UNIT 3

Q.3 DIFFERENT MODES OF EXECUTION OF DECREE?

INTRODUCTION
 The execution of decrees is an essential step in all the proceedings.
 Execution of decree means enforcement or implementation of a decree passed by the
court.
 Unless a decree is passed by the court is executed, the decree holder cannot
effectively enjoy the outcome of the suit.
 The execution is complete when the DH gets the money or the award.

POWERS OF COURT TO ENFORCE EXECUTION S.51

There are various modes of execution that is acceptable according to Section 51 of the Code
of Criminal Procedure. According to this section, the various modes of execution of a decree
are:

 Delivery of any property which is specifically mentioned in the decree;

 Attachment and sale of property;

 Sale without an attachment of property;

 The arrest of the judgment debtor;

 Detention of the judgment debtor;

 Appointment of a receiver.

MODES OF EXECUTION

1. DELIVERY OF PROPERTY SECTION 51(a), Order XXI rules 31,35 and 36

 The term delivery means handing over the possession

 The term property includes both moveable and immoveable property

Delivery of moveable property (RULE 31)

A decree for any specific moveable property or for any such share in such property may be
executed in any of the following manners;

When the decree is for any specific movable property, the execution can take place in any of
the following made
(a) by seizure and delivery of the property.
(b) By detention of the judgment debtor.

(c) By attachment of his properly.

(d) By attachment and detention both.
Money is not covered within the definition of movable property and there is separate
procedure for money decree.

Delivery of immoveable property ORDER XXI RULES 35 ND 36

 When the decree is for the delivery of immovable property, the property can be
delivered to the person to whom it has been adjudged or to the representative of that
person;

 This delivery has to be made after removing any person bound by the decree who
refuses to vacate the property;

 When the decree is for the joint possession of the immovable property, the possession
shall be delivered after affixing the copy of the warrant in a place that is visible;

 When the person in possession is not providing free access to the property, then the
Court can remove or open any lock or bolt or break open any door or do any other act
necessary for putting the decree-holder in possession after giving proper warning to
the women in that property.

2.ATTACHMENT AND SALE OF PROPERTY OR SALE WITHOUT ATTACHMENT

OF PROPERTY (S.51(B))

Attachment is a legal term which refers to the action of seizing property in anticipation of a
favourable ruling for a plaintiff who claims to owed money by the defendant.

Decree Holder is Dominus litis(person to whom the suit belongs) and he has the right to
choose the mode of execution from those available to him.

Neither the Court nor the Judgement debtor can force or persuade him to choose a particular
mode of execution. This can be referred from the case V. Dharmavenamma v. C.
Subrahmanyam Mandadi.

i)empowers the court to order execution of a decree by attachment and sale or by sale without
attachment of any property. The court is competent to attach the property if it is situated
within the local limits of the jurisdiction of the court.

ii) It is immaterial that the place of business of the Judgment debtor is outside the jurisdiction
of the court.

Section 60 of the Code of Civil Procedure provides the list of properties which are liable to
attachment and sale in execution of the decree. The list which is liable to be attached for
enforcement of decree according to this Section is:

 Land;

 Houses or other buildings;

  Goods and Money;

 Banknotes and cheques;

 Bill of exchanges and promissory notes;

 Hundis;

 Government Securities, bonds and other securities for money;

 Debts;

 Shares in the corporation;

 All other saleable property that belongs to the judgment-debtor which can be movable
or immovable.

3 ARREST AND DETENTION

Under Section 51(c) of CPC, it is given that when a decree-holder moves to the court for
executing a decree, the court can execute such decree by the arrest and detention of the
judgement debtor.

The decree for arrest and detention may be passed in the following cases given under Order
XXI:

 Under Rule 30, a decree for the payment of money can be executed by the arrest and
detention of the judgement debtor.

 Under Rule 31, where the decree is for a specific moveable party, it can be executed
by the arrest and detention of the judgement debtor.

 Under Rule 32, where the decree is for specific performance of the contract or an
injunction, the court can execute the decree by arrest and detention of the judgement
debtor.

