DELAYS & DIFFICULTIES IN EXECUTION OF DECREES

6.4 Civil Procedure Code and Limitation

Faculty-in-charge:

Prof. (Dr.) Subhash Chandra Singh

(Adjunct Professor of Law)

Submitted by-

Moon Mishra

UID: SF0117029

B.A LL.B (3rd year, 6th Semester)

National Law University and Judicial Academy, Assam

Guwahati

31st May 2020

 TABLE OF CONTENTS

List of Cases………………………………………………………...………………..……..ii

List of Statutes…………...……………………………………………………………..…..iii

List of Abbreviations………...………………………………….………………………….iii

1. Introduction……………………………………………..……………………………..1

1.1. Aims and Objectives…………………………...…………….

………………………..2

1.2. Scope and

Limitations…………………………………………………………………2

1.3. Literature

Review……………………………………………………………………...3

1.4. Research Questions………………………………………...…………….

……………3

1.5. Research Methodology……………………………………….

……………………..…4

2. Decree and its Essentials………………………………………………………………..

2.1 Essentials of Decree……………………………………………………………………

3. Delays and Difficulties in Execution of Decree

3.1 Requirement of Documentary Evidence to Prove Out-Of-Court Payment Of Decretal

Amount

3.2 Difficulties Faced by The Decree-Holder in Executing His Decree By Arrest And

Detention Of The Judgment-Debtor

i
3.3 Statutorily Imposed Restrictions on The Decree-Holder Regarding Attachment Of

Property For The Attachment Of A Decree

3.4 Effect of Amendment To S.47- Is It More Beneficial To The Decree Holder In

Execution?

3.5 Stay of Execution

3.6 Grounds for Challenging Sale of Property that has Been Sold in Execution

3.7 Resistance to Delivery of Possession to Decree-Holders and Auction

4. Conclusion

Bibliography

ii
 TABLE OF CASES

S.No. NAME OF THE CASE CITATION

1. Anandi Lal, v. Ram Sarup AIR 1936 All 495

2. Anop Chand v, Hirachand AIR 1962 Raj. 223

3. Ghosh v. Banerjee 79 Cal WN 76

4. Hansraj v. Satnarain AIR 1957 Raj 219

5. Judhisthir v. Surendra, AIR 1969 On 233

6. Krishna Singh v. Mathura Ahir AIR 1982 SC,686

7. Quazi Rahman v. Nurbanu Bibi AIR 1976 Gau 39

8. QuaziRehman v. Sital Prasad AIR 1977 Gau 2

9. Ram Lochan v. Mahadeo Prasad AIR 1970 All 544(FB).

10. Shaukat Hussain v. Bhuneshwari Devi AIR 1973 SC 528

11. Shyam Singh v. Collector, District Hamirpur 1993 Supp (I) SCC 693

12. Sreenath Roy v. RadhunathMookerjee (1882) 9 Cal 773

13. State of Rajasthan v. Savaksha AIR 1972 Guj 179

14. Subhash Kumar v. SheoBalak AIR 1975 Pat 307

15. Umakanta v. Penwick& Co. Ltd AIR 1953 Cal 717

iii
 TABLE OF STATUTES

1. 1908- The Code of Civil Procedure

TABLE OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

AP Andhra Pradesh

Bom Bombay

Cal. Calcutta

Corp Corporation

Cri Criminal

ed Edition

L.J. Law Journal

LR Law Report

Mad Madras

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

Supl/Supp Supplementary

UOI Union of India

v. versus

Vol Volume

iv
 1. INTRODUCTION

The expression 'execution' signifies the enforcement of decrees and orders by the process of
court, so as to enable the decree-holder to realize the fruits of the decree.' Section 51, C.P.C.,
defines the jurisdiction and power of the court to enforce execution. It enumerates the
different modes in which the court may order execution of a decree according to the relief
granted in favor of a decree-holder. It is for the decree-holder to decide in which of the
several modes he will execute his decree. A decree can be enforced by delivery of any
property specified in the decree, by attachment and sale, or by sale without attachment or any
property, by arrest and detention in civil prison of the judgment-debtor, or in such manner as
the nature of the relief may require. But execution is subject to the conditions and limitations
prescribed by the Code and the discretion of the court.1

A decree is one of the most frequently heard terms in Civil Matters. The adjudication of a
court of law is divided into decree and orders. In this article, are going to discuss the decree.
The term “decree” has been defined under section 2(2) of the Code of Civil Procedure,1908.
The decree is a formal expression of adjudication by which the court determines the rights of
parties regarding the matter in controversy or dispute.

