CHAPTER XXI
EXECUTION OF DECREES
General
345. Where disputes arise in the course of execution proceedings, the provision as to 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 considerable responsibilities in execution matters. The work of execution is carried out by the Court through its agents. It is essential, according to the scheme of the Code, that the Court should know fully and precisely how far its decrees are satisfied. The Court has the responsibility of preventing the sale of property in which the judgmetn debtor does not prima facie appear to have an interest; of seeing that property of a value far in excess of the amount of debt is not sold; of seeing that a reasonable price is realised and of securing that intending purchasers shall have the opportunity of knowing all that it is material for them to know concerning the property. As the sale is held by the Court, it must be conducted 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, every application for execution shall be made in writing in Form No. 6, Appendix E, and signed and verified.
348. As soon as an application for execution is presented, the date of presentation shall be endorsed thereon by the Clerk of the Court or such other Officer as may be appointed by the Court.
349. The next step is the examination of the application. This examination should be particularly directed to ascertaining :
(i) Whether it is in conformity with Form No. 6 in Appendix E, Schedule I of the 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 decree-holder has stated in grounds or given an affidavit stating the grounds for arrest in the application in case when he wants to arrest and to detain 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 paragraph of the judgment, indicating the names and addresses of all the parties to the suit, shall be considered sufficient for the purpose of initiating the execution of the decree.
A certified copy of the decree must, however, be produced for substituting the 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 movable property, the application is accompanied by an annexure showing the inventory of the property 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 its identification, and specifies the share or interest of the judgment-debtor, as required by rule 13 of Order XXI.
(xvi) Whether, in the case of an application for attachment of land assessed to the payment of revenue to the Government, it is accompanied by a certified copy of the current entry in the Record of Rights or Register of Mutations or Register to Tenancies in regard to such lands.
(xvii) Whether, where the application is by an heir of the deceased decree-holder a Succession Certificate is required.
350. The Officer examining the application for execution shall also verity the correctness of the particulars furnished by the applicant so far as they can be ascertained from the records of the Court viz., Register of Suits, Register or applications for execution and previous Darkhast proceedings. He should also ascertain whether any stay order is received from the Appellate Court.
351. If the Officer examining the application (darkhast) finds that it complies with all the requirements and is correct in all respects, he should make an endorsement on the Darkhast “Examined and ordered to be registered” with the date and his signature. If he thinks that the Darkhast should be amended or corrected, he should refer the matter to the Judge 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 Registers should be maintained, one for applications for execution of decrees in Regular Suits, and the other for Applications for execution of decrees in Small Cause Suits.
353. Every application for execution of a decree should be placed before the Judge for 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 the Judge sits on deputation for obtaining orders on the application for execution of decree within the stipulated time mentioned above. For this purpose, the Clerk of the Court or the Nazir should not be sent but only the concerned clerk should be sent.
354. Interlineations, erasures or corrections in the application should be initialed by the party or his lawyer, and by the Officer reiving it.
355. Applications for execution of decrees are proceedings in suit and do not require fresh Vakalatnamas unless the engagement has been terminated by the lawyer or the party engaging him. A memo of appearance should, however, be filed by the lawyer stating 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 Court shall pass an order directing the execution of the decree or the issue of a notice under rule 22 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 above paragraph should be treated as the date of hearing of the application and the application would be entered on the notice board accordingly.
358. When a decree is ordered to be executed and process issued, the Court should see that it is executed and, if it is not executed, ascertain the reasons for its non-execution. 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, such order may also provide for costs. The final order may be, for example, the dismissal of the application, as provided by Order XXI, rule 57, or an order that no further proceedings are required or can be taken. An order that the application is struck off or that it is consigned to the record is not a satisfactory order.
No final order should be made in any case unless the decree-holder or his lawyer is present, or has had an opportunity of appearing and applying for an adjournment or for taking further proceedings.
When a darkhast is disposed of, an endorsement should be made on the copy of the decree as to in what manner and to what extent the decree is satisfied. The endorsement should be signed by the Judge and not by any ministerial officer of the Court.
General Instructions for the conduct of business in execution proceedings
360. To prevent delay in executing processes, and to avoid post-ponement of an attachment or sale consequent on the temporary absence of a Civil Judge or the closing of his Court at other times than during vacations and sanctioned holidays, the District Judge should direct the Civil Judge who may be appointed under section 37 of the Bombay Civil 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 may refuse to entertain an application for execution, unless the application is accompanied by a certified copy of the decree. (See Order XX, Rule 11(3)). But if the application is made to a Court, to which a copy of the decree has been sent under rule 6 of Order XXI of the Civil Procedure Code, a fresh copy of the decree need not be produced with the application.
362. The decree holder is not entitled to receive back the copy of the decree until the 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 and costs in respect thereof should be included in the costs of the applications. If the copy is not returned to the decree-holder, it should be kept with the proceedings and eventually sent with them to the record room.
363. A Roznama or diary should be kept for all execution proceedings to which, so far 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. I given in the Civil Manual, 1986, Volume II. In this Register should be entered all applications for execution including applications made in decree transferred from other Courts 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 the following matters should be entered :-
(i) the first order regarding issue of notice under Order XXI, rules 16, 22 and 37.
(ii) the Orders for issue of process in execution ; and
(iii) the final order disposing of the application together with the order regarding costs.