4. APPOINTMNET OF RECIEVER SEC 51 (d) Rule 1 to 5

Order XL of the Code of Civil Procedures contains various provisions relating to the
appointment of a receiver. The Court will also fix appropriate remuneration for the services
provided by the receiver. The Court can appoint an impartial person known as a receiver
before or after the decree for:

 Management and protection of the property;

 The collection of the rents and profits;

 The application and disposal of rents and profits;

 The execution of documents;

  The Court also provides other powers than the above-mentioned power if it thinks fit.

There are various duties of a receiver that is provided in this Order like:

 Furnishing any security asked by the Court;

 Submission of accounts at periods that he is appointed and in such form as the Court
directs;

 Being responsible for any loss that has occurred to the property by the wilful default
or gross negligence of the receiver;

 Paying the amount due to him as the Court directs.

The Court can also sometimes attach and sell the property of the receiver in order to recover
the loss occurred because of him and can give the remaining amount to the receiver after
compensating the loss. The Collector can also be appointed as a receiver when the property is
land that is paying revenue to the Government or the land in which the revenue has been
assigned or redeemed, the Court can appoint a Collector as the receiver with their consent.

5. Decree against Legal Representative: If the judgment debtor dies before the
decree is satisfied, the court can pass a decree against his legal representative.
The legal representative will be liable to pay the amount due under the decree
out of the assets of the deceased.
6. Execution of Decree against Firm: If the decree is against a firm, the court can
execute the DECREE against any property of the firm or against any partner
of the firm who has assets.
7. Execution of Decree against Joint Property: If the decree is against joint
property, the court can order the sale of the joint property and distribute the
proceeds among the co-owners according to their respective shares.
8. Execution of Decree against Public Officer: If the decree is against a public
officer in his official capacity, the court can direct the government to withhold
a portion of his salary to satisfy the decree.
Q.4 Appearance and non-appearance of parties to a suit?

Introduction:
 Appearance and non-appearance of parties to a suit is an important aspect of civil
litigation. When a lawsuit is filed, both the plaintiff and the defendant have the option
to appear before the court and present their respective cases.
 Appearance means the voluntary submission to the jurisdiction of the court and the
willingness to abide by its orders.
 On the other hand, non-appearance means the refusal or failure to participate in the
legal proceedings.
 The appearance and non-appearance of parties have significant consequences on the
outcome of a case.
 Order IX of the Code of Civil Procedure lays the laws regarding the appearance of
parties and what are the consequences of the non-appearance of parties.

Appearance of parties

 The Civil Procedure Code (CPC) provides the legal framework for the appearance of
parties in a civil suit.
 Section 27 of the CPC states that every defendant, at the first hearing of the case, shall
appear either in person or by a pleader.
 A pleader is a person authorized to appear on behalf of the defendant. The appearance
can be either physical or through an authorized representative.
 The court has the power to adjourn the case if the defendant fails to appear at the first
hearing.
  In the case of Bhagwant Singh v. Commissioner of Income Tax, the Supreme Court
held that the appearance of a party before a court can be either physical or through an
authorized representative. The court stated that the appearance can be made by a
pleader, a registered agent, or a person authorized by the party to appear on its behalf.
The court further held that if a party appears through an authorized representative, the
representative must produce a power of attorney or other legal document that
authorizes him to represent the party.
Non-appearance of Parties:
 Non-appearance of parties can have serious consequences for the outcome of a case.
 When a party fails to appear in court, the court has the power to proceed ex-parte,
which means that the court will proceed with the case in the absence of the non-
appearing party. The CPC provides the legal framework for the non-appearance of
parties in a civil suit. Section 30 of the CPC states that if the plaintiff fails to appear
on the day of the hearing, the court may dismiss the suit. Similarly, if the defendant
fails to appear, the court may proceed ex-parte.
 In the case of R. Kuppuswamy v. Kandaswamy, the Madras High Court held that
when a party fails to appear before the court, the court has the power to proceed ex-
parte. The court stated that the non-appearance of a party does not affect the
jurisdiction of the court. The court further held that the party who fails to appear
cannot later challenge the judgment on the ground that he was not given an
opportunity to present his case.
 When neither the plaintiff nor the defendant appears before the court when the suit is
called for hearing, then the court is empowered to dismiss the suit under Rule 3 of
Order IX. The dismissal of the suit under this rule does not put a bar on filing a fresh
suit on the same cause of action as per Rule 4.

