officers and warrant officers of the Air Force ;
(b) Persons enrolled under the Army or the Air Force Acts ;
(c) Persons belonging to the Indian Reserve Force or Air Force Reservewhen called out for, or engaged in, or returning from training or service;
(d) Persons belonging to the Indian Supplementary Reserve Forces whencalled out for service or when carrying out the annual test ;
(e) Officers of the Territorial Army when doing duty as such officers;
(f) enrolled persons of the Territorial Army when called out or embodiedor attached to any regular forces;
(g) persons holding commissions in the Army in India Reserve ofOfficers and Officers appointed to the Regular Reserve of Officers when ordered on anyduty or service for which they are liable as such members;
(h) persons belonging to the Indian Air Force Volunteer Reserve in thecircumstances specified in section 3 of the Indian Air Force Volunteer Reserve(Discipline) Act, 1939 (XXXVI of 1939);
(i) persons not otherwise subject to military/air force law, who, on activeservice, in camp, on the march at any frontier post specified by the Central Governmentare employed by, or are in the service of, or are followers of, or accompany any portionof the Regular Army/Air Force.
Note : The provisions of paragraph 402 shall apply mutatis mutandis to the cases ofpersonnel of the Navy also in view of the provisions of sections 20 to 26 of the Navy Act,1957, Persons governed by the Navy Act are stated in section 2 of the said Act.
Attachment of Property
403. (a) The law on this subject is contained in sections 60 to 64 of the Codeand rules 41 to 57 of Order XXI, Section 60 mentions the property which is liable to beattached, and the property not so liable. Rule 50 of Order XXI states the law in respect ofa decree against a firm.
(b) The following extract from the Government of India, HomeDepartment, Notification No. 186/37 Judicial, dated the 2nd October 1940, as amendedfrom time to time and as amended last by Government of India, Ministry of HomeAffairs, Notification No. 54/1/63Ests(A) dated the 20th January 1965, is reproduced forthe guidance of the Courts :
In pursuance of clause (1) of the proviso to subsection (1) of Section 60 ofthe Code of Civil Procedure 1908 (Act V of 1908) the Central Government is pleased todeclare that the following allowances payable to any public officer in the service of thesaid Government or any servant of a federal Railway or of a cantonment authority or ofthe port authority of a major port, shall be exempt from attachment by order of a Court,namely :
(1) All kinds of travelling allowances.(2) All kinds of conveyance allowances.(3) All allowances granted for meeting the cost of
(a) Uniforms and (b) rations.(4) All allowances granted as compensation for higher cost of living in
localities considered by Government to be expensive localities including hill stations.(5) All houserent allowances.(6) All allowances granted to provide relief against the increased cost of
living.(7) a foreign allowance or, in the case of heads of diplomatic missions from is
de representation, assigned to officers serving in post abroad.(8) Children's Education Allowance (Whether described as such or as
children's educational assistance or in any other manner).
(c) The following Notification No. CPC 1068/3261H dated the 14th August1970, issued by the Government of Maharashtra, Law and Judiciary Department, isreproduced for the guidance of the Courts,
In exercise of the powers conferred by clause (1) of the proviso to subsection(1) of section 60 of the Code of Civil Procedure, 1908, (V of 1908), and in supersessionof the Government of Bombay Notification, Home Department, No. 9657/4, dated the 5thDecember 1945, the Government of Central Provinces and Berar Notification, JudicialDepartment, No. 176/546/XIX45, dated the 28th January 1947, and any otherNotification issued by the State Government in this behalf and in force in any part of the
State of Maharashtra, the Government of Maharashtra hereby declares that the followingallowances forming part of the emoluments of any servant of the Government ofMaharashtra shall be exempt from attachment in execution of a decree, namely :
(1) All kinds of traveling allowances. (2) All houserent allowances.(3) All kinds of compensatory allowances.(4) All allowances granted as compensation for higher cost of living in
localities considered by State Government to be expensive localities including hillstations.
(5) All allowances granted for meeting the cost of (a) Uniforms and (b) rations.
(6) All allowances granted to provide relief against the increased cost ofliving.
(7) Portion of dearness allowance treated as dearness pay for the purpose ofpension and gratuity.
(8) a foreign allowance or, in the case of heads of diplomatic missions fraisde representation, assigned to officers serving in post abroad.
(9) Children's Education Allowance.