365. A Register of Decrees received for execution from other Courts should be kept in Form No. 1-A given of this Manual, Volume II. In this register should be entered serially and date-wise all decrees received for execution from other Courts. The serial number of the decree in this register should be written out boldly and conspicuously on the certificate received along with the decree and all these decree with certificates should be kept i a file in their serial order until an application is made by the decree holder for execution the decree.
366. Separate registers should be maintained for applications for the execution of decrees made by a Court in the exercise of its Small Cause Court jurisdiction and of decrees made in the exercise of its Regular jurisdiction.
367. When an application for executing a decree made in the exercise of the Small Cause Court jurisdiction is made to a Court for execution the same on its Regular Side and the same is granted, the application should be registered in the Register of applications for Execution maintained on the Regular Side, Similarly, when an application for the execution of a decree made in the exercise of the Regular jurisdiction is made to a Court for executing the same on the Small Cause Side and the same is granted, the application should be registered in the Register of Applications for Execution maintained 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 the exercise of the Small Cause Court Jurisdiction to its Regular Side and vice versa, it shall not ordinarily be necessary to send the documents mentioned in Order XXI, rule 6 of the Code 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 is paid into Court, notice of such payment shall be given to the decree holder either by the judgment debtor or at his instance by the Court, such notice issued by the court may be in Form 3 of Appendix H, Schedule I of the Code. The Court should also take such steps as it conveniently can, to prevent money due to decree-holders from remaining unpaid and lying 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 judgment debtor or his lawyer is not available to pay the process fees for the notice required to be issued 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 Court should be informed of all payments and adjustments made out of Court. Bailiffs who have executed or attempted to execute process in execution of a decree should be required to report all payments or adjustment which come to their notice. Nazirs should take special care to have this direction carried out. When a payment or adjustment comes to the notice of the Court which has not been certified by the decree holder, whether brought to its notice by the judgment debtor or not, it is open to the Court to ascertain the facts from the lawyer of the decree holder, if he is represented by one, or to issue notice to the decree holder, to show cause why he should not certify it. This notice should be in Form 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 is sent should be entered in the Register of Suits, and also in the Register of Application for Execution if an application for execution be then pending.
371. The payment of decrctal amounts to the Court or to the decree holder by money order should be encouraged.
372. Where the decrctal holder has asked that the money should be sent by money order or by a bank draft the Court may, after making all necessary and lawful deductions send 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 the
amount deposited in the Court at in
connection with
Dated : (Stamp)
(Signature of Payee.)
373. In all the Subordinate Courts, the Judges should as a general rule make payments of decretal amounts to decree holder or their lawyers on all working days. The rule may be departed from in Caset where the District Judge considers that the local conditions make daily payments impracticable. In all such cases the District Judge should report the grounds of his opinion to the High Court.
374. In addition to the usual orders, endorsements and reports, each paper filed in an execution proceeding should bear an endorsement showing the number allotted to it and entered in the Roznama and the number of the application for execution. When the execution is completed, all the papers should be placed with the Roznama so as to form a complete case for record.
375. When process for execution, it may be signed by the Clerk of the Court or other officer of the Court appointed in that behalf (O. XXI Rule 24). The forms prescribed by the Code are in Appendix E, others will be found Volume II. In case of doubt 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 practice of the Court, unless the Judge orders an exception to be made. The issue of process for execution and the supervision of the work of execution should be in the hands of the Nazir 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 application for such execution should not be struck off the file, but adjourned pending the final order of the Court staying execution.
378. The orders mentioned in paragraph 364 above as requiring to be entered in column 3 of the Register of application for execution and all other judicial orders which cannot be endorsed on separate application or exhibited in the proceedings, should be endorsed 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 Order XXI 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 legal representative of a deceased judgment debtor should be made in Form No. 2 of Volume II.
Execution by other Courts.
381. (i) The law on this subject is contained in sections 38 to 46 and rules 3 to 9 of Order XXI of the Code. The forms to be used are Nos. 2,3,4 and 5 of Appendix E of Schedule I of the Code. Decreases may be sent to Courts in this country or to courts in other countries.
(ii) The documents mentioned in rule 6 of Order XXI should be sent to the foreign 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 the execution by Courts outside India of decrees of Indian Courts, is possible only if specific provision has been made in that behalf. The ordinary rule is that the Courts of one country do not execute the decrees of the Courts of another and that to enforce a foreign judgment it is necessary to bring a suit.
383. (i) Sections 43, 44 and 44-A, Civil Procedure Code provide for the execution by Indian Courts of decrees passed outside India.
(ii) Section 43 provides for the execution of decrees passed by (a) Civil Courts established in such parts of India to which the Code does not extend as referred to in sub-section (3) of Section 1 of the Code, and (b) Courts which have been established or continued 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 Central Government.
(iv) Section 44 provides for the execution of decrees passed by Revenue Courts in places to which the Code does not extend.