1.1 AIMS AND OBJECTIVES

The aim of this project is toexamine how some of these provisions of the Code have been
used to cause delay, or otherwise created difficulties, to the decree-holder in the execution
process, and thus question the feasibility of the inclusion of these provisions.

The following are the objectives of this project:

1. To understand what is a decree under Code of Civil Procedure, 1908,

2. To study what are the essentials of a decree under Code of Civil Procedure 1908; and
3. To study the causes of the delay in the execution of the decree under Code of Civil
Procedure, 1908.

1.2 SCOPE AND LIMITATIONS

1
Sreenath Roy v. RadhunathMookerjee, (1882) 9 Cal 773; Ghosh v. Bana~ee, 79 Cal WN 76; State of Rajasthan
v. Savaksha, AIR 1972 Guj 179. Ibid. See Also, Umakanta v. Penwick& Co. Ltd., AIR 1953 Cal 717; Shyam
Singh v. Collector, District Hamirpur, 1993 Supp (I) SCC 693. Ibid, See Also, Anandi Lal, v. Ram Sarup, AIR
1936 All 495(FB); Ram Lochan v. Mahadeo Prasad, AIR 1970 All 544(FB).

1
The scope of this project to understand the meaning of decree under Code of Civil Procedure,
1908. It also covers the basic essentials of a decree as per its definition as provided in the
Code of Civil Procedure, 1908 It covers extensively the causes that lead to the delay of
execution of the decree that are enshrined in the Act itself.

The limitation of this project is that it does not include a comprehensive understanding of the
basics of decree and its execution.

1.3 LITERATURE REVIEW

1. Thakker, C.K, (Takwani) Civil Procedure Code, 5th Ed., Eastern Book Company,
Kolkata, 2006
he law regulating the procedure in the Civil Courts is governed by the Code of Civil
Procedure, 1908, one of the important branches of procedural or adjective law. In this book
the learned Author has discussed principles of the Civil Procedure exhaustively with
reference to leading decisions of the Supreme Court as well as of various High Courts. Mr.
Justice Thakker has discussed error of fact, error of law and error of jurisdiction in the light
of celebrated decisions with much elucidity. Mr. Justice Thakker in this magnificent work has
profusely discussed Sections 1 to 78 of this Code exposing various facts underlying the
procedural provisions of these Sections with erudition. The synopsis to various Sections as laid
down by the learned Justice also covers a wide range of topics for considerations.

2. Pollock &Mulla, The Code of Civil Procedure, 13th edition by P.M. Bakshi,
Butterworths India, New Delhi 2000.

This legal classic presents an authoritative, revised and fully updated account of the law relating to
civil procedure in India, The object, principles and meaning of the sections and orders in the Code are
explained and analysed in the light of important judgments pronounced by the Supreme Court and
various High Courts. Explains complex legal concepts with clarity and coherence as well as covers all
aspects and dimensions of law relating to civil procedure in India Amendments made by the
Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act,
2015 which provides for streamlined procedure to be adopted for the conduct of commercial disputes
of specified value are incorporated at relevant places in the Code. This comprehensive treatise on the
Code of Civil Procedure contains the latest case law and State Amendments made by various High
Courts

1.4 RESEARCH QUESTIONS

2
The following are the research questions of this project:

1. What is a decree as per Code of Civil Procedure, 1908?

2. What are the essentials of a decree as per Code of Civil Procedure, 1908?
3. What are the causes of the delay in the execution of the decree as per Code of Civil
Procedure, 1908?