404. Attention is invited to rules 46A to 46K of Order XXI, Civil ProcedureCode, as amended by the High Court under section 122 of the Code of Civil ProcedureCode, 1908, which lay down the special procedure to be followed for investigation anddetermination of the liability of the garnishee in execution proceedings in which debtshave been attached.
405. The Notice issued under Order XXI, rule 52 of the Code of Civil Procedurefor attachment of money or other property lying in the custody of the Court should not beserved on the Nazir but on the Court.
406. Attachment may be made either by seizure; or by order prohibiting the debtoror other person from dealing with the property except in a particular way; or by ordercharging the debtor's interest in the partnership property and profiles with payment of thedecretal amount and appointing a receiver. After it is attached property cannot lawfullybe dealt with in such a way as to affect claims enforceable under the attachment.
407. Before ordering attachment, the Judge should satisfy himself that the
judgment debtor has an attachable interest in the property. The Code provides that whenthe decree is for the payment of money the decree holder may apply for an order thatcertain persons be orally examined as to the means the judgment debtor has of satisfyingthe decree (Order XXI, rule 41). A form of notice for the purpose is given make such aninquiry. But where any party to an execution proceeding is at a disadvantage owing toignorance, poverty, want of proper legal advice or other cause, it is the duty of Judge, asfar as possible, to prevent injustice being done as a consequence of that disadvantage.
408. The next thing to ascertain is how the attachment is to be made by seizure orin some other way. For this purpose, the Court may require the decree holder to state themode in which its assistance is required (Order XXI, rule 11).
409. What may be attached by seizure is described in rules 45 and 51 of OrderXXI and other modes of attachment are described in rules 44 to 49 and 52 to 54, Rule 49gives an instance of a case in which a receiver may be appointed. The appropriate formswill be found as Nos. 8,9 and 16 to 26 in Appendix E. If attachment is to be made byanother Court, form No.2 of Appendix E, Schedule I, may be used.
410. A warrant for attachment is usually addressed to the bailiff of the Court (Seee.g. Forms 8,9 and 20 of Appendix E). This does not, however imply that it mustnecessarily be addressed and given for execution to a bailiff. The expression used in rule43 of Order XXI is “attaching officer” and rule 3 of Order XLVIII allows such variationsin the forms as the circumstances of each case require. Therefore, it is open to the Courtto direct a clerk or the Nazir and not merely a bailiff to make an attachment.
411. Both the Central and the State Governments have issued notifications inpursuance of Order XXI, rule 48, sub rule (1) appointing officers to receive notices oforders attaching the salaries or allowances of public Officers.
412. Rule 25 of Order XXI prescribes the manner in which an officer entrustedwith the process for execution is to make a return. The report whether the process hasbeen executed or not should be complete. It should show amongst other things whetherthere has been any payment, satisfaction or adjustment of the decretal debt and if so theamount or the nature thereof. The Nazir of the Court or other officer entrusted with thisduty should scrutinize the report and papers submitted by the attaching officer and satisfyhimself as to all matters needing elucidation. If the officer is unable to execute theprocess, the Court or the Nazir empowered by the Court is bound to examine him and, ifnecessary, any witness or witnesses and to record the result. All information ascertained
as to the payment, satisfaction or adjustment of the decree whether in or out of Courtshould be recorded or noted both in the Register of Suits and in the Register ofApplications for Execution. (See paragraphs 368, 369 and 370).
413. A bailiff attaching movable property under rule 43 of Order XXI shouldfurnish to the judgment debtor or other person, from whose possession the movableproperty is attached, a receipt signed by him and setting out each item attached.
414. When the officer executing a warrant of attachment issued by a Civil Courtfinds that the property to be attached by him is already under attachment by the Revenueauthorities, he should refrain from actually attaching the property and should report to theNazir. But, in order to satisfy the attaching officer and the Court that there is a bona fideattachment by the Revenue authorities, the Patil of the village should be required to givecertificate to that effect which should state the amount of the Government demand. Theattaching officer should at the request of the Patil (to be noted on the certificate) wait fornot more than twenty four hours to enable the Patil to get the certificate written.
415. The following rules previously made under section 269 of the old Code arestill in force so far as they are consistent with the present Code (Section 157) :
(i) All live stock and other movable property attached under section 269 ofthe Code of Civil Procedure shall ordinarily be removed and conveyed by the attachingofficer, or by his subordinates or by persons specially engaged by him, for the purpose, tothe Court premises or other appointed place, and there kept under due custody till sold orotherwise disposed of according to law.