In exercise of the powers conferred by that section, the Government of Bombay have declared by Notification No. 8109/5/11-B, dated 4th February 1954, that the decrees of Revenue Courts situate in the territories specified below may be executed in 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 44-A applies to decrees of superior Courts of the reciprocating territories. The following countries or territories specified in column 1 of the Schedule appended hereto have been declared to be the reciprocating territories for the execution of decrees of the superior Courts specified in column 2 of the said schedule :
Schedule
Country
|
Courts
|
Government Authority
|
| 1. United kingdom | (1) House of Lords (2) The Court of Appeal (3) High Court of England (4) The Court of Session in Scotland. (5) High Court in Northern Ireland. (6) The Court of Chancery of the Counrty Palatine of Lancaster. (7) The Court of Chancery of the Country Palatine of Durham. | Government Notification. Ministry of Law, No S.R.O. 399 dated 1st March 1953, as amended by G.S.R. 201, dated 13th March 1958. |
| 2. Aden | The Supreme Court | Government Notification, Ministry of Law, No S.R.O. 183 dated 18th January 1956. |
| 3. Fiji | Supreme Court | Government Notification, Ministry of Law, No S.R.O. 1959 dated 22nd March 1954. |
| 4. Republic of Singapore | High Court | Government Notification, Ministry of Law, No F-12 (4)/ 68-J dated 17th June 1968. |
| 5. Federation of Malaya | 1. High Court. 2. Courts of Appeal | Government Notification, Ministry of Law, No S.R.O. 4, dated 3-1-56. |
| 6. Sikkim |
1. The High Court of Sikkim in exercise of its Civil Jurisdiction. 2. Any other Civil Court in Sikkim whose jurisdiction is not subject to any pecuniary limit provided that the judgment or the decree sought to be executed is sealed with a seal showing that the jurisdiction of the court is 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 5 years with effect from the 3rd May 1967. |
| 7. Trinidad and Tabago | 1. Supreme Court of Judicature (a) High Court ; (b) Court of Appeal. 2. Industrial Court; and 3. Income Tax Appeal Board. |
Government Notification, Ministry of Law, No F-12 (3)/ 68-J dated 31th July 1968.
Note - In force with effective from 1st September 1968. |
| 8. Newzealand, the Cook Island (Inluding Niue) and the Trust Territory of Western Samoa. |
The Supreme Court of Newzealand.
|
Government Notification, Ministry of Law, No S.R.O. 3282 dated 15th October 1957.
|
| 9. Hong Kong | 1. Supreme Court 2. Victoria District Court 3. Kowloon District Court 4. Faniling District Court |
Government Notification, Ministry of Law, No G.S.R. 2096, dated 18th November 1968.
|
| 10. Papua and New 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 the Government of the United Kingdom, which revokes and replaces with certain modifications the Reciprocal Enforcement of Judgments (India) Order, 1953, provides for the execution in the United Kingdom of the decrees of the following Courts of the territories 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 Foreign Judgment's (Reciprocal Enforcement Act, 1933), is sealed with a Seal showing that the jurisdiction 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 and Andaman and Nicobar Islands.
386. Section 45 empowers a Court in any State to send a decree for execution to any court established by the authority of the Central Government outside India to which the 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 grant execution without obtaining a certificate of non-satisfaction from the Court to which such decree was transmitted. After the grant of such certificate, the Court to which the decree was 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 of immovable property and distinguish between delivering possession of property which is in possession of a person bound by the decree and of that which is not. The action to be taken by the Court in the two classes of cases is entirely different. Therefore, before taking action, the Court should ascertain from the decree holder whether he alleges the property to be in the actual possession, that is, in the occupation of a person bound by the decree. The Court should not issue process under rule 35 or 36 of Order XXI on a bare application to be placed in possession. The decree holder must be called upon to state specifically in his application the kind of possession which he wants.
(ii) In giving possession of immovable property, Form No. 11 in Appendix E of Schedule I may be used for authorising the Officer of the Court to give actual possession or with suitable modifications for affixing a copy thereof according to sub-rule (2) of rule 35 or rule 36 of Order XXI.
389. When any building or enclosure of which possession is to be given in execution is found locked, a notice should ordinarily be given to any person bound by the decree who is in possession of such building or enclosure requiring him to unlock it within a given time. If on the day so appointed it is still locked, it may be broken open and given into the possession of the decree holder or purchaser, by following the procedure 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 of the house of judgment debtor, there is any movable property therein, and the judgment debtor is either absent at the time or unwilling to take such property in his custody or the owner of such movable property is not known, the bailiff or officer concerned should remove the property to the Court after making a proper inventory thereof, in the presence of 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 is furnished by the Judgment debtor. But the proviso to Rule 29 of Order XXI enables the Court to grant stay without requiring security in case of decrees for payment of money only after recording its reasons for so doing. The forms given in the Code for security bonds are Nos. 2 to 4 of Schedule I, Appendix G of the Code. The fact that the only forms of security bonds given in the Code are forms Nos. 2,3 and 4 in Appendix G of Schedule 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, and if he, in the exercise of that discretion, does not consider that security of the nature for which forms Nos. 2,3 and 4 of Appendix G of Schedule I of the Code are appropriate should be furnished, he may require security of any other kind to be furnished and for security of this nature forms Nos. 3 and 4 of Volume II and the form of Volume II should be used. In proper cases, the security required should take the form of money deposited in Court.
(ii) Form No. 5 given in Volume II is for use as a notice to show cause against stay of execution ; for execution should not as a rule, be stayed without giving the other party an opportunity of showing cause against the stay. An exception to this general rule is provided for in sub rule (4) of rule 5 of Order XLI. Where an order for stay of execution is granted ex-parte under this provision, the stay should only be for a limited time 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 the surety to show cause why the bond should not be enforced. His liability is provided for a section 145 of the Code.
(iv) Form No. 6 at page 144 of Volume II is for use when security is taken under sub rule (3) of rule 26 of Order XXI for stay of execution by a Court to which the decree sought to be executed is transferred.