1.5 RESEARCH METHODOLOGY

In this project, the researcher has adopted analytical type of research and a doctrinal method
of data collection. Doctrinal research methodology is essentially a library-based study, which
means that the materials needed by a researcher may be available in libraries, archives and
other data-bases. The researcher has used computer laboratory and used various websites to
get important data related to this topic. 20th Edition of Bluebook citation is used as a mode of
citation for footnoting

Data has been collected from secondary sources like books, journals, web sources etc. No
primary source like survey data or field data was collected by the researcher.

2.DECREE AND ITS ESSENTIALS

3
A decree is one of the most frequently heard terms in Civil Matters. The adjudication of a
court of law is divided into decree and orders. In this article, are going to discuss the decree.
The term “decree” has been defined under section 2(2) of the Code of Civil Procedure,1908.
The decree is a formal expression of adjudication by which the court determines the rights of
parties regarding the matter in controversy or dispute.

1.1 ESSENTIALS ELEMENTS OF A DECREE

1. Adjudication

For a decision of the court to a decree, there must be an adjudication. The matter in dispute
should be judicially determined. As held in the case of Madan Naik v. Hansubala Devi, if the
matter is not judicially determined then, it is not a decree. So, if the decision is of
administrative nature then it cannot be considered as a decree. Also, any order for dismissal
of suit due to default in the appearance of parties or order for dismissal of an appeal cannot be
considered as a decree.

As held in the Deep Chand v. Land Acquisition Officer, the adjudication should be made by
the officer of the Court and if it is not passed by an officer of the court then it is not a decree.

2. Suit

For any decision to be considered as a decree, the adjudication must have been done in suit.
The term “suit” for this context can be understood as “any civil procedure which has been
instituted by the presentation of a plaint”. The decree can only be in a civil suit. If there is no
civil suit, there can be no decree.

There are several specific provisions which enable certain applications to be treated as suits
such as proceedings under the Hindu Marriage Act, the Indian Succession Act etc. and the
decisions therein are to be considered as a decree.

3. Rights in controversy

The rights of parties which are in controversy must be determined by a formal adjudication.
The rights determined under this circumstance are substantial rights and not procedural
rights. The parties to the rights in controversy should be the plaintiffs and defendants and, if
an order is passed upon the application made by a third party who is a stranger to suit then it
is not a decree.

4
The matter in controversy should be the subject matter of the suit regarding which the relief is
sought. Any question regarding the status and characters of party suing, the jurisdiction of the
court, maintainability of suit or any other preliminary matter is covered under this.

4. Conclusive determination

The determination of rights in controversy in an adjudication should be conclusive in nature.

As held in the case of Narayan Chandra v. PratirodhSahini, the determination should be final
and conclusive regarding the court which passes it. That’s why an interlocutory order which
does not finally determine the rights of parties is not considered as a decree.

The main point to be kept in mind is that whether the decision made is final and conclusive in
essence as well as substance. If it is so, then the decision will be considered as a decree, else
not.

5. Formal Expression

The adjudication should be expressed formally and such formal expression should be given in
the manner prescribed by law. The decree should be drawn separately and it should follow
the judgement. No appeal lies the judgement if the decree is not formally drawn upon the
judgement.

3. DELAYS AND DIFFICULTIES IN EXECUTION OF DECREE

5
3.1 REQUIREMENT OF DOCUMENTARY EVIDENCE TO PROVE OUT-OF-
COURT PAYMENT OF DECRETAL AMOUNT

O21 R.2-A was added by the 1976 Amendment Act. It provides that in cases of out-of-court
payment to the decree-holder, towards part/whole satisfaction of the decree, there has to be
documentary evidence for the same. But this provision has been misused by the judgment-
debtor, who can produce forged documents before the court, to the effect that he has made
much payment to the decree-holder.

Then the court has to look into the genuineness of the document and ascertain the veracity of
the judgment-debtor's assertions. This takes up a lot of time and delays the execution of the
decree. But it is necessary to have this rule because in case, the judgment-debtor has actually
paid the decree-holder, but the latter denies it, then the same can be proved by the production
of documentary evidence, and the judgment-debtor is not made to pay twice. Also it prevents
judgment-debtors from randomly approaching the courts and asserting that they have paid the
decree amount outside court, because without documentary evidence the court will now not
consider their Claims.