(ii) In cases where it is found more convenient so to do, the property maybe handed over to the judgment creditor under proper security, for removal andconveyance to the Court premises, or other appointed place, for the purpose specified inrule (i).
(iii) When the property is of such a nature that, in the opinion of theattaching officer, or his subordinate, its removal to the Court premises or other appointedplace, is impracticable, or can only be effected as a cost out of proportion to its value, theattaching officer shall report his opinion to the Court and, pending receipt of the order ofthe Court, shall arrange for its proper maintenance, guarding and custody at the place atwhich it has been attached.
(iv) The Court, on receipt of such a report as is mentioned in rule (iii),may either order the removal of the property to the Court premises, or other appointedplace, or sanction its detention at the place at which it has been attached or elsewhereunder such provisions as to its maintenance, guarding and custody as it thinks fit.
(v) Before making any order for the attachment or livestock, or othermovable property, or at any time after any such order has been passed, the Court mayrequire the person, at whose instance the order of attachment is sought, or has been made,to deposit in the Court such sum of money as the Court may consider necessary :
(a) for the removal of the property to the Court premises, or otherappointed place, and its maintenance guarding and custody till arrival thereat ;
(b) or the maintenance, guarding and custody of the property at theCourt premises or other appointed place, till it is sold or otherwise disposed of;
(c) for the maintenance, guarding and custody of property, at the placeat which it was attached, or elsewhere.
In case of the failure to deposit such sum within the time required by theCourt, the Court may either refuse to issue, or may cancel, the order of attachment as thecase may be.
(vi) An account of the expenses actually incurred shall, on demand beingmade on or before the date of the sale, be furnished to the attaching creditor and to theperson whose property was attached, and that amount that the Court, after hearing theirobjections to the account, if any, made within three days after furnishing the same, findsto be properly due, shall be deducted as a first charge from the proceeds of the sale of theproperty and paid to the attaching creditor along with any balance that there may be ofthe deposit.
(vii) If, in consequence of the cancellation of the order of attachment, orfor any other reason, the person whose property has been attached becomes entitled toreceive back the live stock, or other property attached, it shall be given to him onpayment of all charges found by the Court to have been properly incurred which have notbeen defrayed, or for the defrayal of which no money has been deposited by the attachingcreditor and in default of his paying the same within the time prescribed by the Court, theproperty or so much thereof as may be necessary, shall be sold by auction, and after
defraying the above mentioned charges and the expenses of the sale, the balance of thesale proceeds and of the property shall be delivered to him.
416. Civil Judges may refuse to attach cattle if the attaching creditor does not payor arrange for sufficient amount for the proper custody and sustenance of the cattlebetween the period of attachment and sale.
417. The mode of attachment of immovable property is described in rule 54 ofOrder XXI, and the Form No. 24 of Appendix E. The enquiries essential before such anorder is made have been described.
418. Rule 55 of Order XXI provides that where immovable property has beenattached, the withdrawal may be proclaimed at the judgment debtor's expenses. This isthe only express provision as to notifying withdrawal of attachment but such withdrawalmay be notified by appropriate notice at the cost of the Judgment debtor in other casesalso. For example, the Judgmentdebtor might wish to have notice sent of withdrawal ofan attachment made under rule 46 or rule 48 or rule 53 of Order XXI. The formprescribed for proclamation notifying withdrawal of attachment is Form No. 8 given atpage 105 of Volume II.
419. Before a final order is passed in an attachment proceeding, disputesfrequently arise, and the procedure for disposing of these disputes is provided for in rules58 and 59 of Order XXI.
No appeal lies from an order refusing to entertain the claim or objection tothe attachment of the property in dispute under subrule (1) of rule 58, Order XXI, on theground that it is not liable for the same. Instead, a suit will lie against it. In the absenceof institution and result of a suit, if any, against it for establishment of the right to suchproperty, such order is conclusive. [subrule (5) of rule 58, Order XXI C.P.C.]
Appeal, however, lies against the order determining the questions relating toright, title or interest in the property in dispute, and relevant to the adjudication of theclaim or objection to the attachment of such property passed under subrules (2) and (3)of rule 58, Order XXI. In the absence of appeal and the result thereof such order has thesame force, as if it were a decree [subrule (4) of rule 58 Order XXI.]