(v) Where the High Court makes a stay order to take effect upon the app-licant furnishing security to the satisfaction of the lower Court, it is the duty of the Court concerned to take the required security, whether or not an application for the execution of the decree under appeal has been filed.
(vi) The Officer of the Court entrusted with duty of taking security bonds from sureties or parties should take sufficient care to see that the security bonds are properly worded.
All Judges should impress upon the officers of their Courts that it is their duty to see that such security bonds should be worded in conformity with the Form prescribed 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 not empowered to grant stay of execution upon application by the Judgment debtor pending orders to be obtained by him upon a second appeal made to the High Court.
Arrest and detention of Judgment-debtor
393. The law on this subject is to be found in section 55 to 59 of the Code and rules 37 to 40 of Order XXI. It is necessary to bear in mind that in cases where in the total amount of decree does not exceed Rs. 500/-. order for detention cannot be made; and in 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 judgment-debtor arrested in execution of a money decree that he may apply to be declared an insolvent (section 55, Clause 3). Form for use in proceedings for the arrest of a judgment-debtor 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 be given an opportunity of communicating his arrest to his superior.
395. The following rules have been made under the old Code and are in force and need 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, he is engaged in the performance of public duties, his withdrawal from which would be attended with danger or manifest public inconvenience, the arresting Officer should first acquaint the immediate superior of the employee about to the arrested or the person who has 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 the peace. The expenses should be paid by the decree holder and added to the sum levied in execution.
(ii) Whenever a Court has occasion to issue a warrant for the arrest of any person in the employment of a Railway Administration, the Court shall enter in the warrant a direction to the bailiff or process server to whom it is entrusted for execution requiring him before making the arrest, if the person to be arrested is on duty, to acquaint a 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 Railway Administration, the words “official Superior” shall be deemed to include a railway official 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 of the Telegraph Department, notice shall be given to the Superior Officer designated in column 2 of the subjoined list for the period specified in column 3 of the list :-
| Division to which the employee 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 been fixed under section 57 of the Code of Civil Procedure, 1908 in supersession of all rules or orders relating to subsistence allowance of Judgment debtors in force in any part of the State including the orders contained in Government Notification, Law and Judiciary Department, No. CPC 1175/739, dated the 27th May 1976.
| Superior Class daily rate | Ordinary Class daily rate | |
| Greater Bombay and the Cities of Pune, Nagpur, Nasik, Aurangabad, Kolhapur, Jalgaon, Solapur and Thane. |
25
|
22
|
| Other places in the State |
20
|
18
|
Note :- The above amendments shall come into force on the date of publication in the Official Gazetee.
For the purpose of subsistence allowance under this Paragraph, Judgment-debtors according to their social status, education and mode of living shall be divided into the 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 Court is released without being sent to the Civil Jail (in consequence of payment or some compromise having been entered between him and the opposite party), the money paid into 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 to cases 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 in which the assistance of the Court may be required for execution of a decree. The attention of the Courts is drawn in this respect particularly to the provisions of sections 51 and 55 to 59 and rules 37 and 40, Order XXI, (as amended under the Rules framed by the High Court under Section 122, C.P.C.)
Before the Court can issue a warrant of arrest or a notice to the judgment debtor under Order XXI, rule 37, it has to satisfy itself that the total amount of the decree under the execution exceeds Rs. 500 and that the judgment debtor is liable to arrest in pursuance of the application. When the execution of a decree for the payment of money is sought by arrest of detention of the judgment debtor, the Court must issue a notice to the 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 judgment debtor 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, the Court 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 of Appendix E.
SCHEDULE I
Before arrest is ordered, provision for the debtor's subsistence should be made, as required by rule 39 of Order XXI. What is required to be done when the judgment debtor is before the Court, is laid down in rule 40, Order XXI, as amended under the Rules framed by the High Court under Section 122 , C.P.C. After holding necessary enquiry under the aforesaid rule 40 of Order XXI, if the Court is inclined to detain the judgment debtor in the Civil prison, it is necessary to bear in mind that the total amount of decree under execution must exceed Rs. 500 and that the period of detention should 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 of freedom from arrest during the continuance of the Session of the House of which they are members 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 Legislature shall be made within the precincts of the House without obtaining the permission of the Presiding Officer.
To enable the Presiding Officer to decide whether he should grant or with old permission for arrest, within the precincts of the House, the Court concerned, when making a request for such an arrest, should attach a letter of request to the warrant containing a concise statement setting out the grounds for the request and explaining why it is desirable that the arrest be made within the precincts of the House and why the matter 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 accompanying Government of India, letter, Ministry of Home Affairs, No. 5051, Judicial, dated the 17th January 1954, regarding the legal position of persons belonging to the Armed Forces in the matter of arrest for debt, attachment of their pay and allowances and priority in disposal of litigation involving them, is re-produced for the guidance of subordinate Courts :-
(1) Cases have occurred where civil courts have issued orders attaching the pay and allowances of persons belonging to the Armed Forces. There have also been cases 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 in regard to exemption from arrest for debt and attachment of pay and allowances and other property of persons belonging to the Armed Forces and the priority to be given by civil Courts for the hearing and final disposal of any suits or other proceedings in which they may 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 and privileges are in addition to any other rights and privileges conferred by any other law for the time being in force.