3.2 DIFFICULTIES FACED BY THE DECREE-HOLDER IN EXECUTING HIS

DECREE BY ARREST AND DETENTION OF THE JUDGMENT-DEBTOR

S.51 (c) of CPC empowers the court to order execution of a decree, by arrest and detention of
the judgment-holder in the civil prison. But there are various obstacles faced by the decree-
holder, if he desires to execute his decree, by virtue of arrest and detention of the judgment-
debtor. Some of these have been enumerated below:

a) Requirement of affidavit and notice

In an application for the arrest and detention of the judgment-debtor in prison, the decree-
holder must state or must file an affidavit stating the grounds on which arrest is sought for.
Then the court will issue a notice to the judgment debtor to show cause as to why he should
not be arrested.

b) Insolvency

The court will not order arrest in cases where the judgment-debtor, on being served notice to
explain as to why he should not be arrested, appears in court and proves to the court's
satisfaction, that he has no property-movable or immovable, out of which to pay the decree-

6
holder. He has to then file an application to be declared an insolvent and produce a copy of
such an application before the executing court. It will take time for the Insolvency Court to
decide whether the judgment-debtor is actually insolvent or not, but till then the execution
proceedings will be stalled. If he is adjudged to be an insolvent, then an Official Receiver will
be appointed, to look into all the liabilities of the insolvent.

c) Special Exemptions

Further, the proviso to S.51, lays down that where the members of legislative bodies 2 or any
person or class of persons, whose arrest, according to the State Government might be
attended with danger or inconvenience to the public. 3 This clearly restricts the decree-holder's
right to get the decree executed by means of arrest and detention, but special exemptions,
similar to this one, have been provided to these classes of persons in other enactments and
codes also, by virtue of their special position in society (like women, children), or the nature
of their job (like legislators), or for reasons of judicial expediency (like witnesses).

d) Premature release of arrested judgment-debtor

The judgement-holder may be released by the court, or the government early on the ground
of illness.4 Thus premature release of the judgement-debtor on account of illness, would
interfere in the execution of the decree also. But it has to be understood that the provisions of
S.59 are based on purely humanitarian grounds, and cannot be dispensed with.

3.3 STATUTORILY IMPOSED RESTRICTIONS ON THE DECREE-HOLDER

REGARDING ATTACHMENT OF PROPERTY FOR THE ATTACHMENT OF A
DECREE.

One of the modes by which execution of decree takes place is by the attachment of property,
before its sale, but this is subject to S.60 of the Code.

a) Properties exempt from attachment

S.60 declares what properties are liable to attachment and sale in execution of a decree, and
what properties are exempt there from. The proviso to S.60(1) gives a list of properties which
are exempt from attachment and sale in the execution of a decree and the list includes:
2
S.135-A
3
S.55(2)
4
S.59

7
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.5

By the 1976 Amendment Act, it has been. clarified that any agreement to waive the benefit of
any exemption under S.60 shall be void. 6 S.61 empowers the state government to exempt
agricultural produce from attachment or sale.

b) Salary

With specific reference to salary, S 60(1) proviso (i) provides that salary shall not be liable to
attachment and sale to the extent of the first four hundred rupees and two-thirds of the
remainder in execution of a decree, other than a decree for maintenance (in case of execution
of a decree for maintenance, only one third of the salary shall not be liable to attachment).

Further, where the attachable portion of the salary has been under attachment for a period of
24 months, either continuously, or intermittently, such portion shall be exempt from
attachment, until the expiry of a further period of 12 months. If such attachment has been
made for a period of 24 months for the execution of the same decree, then after 24 months,
the salary shall be finally exempt from attachment for that decree. Where more than one
decree-holders have asked for attachment of the salary of the same judgement-debtor, it is for
the disbursing officer to determine what portion of the salary is attachable and inform the
court of the same, and pay accordingly.