420. Section 10 of the Employees Provident Funds Act, 1952 (Act XIX of 1952),lays down that the amount standing to the credit of any member in the Fund or of any
exempted employee in a provident fund shall not in any way be liable to attachmentunder any decree or order of any Court in respect of any debt or liability incurred by themember or the exempted employee.
Sale
421. Attached property should not be put to sale without an order for sale underrule 64 of Order XXI. No order for sale should be made unless the statement required bysubrule (3) of rule 66 of Order XXI is furnished. This statement must be signed andverified in the same manner as a pleading and must contain, as far as the decree holdercan ascertain the information set out in subrule (2) of rule 66 of Order XXI. A form ofwarrant of sale of property is given in Form No.27, Appendix E. An order of sale is alsorequired where mortgaged property is to be sold, under a decree in a mortgage suitthough the property has not been attached.
422. After an order of sale is made, notice must be issued to the decreeholder andthe judgment debtor [Order XXI, rule 66(2)]. To settle the proclamation of sale (Form 82,Appendix E).
However, in case of an order of sale of immovable property under attachmentunder rule 54, order XXI, a notice need not be issued to the JudgmentDebtor for settlingthe terms of the proclamation [proviso to rule 66(2) Order XXI], if, by an, Order undersubrule (1A) of rule 54, Order XXI, he is bound over to attend Court on a ;specifieddate to take notice of the date fixed for settling the terms of the proclamation of sale.
423. Thereafter such enquiry may be made as is necessary to settle the terms of theproclamation. What the proclamation must contain is stated in rule 66 of Order XXI andthe Form No. 29 of Appendix E. The Court should ascertain the liabilities and claimsagainst the property after careful scrutiny of Extracts from the Records of Rights and CitySurvey Register. Other things which the Court considers material for a purchaser toknow in order to judge the nature and value of the property must also be ascertained andspecified in the proclamation.
424. The enquiry specified in paragraph 423 must be as through as possible, forthe Code casts on the Court the duty of ascertaining the facts to be entered in theproclamation. If the decreeholder refuses to take such steps, or call such witnesses as theCourt considers necessary to enable it to ascertain the required facts, it is open to theCourt to decline to issue the proclamation of sale.
425. Under sections 287 and 652 of the old Code, the High Court framed certainrules, which in so far as they are consistent with the new Code are still in force. So for asthey are so consistent they are as follows :
(i) Where the Record of Rights has been completed, the extract to be putin under section 238 of the Civil Procedure Code should be an extract from the register ofthat Record, and a copy of the entry, if any, in the Register of Mutations and the sameshould be utilized in the enquiry under section 287 of the Civil Procedure Code.
(ii) If it can be done without unreasonable delay the Court shall examinethe judgmentdebtor or some person acquainted with the circumstances as to his interestin the property and especially as to his share therein, if he is a Hindu, and as to theencumbrances, if any existing thereon (See Form No. 28 Appendix E of Schedule I).
(iii) The Court may require the judgmentdebtor to produce any titledeeds relating to the property which may be in his possession or power and may retainsuch documents till the property is sold or released from attachment. It shall with thecertificate of sale deliver to the purchaser such of them as relate solely to the propertysold and on his demand and at his cost shall give him copies of such of them as relate tothe property sold as well as other property. It shall return all documents which may notunder this rule be delivered to the purchaser to the person by whom or on whose behalfthey shall have been produced.
When any encumbrance on the property shall be discharged from thesales proceeds, the Court shall have like power to direct the production of titledeeds bythe encumbrancer and to deliver them to purchaser or to furnish him with copies thereofand to return them.
(iv) The Court shall give notice on the board of the date on which itproposes to hold an enquiry under section 287, and may summon any person likely toafford material information to attend and give evidence and produce any documentsrelating to the property which may be in his possession or control. Such documents shallbe returned after inspection, the Court retaining copies, if it thinks necessary, prepared atthe applicant's expense. ( A form of notice of the enquiry to be affixed in the court is given as No. 9 of VolumeII).
(v) All costs of the enquiry shall be advanced by the applicant. Theyshall be treated as costs in the execution proceedings and may be apportioned as theCourt thinks fit.