(3)(a) Immunity from attachment, Under section 28 of the Army/Air Force Act, no arms, clothes, equipment, accoutrement's or necessaries of any person subject to either of these Acts nor any animal used by him for the discharge of his duties can be seized, nor can his pay and allowances or any part thereof be attached by direction of any civil or revenue court, or any revenue Officer in satisfaction of any decree or order enforceable against him.
(b) Immunity from arrest for debt - Section 29 of the Army/Air Force Act provides that no person subject to either of these Acts, so long as he belongs to the Armed Forces, can be arrested for debt under any process issued by or by the authority of a Civil or revenue Court or a revenue Officer. Where in spite of the above, any such arrest is made, the Court or the revenue Officer concerned, on receipt of a complaint by such person or by his superior Officer to that effect, may discharge him and award reasonable costs to the complainant. The costs may be recovered in like manner as if they were awarded to him by a decree against the person obtaining the process. No Court fees are payable for the recovery of such costs.
(c) Immunity of persons attending Court martial from arrest : Under section 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 legal practitioner or agent, and no witness acting in obedience to a summons to attend a Court martial, while proceeding to, attending or returning from a court martial is liable to as arrested under civil or revenue process. If any such person is arrested under any such process, he may be discharged by order of the Court martial.
(d) Priority in respect of Army/Air Force personnel's litigation - Under section 32 of the Army/Air Force Act, on the presentation to any Court by or on behalf any person subject to either of these Acts of a certificate, from the proper military/air force authority, of leave of absence having been granted to or applied for by him for the purpose of prosecuting or defending any suit or other proceeding in such Court, the Court shall, on the application of such person, arrange, so far as may be possible for the hearing and final disposal of such suit or other proceedings within the period of the leave so granted or applied for. The certificate from the proper military/air force authority shall state the first and the last day of the leave or intended leave, and set forth a description of the case with respect to which the leave was granted or applied for. No fee is payable to the Court in respect of the presentation of any such certificate, or of any application by or on behalf of any such person, for priority for the hearing of his case. Where the Court is unable to arrange for the hearing and final disposal of the suit or other proceeding within the period of such leave or intended leave as aforesaid, it shall record its reasons for its inability to do so, and shall cause a copy thereof to be furnished to such person on his application without any payment whatever by him in respect either of the application for such copy or of the copy itself. If in any case a question arises as to the proper military/air force authority qualified to grant such certificate as aforesaid, the Court shall refer the question at once through the authority granting the certificate to -
(i) an Officer having power not less than a Brigade or equivalent Commander in the case of military personnel ;
(ii) an Officer having power not less than a Group Commander or equivalent Commander in respect of air force personnel. The decision of the Officer so referred to shall be final.
(4) Persons subject to the Army and Air Force Acts who are entitled to the privileges 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 Reserve when called out for, or engaged in, or returning from training or service;
(d) Persons belonging to the Indian Supplementary Reserve Forces when called 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 embodied or attached to any regular forces;
(g) persons holding commissions in the Army in India Reserve of Officers and Officers appointed to the Regular Reserve of Officers when ordered on any duty or service for which they are liable as such members;
(h) persons belonging to the Indian Air Force Volunteer Reserve in the circumstances 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 active service, in camp, on the march at any frontier post specified by the Central Government are employed by, or are in the service of, or are followers of, or accompany any portion of the Regular Army/Air Force.
Note : The provisions of paragraph 402 shall apply mutatis mutandis to the cases of personnel 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 Code and rules 41 to 57 of Order XXI, Section 60 mentions the property which is liable to be attached, and the property not so liable. Rule 50 of Order XXI states the law in respect of a decree against a firm.
(b) The following extract from the Government of India, Home Department, Notification No. 186/37 - Judicial, dated the 2nd October 1940, as amended from time to time and as amended last by Government of India, Ministry of Home Affairs, Notification No. 54/1/63-Ests-(A) dated the 20th January 1965, is reproduced for the guidance of the Courts :
In pursuance of clause (1) of the proviso to sub-section (1) of Section 60 of the Code of Civil Procedure 1908 (Act V of 1908) the Central Government is pleased to declare that the following allowances payable to any public officer in the service of the said Government or any servant of a federal Railway or of a cantonment authority or of the 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 house-rent 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 1068/3261-H dated the 14th August 1970, issued by the Government of Maharashtra, Law and Judiciary Department, is reproduced for the guidance of the Courts,-
In exercise of the powers conferred by clause (1) of the proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908, (V of 1908), and in supersession of the Government of Bombay Notification, Home Department, No. 9657/4, dated the 5th December 1945, the Government of Central Provinces and Berar Notification, Judicial Department, No. 176/546/XIX-45, dated the 28th January 1947, and any other Notification 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 following allowances forming part of the emoluments of any servant of the Government of Maharashtra shall be exempt from attachment in execution of a decree, namely :
(1) All kinds of traveling allowances.
(2) All house-rent 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 hill stations.
(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 of living.
(7) Portion of dearness allowance treated as dearness pay for the purpose of pension and gratuity.
(8) a foreign allowance or, in the case of heads of diplomatic missions frais de representation, assigned to officers serving in post abroad.
(9) Children's Education Allowance.
404. Attention is invited to rules 46-A to 46-K of Order XXI, Civil Procedure Code, as amended by the High Court under section 122 of the Code of Civil Procedure Code, 1908, which lay down the special procedure to be followed for investigation and determination of the liability of the garnishee in execution proceedings in which debts have been attached.