The reasons for these items, including a portion of the salary of the judgement-debtor to be
exempt from attachment is evident. It is to ensure that he is not denied of his means of
subsistence and of the items, necessary for his daily existence.

c) Inventory of movable property to be attached required:7

Under O.21, R.( 12) of the Code, when the decree-holder makes an application for attachment
of movable property belonging to the judgment-debtor, but not in his possession, he has to
also annex with the application, an inventory of the property to be attached, containing a
reasonably accurate description of the property. It is been held that the provisions of this rule
are mandatory and require strict adherence.8
5
Proviso to S.60(1)
6
1976 Amendment Act
7
O.21, R.( 12)
8
AIR 1985 Ker 81

8
Where a decree-holder fails to annex to the application for execution of the decree, such an
inventory of the property to be attached, with a reasonably accurate description of the
property to be attached, the application is not one in accordance with law. 9 Further it has been
held by the court that there is no obligation on the judgement-debtor to post the decree-holder
with all the details of his properties. It is the decree-holder's business to gather knowledge
about the properties so that he can realise the fruits of his decree.10

d) Description of immovable property to be attached required:11

O.21, R.13 requires that where an application is made for the attachment of any immovable
property of the judgement-debtor, it should contain an accurate description of such property
including its boundaries or numbers and the interest or share of the judgement-debtor in this
property. The provisions of this rule are also mandatory, but a defect in the application can be
rectified, by way of an amendment under O.6, R.17, CPC.

O.21, Rr.12 and 13 seem to impose too harsh a burden on the decree-holder, in expecting him
to find out all the necessary details of the property to be attached, though he can make
changes, by way of amendment in his application for attachment. This is one of the
provisions, which can probably be amended to make it more conducive to the interests of the
decree-holder.

e) Objections or claims to attachment

Where a property has been attached in execution of a decree, there may be objections to such
attachment either by a party or his representative or by a third party. Adjudication of claims
or objections to attachment12 deals with adjudication of claims to, or objections to attachment
of property. The proviso to R.58(1) enacts that the court shall not entertain the objection or
claim where (1) before the claim is preferred or objection is made, the property attached has
already been sold, or (2) where the court considers that the claim or objection was designedly
or unnecessarily delayed.

In both these cases, the order refusing to entertain objection or claim is subject to suit. 13
Where the court entertains a claim or objection, it must investigate fully and not summarily

9
AIR 1915 All. 320
10
AIR 1951 SC 16
11
O.21, R.13
12
021, R.58
13
R. 58(5)

9
and must adjudicate upon all questions, including the questions of right, title and interest in
the property under attachment. The court shall, in accordance with such determination,

i. allow the claim or objection and release the property from attachment either wholly or
to such extent as it thinks fit;
ii. disallow the claim or objection;
iii. continue the attachment subject to any mortgage, charge or other interest in favour of
any person;
iv. pass such order as in the circumstances of the case it deems fit.14

Thus, clearly the procedure has been laid down for how and when the court is to adjudicate
upon a claim to, or objection to attachment of property. The proviso to 0.21, R. 58 clearly
states no such claim or objection shall be entertained by the court in cases where the court
considers it to be designedly, or unnecessarily delayed, or it is made after the property
attached has already been sold. This would give the impression that the court is trying to
avoid delay and harassment to the decree holder. But if this is the object of the proviso, then
it is largely defeated by the following two things:

i. An order refusing to entertain such a claim or objection is subject to suit. 21. 15an
order passed by the court after adjudicating upon the claim or objection, is
appealable, like a decree.
ii. This would greatly delay the execution process. By virtue of the 1976 amendment to
S.47 of the Code, all orders made therein are no longer appealable, and the only
remedy available now is to file a revision petition against those orders. This rule is an
exception to S.47, in so far as it provides for appeals and instituting of fresh suits, in
the manner provided above, and is greatly misused by judgement-debtors to delay
proceedings. But whether S.47 itself, which dispenses with the provisions for appeals
is more beneficial to the decree-holder or not, is the next question.

3.4 EFFECT OF AMENDMENT TO S.47- IS IT MORE BENEFICIAL TO THE

DECREE HOLDER IN EXECUTION?

S.47 lays clown the principle that matters relating to the execution, discharge or satisfaction
of a decree arising between the parties including a purchaser of a share in execution should be

14
R. 58 (3)
15
0.21, R.58(5).

10
determined in execution proceedings and not by a separate suit. In order for S.47 to apply, the
following conditions must be met:

(1) the question must be one arising between the parties to the suit in which the decree has
been passed, or their representatives; and

(2) It must relate to the execution, discharge or satisfaction of the decree.