(vi) It shall be borne in mind that the enquiry under section 287 isindependent of any enquiry consequent on an application made under section 278, CivilProcedure Code. The object of the enquiry under section 287 is merely to collectparticulars to be inserted in the proclamation for the information of intending purchaser.The conclusions arrived at in this enquiry are not subject to appeal, and, as a rule, are notdeterminative between the parties.
(vii) The enquiry shall be completed as soon as possible. When it isfinished, the proclamation of the said sale shall be prepared in the form prescribed. (No.29, Appendix E, Schedule I)
If in the case of a Hindu judgmentdebtor it is desired to sell the interest ofany other member of the family (e.g., that of a minor son or brother) the name of suchmember and the fact that his interest is being sold ought to be state in the proclamation,as otherwise his interest may not pass to the purchaser. To the proclamation shall beappended a list of all claims for which, in the opinion of the Court, there is a reasonableand probable cause such as claims of copartners, or reversioner's in the case of Hindufemales, or mortgagees, or tenants, etc. The list may be varied as occasion requires.
(viii) When a copy of the proclamation is sent to the Collector undersection 289, duplicate shall also be sent to the Mamlatdar of each taluka in which anyportion of the property is situated. The Mamlatdar shall post such copy in his Kacheri ina conspicuous place.
(ix) If after the proclamation has been settled, any matter is brought to thenotice of the Court which it considers material for purchasers to know, it shall cause thesame to be notified when the property is put up for sale.
(x) So much of the foregoing rules as may be applicable shall be followedin case of application to sell movable property attached by prohibitory order so that thedescription of such property may be as complete as possible.
(xi) In the case of other movable, the Court may make such inquiries as itthinks proper, but shall not be bound to do so unless application is made to raise the
attachment or to declare a lien.
(xii) It shall not be necessary to sell at the same time or place movableand immovable property attached in execution of the same decree.
(xiii) As regards all such sales of immovable property, the Court in fixingthe place of sale shall consult the wishes of the parties, preference being given to those ofthe judgmentdebtor. In the absence of agreement by the parties as to the place of sale,the sale shall ordinarily be held where the property is situated, unless the Court is ofopinion that it is likely to fetch more if sold at the Court house.
(xiv) All sales held at the courthouse shall be conducted by aresponsible officer and shall take place on a fixed day of the week * which the court shallmake generally known. Care should be taken correctly to specify in the proclamation thetime and place of sale subject to the provisions of section 290.
426. In all cases where sales are adjourned and no fresh proclamations have to beissued, the adjourned date and hour should be notified for the information of the publicby taking the following steps. When the sale is held in the Court precincts a notice shallbe put up on the Notice Board of the Court notifying the adjourned date and hour of thesales. When the sale is held at any place outside the Court precincts, a notice notifyingthe adjourned date and hour shall be affixed if the property to be sold is immovable, onsome conspicuous part of the property itself, and if the property is movable on someconspicuous part of the property in which it is kept. When the propertyis involved is ofconsiderable value, the adjourned date and hour shall, as far as possible, be publishedalso in one of the local newspapers.
427. Whenever the lands of a minor have been placed in charge of the Collector, anotice of an intended sale should be given to the Collector, being either delivered to himor sent by registered post.
428. Civil Judges have a discretion in postponing the sale of attached property, ifthey consider that by reason of exceptional circumstances a reasonable price will not berealised.
429. When immovable property is to be sold and it is intended to take preliminarybids at the site of the property or the village where it is situated and the final bide at the
Courthouse, it should be so stated in the proclamation of sale.
430. When the necessary particulars to be entered in the proclamation have beenascertained and settled, the proclamation must be published. (See Form No. 30 orAppendix E of Schedule I).
431. The law relating to the sale is stated in rules 68 to 77 and 82 to 88 of OrderXXI. If a resale is held resulting in a deficiency in price, the Officer holding the salemust give a certificate in Form 31, Appendix E. The officer conducting the sale shouldgive to the auction purchaser a receipt in Form No. 10 at page 106 of Volume II. Thisform may also be used in other cases (See the footnote printed on it). It should be incounterfoil and the bailiff or officer of the Court receiving the money should fill in thecounterfoil as well as the receipt.
432. As a rule, no sale in execution of a decree should be fixed to take place onany day on which the Court is to be closed. The same rule, so far as possible, shouldapply to the execution of processes for attachment of movable property for the arrest of awitness or judgmentdebtor.