405. The Notice issued under Order XXI, rule 52 of the Code of Civil Procedure for attachment of money or other property lying in the custody of the Court should not be served on the Nazir but on the Court.
406. Attachment may be made either by seizure; or by order prohibiting the debtor or other person from dealing with the property except in a particular way; or by order charging the debtor's interest in the partnership property and profiles with payment of the decretal amount and appointing a receiver. After it is attached property cannot lawfully be 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 when the decree is for the payment of money the decree holder may apply for an order that certain persons be orally examined as to the means the judgment debtor has of satisfying the decree (Order XXI, rule 41). A form of notice for the purpose is given make such an inquiry. But where any party to an execution proceeding is at a disadvantage owing to ignorance, poverty, want of proper legal advice or other cause, it is the duty of Judge, as far 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 or in some other way. For this purpose, the Court may require the decree holder to state the mode 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 Order XXI and other modes of attachment are described in rules 44 to 49 and 52 to 54, Rule 49 gives an instance of a case in which a receiver may be appointed. The appropriate forms will be found as Nos. 8,9 and 16 to 26 in Appendix E. If attachment is to be made by another 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 (See e.g. Forms 8,9 and 20 of Appendix E). This does not, however imply that it must necessarily be addressed and given for execution to a bailiff. The expression used in rule 43 of Order XXI is “attaching officer” and rule 3 of Order XLVIII allows such variations in the forms as the circumstances of each case require. Therefore, it is open to the Court to 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 in pursuance of Order XXI, rule 48, sub rule (1) appointing officers to receive notices of orders attaching the salaries or allowances of public Officers.
412. Rule 25 of Order XXI prescribes the manner in which an officer entrusted with the process for execution is to make a return. The report whether the process has been executed or not should be complete. It should show amongst other things whether there has been any payment, satisfaction or adjustment of the decretal debt and if so the amount or the nature thereof. The Nazir of the Court or other officer entrusted with this duty should scrutinize the report and papers submitted by the attaching officer and satisfy himself as to all matters needing elucidation. If the officer is unable to execute the process, the Court or the Nazir empowered by the Court is bound to examine him and, if necessary, 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 Court should be recorded or noted both in the Register of Suits and in the Register of Applications for Execution. (See paragraphs 368, 369 and 370).
413. A bailiff attaching movable property under rule 43 of Order XXI should furnish to the judgment debtor or other person, from whose possession the movable property 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 Court finds that the property to be attached by him is already under attachment by the Revenue authorities, he should refrain from actually attaching the property and should report to the Nazir. But, in order to satisfy the attaching officer and the Court that there is a bona fide attachment by the Revenue authorities, the Patil of the village should be required to give certificate to that effect which should state the amount of the Government demand. The attaching officer should at the request of the Patil (to be noted on the certificate) wait for not 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 are still 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 of the Code of Civil Procedure shall ordinarily be removed and conveyed by the attaching officer, or by his subordinates or by persons specially engaged by him, for the purpose, to the Court premises or other appointed place, and there kept under due custody till sold or otherwise disposed of according to law.
(ii) In cases where it is found more convenient so to do, the property may be handed over to the judgment creditor under proper security, for removal and conveyance to the Court premises, or other appointed place, for the purpose specified in rule (i).
(iii) When the property is of such a nature that, in the opinion of the attaching officer, or his subordinate, its removal to the Court premises or other appointed place, is impracticable, or can only be effected as a cost out of proportion to its value, the attaching officer shall report his opinion to the Court and, pending receipt of the order of the Court, shall arrange for its proper maintenance, guarding and custody at the place at which 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 appointed place, or sanction its detention at the place at which it has been attached or elsewhere under such provisions as to its maintenance, guarding and custody as it thinks fit.
(v) Before making any order for the attachment or livestock, or other movable property, or at any time after any such order has been passed, the Court may require 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 other appointed place, and its maintenance guarding and custody till arrival thereat ;
(b) or the maintenance, guarding and custody of the property at the Court premises or other appointed place, till it is sold or otherwise disposed of;
(c) for the maintenance, guarding and custody of property, at the place at which it was attached, or elsewhere.
In case of the failure to deposit such sum within the time required by the Court, the Court may either refuse to issue, or may cancel, the order of attachment as the case may be.
(vi) An account of the expenses actually incurred shall, on demand being made on or before the date of the sale, be furnished to the attaching creditor and to the person whose property was attached, and that amount that the Court, after hearing their objections to the account, if any, made within three days after furnishing the same, finds to be properly due, shall be deducted as a first charge from the proceeds of the sale of the property and paid to the attaching creditor along with any balance that there may be of the deposit.
(vii) If, in consequence of the cancellation of the order of attachment, or for any other reason, the person whose property has been attached becomes entitled to receive back the live stock, or other property attached, it shall be given to him on payment of all charges found by the Court to have been properly incurred which have not been defrayed, or for the defrayal of which no money has been deposited by the attaching creditor and in default of his paying the same within the time prescribed by the Court, the property 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 the sale proceeds and of the property shall be delivered to him.
416. Civil Judges may refuse to attach cattle if the attaching creditor does not pay or arrange for sufficient amount for the proper custody and sustenance of the cattle between the period of attachment and sale.
417. The mode of attachment of immovable property is described in rule 54 of Order XXI, and the Form No. 24 of Appendix E. The enquiries essential before such an order is made have been described.