Where a third party has any objection to the attachment of property, after the Amendment Act
of 1976, all the questions, including the question of title shall be decided by the executing
court in the execution court and not by separate suit. 16 Before the 1976 Amendment Act,
which deleted S.47 from S.2(2), the order passed by the executing court shall have the same
force and be subject to the same conditions as to appeal or otherwise as if it were a decree.17

But now the order passed under S.47 is not a deemed decree, hence it is not appealable under
S.96(first appeal) and S.100 (second appeal). Thus, the only recourse available to the party
aggrieved of the order, passes by the executing court under S.47 is to prefer a revision
application under S.115, CPC, provided the conditions laid down in S.115 are satisfied. We
need to examine whether this amendment has been beneficial to the decree-holder or not.

For this firstly, a perusal of the legislative intent behind the amendment of S.47 has to be
undertaken. The Object and Reasons, clearly states that S.47(as it stood before the
amendment in 1976), was mainly responsible for the delay in the execution of decrees, and
the Joint Committee therefore, recommended to omit the determination of a question under
S.47, from the definition of a decree under S.2(2) 18. The result is that all questions between
the parties to the suit, in which the decree has been passed and their representatives should be
disposed of under S.47 and not by a separate suit, and the determination of all such questions
under S.47 will no longer be appealable as a decree. But wherever any order is intended to be
appealable as a decree, a specific provision is made to that effect in the Code itself, like under
0.21, Rr.43-s(2)(c), 46-B, 46-C, 46-E, 46-H, 98, 100, 103.

16
0.21, R.58(1 )&(2)
17
0.21, R.58(4).
18
The committee note that “according to the definition of the expresssion 'decree' given in the Code, the
determination of any question under S.47 merits to a decree, and as such, an appeal and second appeal would lie
against such determination. The Committee is of the view that this provision of the Code is responsible for the
delay in the execution of the decrees. The Committee, therefore felt that the definition of the term 'decree'
should be amended so that the determination of the question under S.47 may not amount to a decree,"

11
Thus it is evident that the legislative intent was to dispense with the provision for appeals to
these orders passed under S.47, so as to avoid delay, so that the decree-holder could realise
the fruits of his decree quickly. Before the amendment, the judgement-debtor used to delay
execution endlessly, by filing for appeals. Now, only revision can be preferred under the
limited grounds provided under s.115. But though this amendment sought to make S.47 more
beneficial to the decree-holder and to expedite execution of the decree, it has also had its
pitfalls for the decree-holder. He himself is also bound by the provisions of S.47 and cannot
prefer an appeal, when the order is against his interests.

Illustration: Suppose A is the judgement-debtor, who contends that he has paid the decree
amount outside court to the decree-holder. As proof, he submits some forged documents. But
the executing court fails to notice that these documents are forged and adjudges that the
decree-holder has been paid outside court. Now, B, after the amendment to S.47 cannot prefer
an appeal to this order of the executing court. The only recourse open to him is to file a
revision petition under S.115. But in revision, the court will not go into appreciation of
evidence, so in effect, B will be left with no relief. Thus, though the amendment was to
dispense with appeals under S.47, to save the decree-holder the harassment of undue delay, in
execution of his decree, the provision has been used by dishonest judgement-debtors to forge
documents and to deny the decree-holder of execution itself.

3.5 STAY OF EXECUTION

Under 0.21, R.26, CPC, the executing court can stay execution only for a reasonable time and
only for particular purposes, so as to enable the judgment-debtor to approach the court which
passed the decree and to:

i. get the decree amended

ii. show that the decree is satisfied or is not existing
iii. get the decree passed against him on the ground that it was obtained by fraud
iv. show that the decree is barred by limitation

3.5.1 Stay of execution, pending the disposal of suit between Judgment-debtor and
decree-holder

Rule 29, 0.21 provides for stay of execution, pending disposal of suit between judgement-
debtor and decree-holder. For this rule to apply, there must be two simultaneous proceedings
in court: a proceeding in execution of the decree at the instance of the decree-holder against