WHERE ONLY PLAINTIFF APPEARS: RULES 6, 10

 Rule 6 of the Code states that in cases where the plaintiff appears and the defendant
doesn’t, the plaintiff has to prove service of summon to the defendant.
 If the service is proved, the court may proceed ex parte against the defendant and may
pass a decree in favour of the plaintiff, if he is able to prove his case.
 Rule 10 states that where there are two or more plaintiff and one or more of them
appear and the others do not, the court may permit the suit to proceed as if all the
plaintiffs had appeared, or make such order as it thinks fit.
In Sangram Singh v. Election Commission (AIR 1955 SC 425), the court has stated that this
provision is confined to first hearing and does not per se apply to subsequent hearings.

WHERE ONLY DEFENDANT APPEARS: RULE 7 – 11

 According to Rule 7, where the defendant appears on the adjourned day and assigns a
good reason for his previous non-appearance, the court may hear him upon such terms
as the court directs as to cost treating as if he had appeared on the day fixed for the
appearance.
 Rule 8 states that where the plaintiff does not appear, and the defendant does and does
not admit the plaintiffs claim, wholly or partly, the Court shall pass an order
dismissing the suit. The Rule also enacts that if the defendant admits the plaintiff’s
claim as a whole or a part thereof, the court will pass a decree against the defendant
upon such admission and dismiss the suit for the rest of the claim.
 Rule 9 precludes the plaintiff thereafter from filing a fresh suit on the same cause of
action. He may, however, apply for an order to set aside the order or dismissal.
In Lachi Tewari v Director of Land Records (AIR 1948 SC 41), it was stated that if the court
is satisfied that there was sufficient cause for his non-appearance the court may set aside the
order of dismissal and fix a day for proceeding with the suit. Rule 9 (2) states that before
passing any such order, notice must be served to the opposite party.
 According to Rule 11, where there are two or more defendants and one or more of
them do not appears the suit will proceed and at the time of pronouncement of
judgement, the court may make such order as to the absent defendants as it thinks fit.

WHEN A SUMMON IS NOT SERVED

When a summon is not served on a defendant, the plaintiff may request the court to issue a
fresh summon or to take any other appropriate action. This situation is governed by Rules 2
to 5 of Order IX of the Code of Civil Procedure, which provide the following:
Rule 2: If the defendant is not present when the case is called for hearing, and it is proved that
the summon was duly served, the court may proceed with the case ex parte.
Rule 3: If the defendant is not present when the case is called for hearing, and it is not proved
that the summon was duly served, the court may postpone the hearing to another day, and
direct that fresh summon be issued.
Rule 4: If the defendant appears after an ex parte decree has been passed against him, he may
apply to the court to set aside the decree, and the court may do so if it is satisfied that the
summon was not duly served, or that he was prevented by any sufficient cause from
appearing when the case was called for hearing.
Rule 5: If a summons is returned unserved, the court may, if it thinks fit, order a fresh
summon to be issued, or may allow the plaintiff to proceed in any other manner authorized by
law.

Mention about ex parte decree

Sufficient Cause
The term sufficient cause has not been defined anywhere but as held in the case of UCO
Bank v. Iyengar Consultancy, it is a question which is determined upon the facts and
circumstances of the cases. The test to be applied for this is whether or not the party actually
and honestly intended to be present at the hearing and tried his best to do so. There are
several instances which have been considered as sufficient cause such as late arrival of the
train, sickness of the council, the strike of advocates, death of a relative of party etc.
The burden of proof that there was a sufficient cause of non-appearance is upon the
defendant
What is attachment? Explain the properties which are not liable for attachment and sale in
execution of a decree?
INTRODUCTION

 Attachment is governed by the Code of Civil Procedure (CPC), which lays down the
procedure for the attachment of property.
 Section 51 of the CPC provides that any property belonging to a judgment-debtor may
be attached and sold in execution of a decree.
 The term 'property' includes both movable and immovable property, and can include
things like money, shares, bonds, land, buildings, and vehicles.
 Attachment can also be made against property that is held by a third party, such as a
bank account or shares held by a brokerage firm.