433. The sale of movable property becomes absolute when the purchase money ispaid and a receipt given [Order XXI, rule 77(2)] and is not vitiated by irregularity (OrderXXI, rule 78).
434. Whenever guns or other arms in respect of which licenses have to be takenout by purchasers under the Arms Act, 1959 (54 of 1959), are sold by public auction inexecution of decrees, the Court directing the sale should give due notice to the DistrictMagistrate of the names and addresses of the purchasers and of the time and place of theintended delivery to the purchasers of such arms, so that proper steps may be taken by thepolice to enforce the requirements of the Arms Act. The possession of the arms shall,however, not be allowed to the bidder unless he holds the requisite license under theArms Act.
435. The manner of vesting movable property in the purchaser or giving himpossession is prescribed in Order XXI, rules 79 to 81. (See Forms Nos. 32 to 34 ofAppendix E).
436. Government Promissory Notes attached in execution of a decree, which haveto be disposed of in satisfaction of the decree, should be sent by the Court making the
attachment to the Accountant General with instructions regarding the disposal of the saleproceeds of the notes.
437. In the case of a sale of immovable property, the sale has to be confirmed bythe Court (Order XXI, rule 92). Certain cases are stated in Order XXI, rules 89, 90 and91, in which the sale may be set aside. There are also other reasons, for example, fraud,on account of which a sale may be set aside. A sale should not be set aside withoutnotice to the persons interested (See Forms 36 and 37 Appendix E) and due enquiry.
438. When a sale is confirmed by the Court, a certificate of sale in Form 38 ofAppendix E is to be granted to the purchaser (Order XXI, rule 94).
439. It is desirable that the certificate of sale should state in addition to whatappear in Form 38
(i) the price paid ;(ii) the date of application for the certificate ;(iii) the date of granting the certificate ;(iv) the date of confirmation of the sale ;
440. An office copy of a certificate of sale issued under Order XXI, rule 94 shouldbe kept and upon the issue of the certificate, an entry should be made in the Roznama andalso in the Register of Applications for execution of the fact of its having been issued.
441. As soon as an application for rateable distribution of sale proceeds is grantedthe Court should issue a written order to that effect to the Nazir or Collector, as the casemay be, and a note of each execution application should be made in the Roznama of theother or others.
442. Rules 95 and 96 of Order XXI contain the law as to possession of immovableproperty to the auction purchaser. What is stated in paragraphs 388 to 390 of thisChapter applies also to giving possession under these rules; but the form to be used is No.39 of Appendix E of Schedule I of the Code.
Resistance
443. All questions relating to the right, title or interest in the property and relevantto the adjudication of the application complaining of the resistance or obstruction to the
possession of the decree holder or any claimant other than the judgment debtor of theimmovable property in dispute, are required to be dealt with in accordance with lawcontained in section 74 and Rules 97 to 106 of Order XXI, as amended under the rulesframed by the High Court under section 122 of C.P.C. ( See Forms 40 and 41, C.P.C.)
444. The Order of the Court in these matters in appealable subject to the result ofthe appeal, if any. In absence of any such appeal and the result thereof, such order hasthe same force, as if it were a decree (Rule 103 of Order XXI).
Growing Crops
445. The law as to attachment of growing crops is contained in rules 44 and 45 ofOrder XXI. Attachment may be by order prohibiting the removal of the crop rule 45(4)or by declaring the crop to be attached, in which event it is deemed to have passed intothe possession of the Court.
446. Growing crops are movable property [see clause (13) of section 2 of theCode] and it is clear that the Code intends that growing crops should be specifiedseparately from the land in the application for attachment and that, if it is intended thatgrowing crops as well as land should be sold, both should be separately specified in theapplication for an order for sale.
447. In so far as the rules given in paragraph 415 above apply to standing crops,they must be read subject to rules 44 and 45 of Order XXI.
Appointment of Receivers in Execution.
448. The power to appoint receivers in execution should be more freely used forthe purpose of realising the money decreed where the property is sufficiently large to bearthe extra cost of appointment of a receiver.
449. (1) A Court, ordering attachment of land assessed to the payment of revenueto the Government, should send two copies of the order to the Collector with a request tohave one of them affixed to the notice board in his office. As the other copy is requiredfor the Record of Rights, one copy only need be sent, if the land is in a village where theRecord of Rights has not been introduced. District Judges should obtain lists of suchvillages for their Courts and subordinate Courts, from the Collector.