418. Rule 55 of Order XXI provides that where immovable property has been attached, the withdrawal may be proclaimed at the judgment debtor's expenses. This is the only express provision as to notifying withdrawal of attachment but such withdrawal may be notified by appropriate notice at the cost of the Judgment- debtor in other cases also. For example, the Judgment-debtor might wish to have notice sent of withdrawal of an attachment made under rule 46 or rule 48 or rule 53 of Order XXI. The form prescribed for proclamation notifying withdrawal of attachment is Form No. 8 given at page 105 of Volume II.
419. Before a final order is passed in an attachment proceeding, disputes frequently arise, and the procedure for disposing of these disputes is provided for in rules 58 and 59 of Order XXI.
No appeal lies from an order refusing to entertain the claim or objection to the attachment of the property in dispute under sub-rule (1) of rule 58, Order XXI, on the ground that it is not liable for the same. Instead, a suit will lie against it. In the absence of institution and result of a suit, if any, against it for establishment of the right to such property, such order is conclusive. [sub-rule (5) of rule 58, Order XXI C.P.C.]
Appeal, however, lies against the order determining the questions relating to right, title or interest in the property in dispute, and relevant to the adjudication of the claim or objection to the attachment of such property passed under sub-rules (2) and (3) of rule 58, Order XXI. In the absence of appeal and the result thereof such order has the same force, as if it were a decree [sub-rule (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 attachment under any decree or order of any Court in respect of any debt or liability incurred by the member or the exempted employee.
Sale
421. Attached property should not be put to sale without an order for sale under rule 64 of Order XXI. No order for sale should be made unless the statement required by sub-rule (3) of rule 66 of Order XXI is furnished. This statement must be signed and verified in the same manner as a pleading and must contain, as far as the decree holder can ascertain the information set out in sub-rule (2) of rule 66 of Order XXI. A form of warrant of sale of property is given in Form No.27, Appendix E. An order of sale is also required where mortgaged property is to be sold, under a decree in a mortgage suit though the property has not been attached.
422. After an order of sale is made, notice must be issued to the decree-holder and the 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 attachment under rule 54, order XXI, a notice need not be issued to the Judgment-Debtor for settling the terms of the proclamation [proviso to rule 66(2) Order XXI], if, by an, Order under sub-rule (1-A) of rule 54, Order XXI, he is bound over to attend Court on a ;specified date 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 the proclamation. What the proclamation must contain is stated in rule 66 of Order XXI and the Form No. 29 of Appendix E. The Court should ascertain the liabilities and claims against the property after careful scrutiny of Extracts from the Records of Rights and City Survey Register. Other things which the Court considers material for a purchaser to know in order to judge the nature and value of the property must also be ascertained and specified in the proclamation.
424. The enquiry specified in paragraph 423 must be as through as possible, for the Code casts on the Court the duty of ascertaining the facts to be entered in the proclamation. If the decree-holder refuses to take such steps, or call such witnesses as the Court considers necessary to enable it to ascertain the required facts, it is open to the Court to decline to issue the proclamation of sale.
425. Under sections 287 and 652 of the old Code, the High Court framed certain rules, which in so far as they are consistent with the new Code are still in force. So for as they are so consistent they are as follows :
(i) Where the Record of Rights has been completed, the extract to be put in under section 238 of the Civil Procedure Code should be an extract from the register of that Record, and a copy of the entry, if any, in the Register of Mutations and the same should 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 examine the judgment-debtor or some person acquainted with the circumstances as to his interest in the property and especially as to his share therein, if he is a Hindu, and as to the encumbrances, if any existing thereon (See Form No. 28 Appendix E of Schedule I).
(iii) The Court may require the judgment-debtor to produce any title deeds relating to the property which may be in his possession or power and may retain such documents till the property is sold or released from attachment. It shall with the certificate of sale deliver to the purchaser such of them as relate solely to the property sold and on his demand and at his cost shall give him copies of such of them as relate to the property sold as well as other property. It shall return all documents which may not under this rule be delivered to the purchaser to the person by whom or on whose behalf they shall have been produced.
When any encumbrance on the property shall be discharged from the sales proceeds, the Court shall have like power to direct the production of title-deeds by the encumbrancer and to deliver them to purchaser or to furnish him with copies thereof and to return them.
(iv) The Court shall give notice on the board of the date on which it proposes to hold an enquiry under section 287, and may summon any person likely to afford material information to attend and give evidence and produce any documents relating to the property which may be in his possession or control. Such documents shall be returned after inspection, the Court retaining copies, if it thinks necessary, prepared at the applicant's expense.
( A form of notice of the enquiry to be affixed in the court is given as No. 9 of Volume II).
(v) All costs of the enquiry shall be advanced by the applicant. They shall be treated as costs in the execution proceedings and may be apportioned as the Court thinks fit.
(vi) It shall be borne in mind that the enquiry under section 287 is independent of any enquiry consequent on an application made under section 278, Civil Procedure Code. The object of the enquiry under section 287 is merely to collect particulars 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 not determinative between the parties.
(vii) The enquiry shall be completed as soon as possible. When it is finished, 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 judgment-debtor it is desired to sell the interest of any other member of the family (e.g., that of a minor son or brother) the name of such member 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 be appended a list of all claims for which, in the opinion of the Court, there is a reasonable and probable cause - such as claims of co-partners, or reversioner's in the case of Hindu females, 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 under section 289, duplicate shall also be sent to the Mamlatdar of each taluka in which any portion of the property is situated. The Mamlatdar shall post such copy in his Kacheri in a conspicuous place.