ATTACHMENT PROCEDURE-
 The process of attachment begins with the filing of an application for attachment by
the judgment-creditor.
 The court then issues a notice to the judgment-debtor, informing them of the
application and giving them an opportunity to object to the attachment.
 If the judgment-debtor fails to object within the specified time, the court may proceed
with the attachment.

The attachment can be made in various ways, depending on the type of property that is being
attached. For example, if the property is movable, it may be physically seized by the court or
a court-appointed receiver.
If the property is immovable, such as land or a building, a notice of attachment is issued to
the relevant authority, such as the land records office, and the property is then deemed to be
under attachment.
However, not all properties are liable for attachment and sale in execution of a decree. The
law provides certain exemptions that protect certain types of properties from attachment and
sale, which are important for debtors to be aware of.
These exemptions are listed under Section 60 of the CPC, which provides that the following
properties are not liable to attachment and sale in execution of a decree:

1. The necessary wearing apparel, cooking utensils, beds, and bedding of the judgment-
debtor and his family.

2. Tools of artisans, agricultural implements, and other articles of like nature belonging
to the judgment-debtor and necessary for his personal use in his profession, trade, or
employment.

3. Necessary books of accounts and documents of the judgment-debtor.

4. A mere right to sue for damages.

5. Stipends and gratuities allowed to pensioners of the government or to employees of

local authorities, except when the judgment-debtor is liable for the payment of the
same.

6. The salary or wages of any labourer or domestic servant.

7. Any other property that the court deems to be necessary for the maintenance of the
judgment-debtor and his family.

The Supreme Court of India has also provided guidance on the properties that are exempt
from attachment and sale in execution of a decree. In the case of Usha Veerappa vs. Bank of
India, the Supreme Court held that the property of a judgment debtor that is exempt from
attachment and sale under Section 60 of the Civil Procedure Code cannot be attached or sold
in execution of a decree, even if it is not specifically mentioned in Section 60.

SEVERAL TYPES OF PROPERTY ARE LIABLE FOR ATTACHMENT AND SALE IN

EXECUTION OF A DECREE
 like lands, houses or other buildings, goods, money, banknotes, checks, bills of
exchange, hundis, government securities, bonds or other securities etc., and things on
which he has a disposing power.
 There is express mention of particulars which shall not be liable for attachment or
sale. The decree as mentioned in this section is only a money decree and it does not
include a mortgage decree.
 Therefore, it is important that the property not only belongs to the judgement-debtor
but also, he has disposing power on it.
 In M. Balarajan vs. M. Narasamma, it was held that the said house of the Judgment-
debtor was liable to be sold for execution of the decree as his contention of
agricultural produce was declined.

The procedure for attachment of movable and immovable property varies depending on the
jurisdiction, but in general, the following steps are typically involved:
For Movable Property:
 1. The creditor obtains a court order or decree for attachment of the debtor's movable
property.
2. The court-appointed bailiff seizes the movable property, which may be sold or
otherwise disposed of to satisfy the debt.
3. The debtor is given notice of the attachment and may have the opportunity to
challenge the attachment in court.
For Immovable Property:
1. The creditor obtains a court order or decree for attachment of the debtor's immovable
property, such as land or buildings.
2. The court-appointed bailiff serves notice of the attachment to the debtor and any
interested parties, such as tenants or mortgage holders.
3. The bailiff physically attaches a notice of the attachment to the property, which puts
any potential buyers or other parties on notice that the property is encumbered by the
debt.
4. The property may be sold or otherwise disposed of to satisfy the debt, subject to any
legal restrictions or conditions.
5. If the property is sold, the proceeds are used to pay the creditor's debt, with any
remaining funds returned to the debtor.

What is meant by issues? How issues are framed? State the powers of the court to amend or
strike out issues?