12
the judgement-debtor and, a suit at the instance of the judgement-debtor against the decree-
holder.19

The provisions of Rule 29 are not mandatory, but discretionary; 20 The discretion, however
must be exercised judicially, and in the interests of justice, and not mechanically and as a
matter of course. 21 It cannot be exercised so as to allow a party to abuse the process of law.22

The essence of this provision is expressed very, accurately in the words of Mitra, J., in the
case of Judhisthir v. Surendra23:

"the fundamental consideration is that the decree has been obtained by a party and he should
not be deprived of the fruits of that decree except for good reasons. Until that decree is set
aside, it stands good and it should not be lightly dealt with on the off-chance that another suit
to set aside the decree might succeed----- the decree must be allowed to be executed, and
unless an extraordinary case is made out, no stay should be granted. Even if stay is granted,
it must be on suitable terms so that the earlier decree is not stifled."24

The reasoning stems from the principle that a judgement-debtor may not be harassed, or
deprived of the fruits of the decree, merely because a suit has been subsequently been filed
for setting aside that decree.

3.6 GROUNDS FOR CHALLENGING SALE OF PROPERTY THAT HAS BEEN SOLD IN
EXECUTION OF THE DECREE

3.6.1 Movable Property

To challenge sale of movable property the applicant has to approach the court under 0.21,
R.78, and for immovable property, under 0.21, r.90, C.P.C. Under both these rules, he has to
prove two things:

(1) there was irregularity in publishing or conducting the sale of movable property, and

19
Shaukat Hussain v. Bhuneshwari Devi, AIR 1973 SC 528; Krishna Singh v. Mathura Ahir, AIR 1982 SC,686;
Hansraj v. Satnarain, AIR 1957 Raj 219; Subhash Kumar v. SheoBalak, AIR 1975 Pat 307.
20
Anop Chand v, Hirachand, AIR 1962 Raj. 223; Quazi Rahman v. Nurbanu Bibi, AIR 1976 Gau 39.
21
Quazi Rahman v .Nurbanu Bibi, AIR 1976 Gau 39; QuaziRehman iv. Sital Prasad, AIR 1977 Gau 2
22
Quazi Rahman v Nurbanu Bibi, AIR 1976 Gau 39;

23
Judhisthir v. Surendra, AIR 1969 On 233
24
Ibid at 234. See Also, Quazi Rahman v. Nurbanu Bibi, AIR 1976 Gau 39; QuaziRehman iv. Sital Prasad, AIR
1977 Gau 25.

13
 (2) injury was vas caused by virtue of this irregularity to particular person by any other
person

If these two conditions are satisfied under 0.21, R.78, then the sale of movable property does
not get vitiated. But the person aggrieved can institute a suit against the person responsible
for such irregularity and injury to him, for the recovery of the specific property (if that person
is the purchaser), or alternatively, for compensation.

3.6.2 Immovable Property

In the case of immovable property, if the above two conditions are satisfied under 0.21, R.90,
then the person aggrieved can file an application before the executing court, to get such sale
set aside.

Though these provisions call for interference in execution, they rightfully do so. The burden
is very high on the person challenging the sale, to not only prove irregularity or fraud in
publishing or conducting the sale, but also to prove injury to himself by virtue of such fraud
or irregularity. Further, the sale can be set aside only in such cases where the property is
immovable. But for movable property where the entire sum has already been paid and no
further confirmation to the sale is required, to avoid any hardship to the auction-purchaser, it
has been stated that such sale will not be vitiated. The purpose of these provisions is basically
to prevent any hardship to the judgement-debtor, where there has clearly been irregularity or
fraud in matters of sale, thus affecting him prejudicially. For example, where there is
connivance between the decree-holder, the sale officer and the auction purchaser to sell the
property off at a low price, these provisions provide redressal to the judgement-debtor. But
these provisions have been misused by the judgement-debtors, to unnecessarily delay matters
and harass the decree-holder, by filing applications under these rules, without any basis.