(ix) If after the proclamation has been settled, any matter is brought to the notice of the Court which it considers material for purchasers to know, it shall cause the same to be notified when the property is put up for sale.
(x) So much of the foregoing rules as may be applicable shall be followed in case of application to sell movable property attached by prohibitory order so that the description of such property may be as complete as possible.
(xi) In the case of other movable, the Court may make such inquiries as it thinks 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 movable and immovable property attached in execution of the same decree.
(xiii) As regards all such sales of immovable property, the Court in fixing the place of sale shall consult the wishes of the parties, preference being given to those of the judgment-debtor. 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 of opinion that it is likely to fetch more if sold at the Court house.
(xiv) All sales held at the court-house shall be conducted by a responsible officer and shall take place on a fixed day of the week * which the court shall make generally known. Care should be taken correctly to specify in the proclamation the time 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 be issued, the adjourned date and hour should be notified for the information of the public by taking the following steps. When the sale is held in the Court precincts a notice shall be put up on the Notice Board of the Court notifying the adjourned date and hour of the sales. When the sale is held at any place outside the Court precincts, a notice notifying the adjourned date and hour shall be affixed if the property to be sold is immovable, on some conspicuous part of the property itself, and if the property is movable on some conspicuous part of the property in which it is kept. When the propertyis involved is of considerable value, the adjourned date and hour shall, as far as possible, be published also in one of the local newspapers.
427. Whenever the lands of a minor have been placed in charge of the Collector, a notice of an intended sale should be given to the Collector, being either delivered to him or sent by registered post.
428. Civil Judges have a discretion in postponing the sale of attached property, if they consider that by reason of exceptional circumstances a reasonable price will not be realised.
429. When immovable property is to be sold and it is intended to take preliminary bids at the site of the property or the village where it is situated and the final bide at the Court-house, it should be so stated in the proclamation of sale.
430. When the necessary particulars to be entered in the proclamation have been ascertained and settled, the proclamation must be published. (See Form No. 30 or Appendix E of Schedule I).
431. The law relating to the sale is stated in rules 68 to 77 and 82 to 88 of Order XXI. If a re-sale is held resulting in a deficiency in price, the Officer holding the sale must give a certificate in Form 31, Appendix E. The officer conducting the sale should give to the auction purchaser a receipt in Form No. 10 at page 106 of Volume II. This form may also be used in other cases (See the footnote printed on it). It should be in counterfoil and the bailiff or officer of the Court receiving the money should fill in the counterfoil as well as the receipt.
432. As a rule, no sale in execution of a decree should be fixed to take place on any day on which the Court is to be closed. The same rule, so far as possible, should apply to the execution of processes for attachment of movable property for the arrest of a witness or judgment-debtor.
433. The sale of movable property becomes absolute when the purchase money is paid and a receipt given [Order XXI, rule 77(2)] and is not vitiated by irregularity (Order XXI, rule 78).
434. Whenever guns or other arms in respect of which licenses have to be taken out by purchasers under the Arms Act, 1959 (54 of 1959), are sold by public auction in execution of decrees, the Court directing the sale should give due notice to the District Magistrate of the names and addresses of the purchasers and of the time and place of the intended delivery to the purchasers of such arms, so that proper steps may be taken by the police 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 the Arms Act.
435. The manner of vesting movable property in the purchaser or giving him possession is prescribed in Order XXI, rules 79 to 81. (See Forms Nos. 32 to 34 of Appendix E).
436. Government Promissory Notes attached in execution of a decree, which have to 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 sale-proceeds of the notes.
437. In the case of a sale of immovable property, the sale has to be confirmed by the Court (Order XXI, rule 92). Certain cases are stated in Order XXI, rules 89, 90 and 91, 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 without notice 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 of Appendix 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 what appear 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 should be kept and upon the issue of the certificate, an entry should be made in the Roznama and also 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 granted the Court should issue a written order to that effect to the Nazir or Collector, as the case may be, and a note of each execution application should be made in the Roznama of the other or others.
442. Rules 95 and 96 of Order XXI contain the law as to possession of immovable property to the auction purchaser. What is stated in paragraphs 388 to 390 of this Chapter 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 relevant to 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 the immovable property in dispute, are required to be dealt with in accordance with law contained in section 74 and Rules 97 to 106 of Order XXI, as amended under the rules framed 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 of the appeal, if any. In absence of any such appeal and the result thereof, such order has the 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 of Order 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 into the possession of the Court.
446. Growing crops are movable property [see clause (13) of section 2 of the Code] and it is clear that the Code intends that growing crops should be specified separately from the land in the application for attachment and that, if it is intended that growing crops as well as land should be sold, both should be separately specified in the application 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 for the purpose of realising the money decreed where the property is sufficiently large to bear the extra cost of appointment of a receiver.
449. (1) A Court, ordering attachment of land assessed to the payment of revenue to the Government, should send two copies of the order to the Collector with a request to have one of them affixed to the notice board in his office. As the other copy is required for the Record of Rights, one copy only need be sent, if the land is in a village where the Record of Rights has not been introduced. District Judges should obtain lists of such villages for their Courts and subordinate Courts, from the Collector.
(2) Similarly, a Court by whose order attachment is removed or ceases should send intimation to the Collector in standard Form No. Civ. A-234.
(3) The Collector should certify the affixing to or the removal from, his notice-board of orders of attachment.
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