3.7 RESISTANCE TO DELIVERY OF POSSESSION TO DECREE-HOLDERS AND

AUCTION-PURCHASERS

S.74 and Rules 97-103 of 0.21 deal with resistance to delivery of possession to decree holders
and auction-purchasers. Under R.97, where the decree-holder or 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. Under R.99, any person other than the Judgement-debtor, if dispossessed by the
decree-holder or auction-purchaser, may make an application to the court complaining of

14
such dispossession. The court shall on application under R.97 or R.99, proceed to adjudicate
upon it as per R.101. Accordingly, the court shall either:

(a) order the auction-purchaser or decree-holder to be put in possession where it is

satisfied that the resistance or obstruction was occasioned without any just cause, by
the Judgement-debtor, or by some other person at his instigation or on his behalf or by
any transferee, where such transfer was made during the pendency of the suit or the
execution proceeding.
(b) if the applicant is resisted or obstructed even thereafter in obtaining possession, the
court may at the instance of the applicant order the osbtructor to be detained in prison
upto 30 days.
(c) order the dispossessed person to be put back into possession pass such order as in the
circumstances of the case it deems fit.

These rules discussed above, represent the last stage at which the court can interfere in
matters concerning execution. Strictly speaking, execution has already been ordered, but
these rules provide resort to the aggrieved parties, for problems arising after execution has
been ordered.

If we look at the case law of the Supreme Court also regarding interference in execution of
civil process, we find that the court is reluctant to interfere in matters decided by the
executing Court The places the court has interfered is:

a. where the lower courts have wrongly interfered and to set "aside their orders;
b. where the executing court has looked into matters which it is not supposed to, like
legality of the decree, or limitation period etc,
c. where non-interference would result in gross injustice to one of the parties.

15
 CONCLUSION

Thus, after an examination of various provisions relating to execution of the decree, which
depose problems to the decree-holder, it is the author's opinion that despite these difficulties,
the legislative wisdom in incorporating these provisions is justified. The legislative intent
behind the various provisions examined seems to be, to strike a balance between the rights of
the judgement-debtor and the decree-holder, mainly:

 the right of the decree-holder to get the fruits of his decree,

 to realise the contractual obligations owed to him; and
 the right of the judgement-debtor to reasonable and fair procedure under Art.14, of the
Constitution and a guarantee of certain safeguards.

These provisions are mostly there to safeguard the interests of honest judgement-debtors. The
problems are not being posed by these provisions to the decree-holders, but by the misuse of
these provisions, by dishonest judgement-debtors. If we dispense with these provisions it will
be unjust to the honest judgement-debtors, and may, also be detrimental to the decree-holder.

For example, the 1976 amendment to S.47 was made with the object of preventing delay, by
dispensing with appeals to orders passed therein, and thus, expediting the execution process.
But as has been seen above, this too has its pitfalls, because it denies the decree-holder also
the forum of appeal, in cases where the revisional proceedings are unable to address
grievances of the decree-holder, which could have been properly handled in an appeal, like
appreciation of evidence.

Further, there are some provisions, which are there for the benefit of both decree-holder and
judgement-debtor, like resorting to the court when there is resistance to, or obstruction in
possession of property by decree-holder or auction-purchaser. Thus, just because these
provisions are open to abuse, that by itself, is not rationale enough to warrant the deletion of
these provisions from the Code and deny the judgement-debtors, as a class of the benefit and
protection of these provisions.

16
 BIBLIOGRAPHY

BOOKS REFERRED

1. Thakker, C.K, (Takwani) Civil Procedure Code, 5th Ed., Eastern Book Company,
Kolkata, 2006
2. Halsbury’s Law of India, Vol.7, Civil Procedure, Butterworths Lexis Nexis, New
Delhi 2002.
3. Pollock &Mulla, The Code of Civil Procedure, 13th edition by P.M. Bakshi,
Butterworths India, New Delhi 2000.

Internet Websites

1. http://www.manupatra.com
2. http://www.indiankanoon.org
3. http://www.law.umkc.eduvotes.com
4. http://www.judic.nic.in
5. http://www.courtnic.nic.in
6. http://www.lawmin.nic.in

LEGAL DATABASES

1. Manupatra Online Resources

2. SCC OnLine
3. Jstor