Tuesday, 21 January 2014

QUESTION ANSWERS FOR JUDICIAL SERVICE(Execution of decree)


1] Whether the tenant has right to raise resistance after the decree of eviction and possession, u/s 47 and u/o 21 rule 97 to 104 of Code of Civil Procedure?

Ans: When tenant is dispossess without following due procedure of law, he has right to raise resistance. (Sumeer Sobhan Sanyal  Vs. Tracks Trade Pvt. Ltd. AIR 1996 S.C. 2102 )  


2] Can the executing Court go behind the decree, if the Court which passed the decree had no jurisdiction?


Ans: Yes


3] Whether the decree for specific performance is a preliminary decree or a final decree?


Ans: Decree for specific performance is preliminary decree.


4] Whether the Co-sharer in immovable property has right to resist the decree under Order 21, rule 97 to 104 read with section 47 of Code of Civil Procedure?


Ans: No


5] Whether time can be extended by executing court for compliance of directions given in a specific performance of contract?


Ans: Yes




6] Whether in filing the execution proceeding the delay can be condoned under Section 5 of Limitation Act?


Ans: No


7] When the court can grant police aid in execution of a decree?

Ans: When there is obstruction to delivery of possession, court can grant police aid.

8] How to execute a decree of specific performance for restitution of conjugal rights?

Ans: Decree for restitution of conjugal rights can be executed by attachment of property of husband. Where said attachment remains in force for six months and J.D. has not obeyed decree and decree holder has applied  to have attached property sold, such property may be sold and out of said proceeds court may award compensation to Decree holder and shall pay balance if any to J.D. on his application.  Where the J.D. has obeyed the decree and paid all costs of execution, at the end of six months from the date of attachment, no application to have property sold has been made or if made has been refused, attachment shall cease. Court may direct husband to make periodical payments to wife if he fails to obey decree for restitution of conjugal rights.  

9] Whether the decree of mandatory injunction can be executed after expiry of period of three years from the date of decree?
Ans: As per article 135 of Limitation Act, limitation is three years for execution of decree of mandatory injunction from the date of decree or when the date is fixed for performance, such date.




10] In a suit for specific performance, decree is silent on the relief of possession. Whether court can order the same in execution?

Ans: Yes, court can grant possession in execution of decree for specific performance.

11] a] Whether application for correction of description of property in execution proceeding is maintainable?

Ans: Yes, Court can correct description of property in execution proceeding as per Sec. 47 of C.P.C. as well as Sec.152 of C.P.C.  

B]  Whether Order 6rule 17 of C.p.C. Applies to execution proceeding?

Ans: No, provisions of O.6 Rule 17 of C.P.C. is not applicable to execution proceeding.

12] Whether the decree which is nullity, can it be challenged even at the execution stage ?
Ans: Yes.
13] In pending execution JD dies, legal representatives were not brought on record. What was the effect of execution?
Ans: Even though legal heirs are not brought on record, execution application does not abate. Legal heirs of J.D. can be brought on record at any stage of proceeding.  It is held the Hon'ble Supreme Court in the case of Vthirapthi Vs. Ashrerb Ali AIR 1998 SC 1168.  If after filing of an execution petition in time, the decree holder dies and his legal representatives do not come on
record or the J.D. dies or his legal representatives are not brought on record, than there is no abatement of execution petition. If there is not abatement of execution position in the eye of law is that execution petition remains pending on the file of execution court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in the case of death of D.H. For all his legal representatives to come on record at anytime.  






14] Whether it is mandatory for court to record evidence while deciding an application u/o 21 rule 97 of the C.P.C.?


Ans: It is not mandatory for court to record evidence while deciding an application under O. 21 rule 97 of C.P.C. Court can  decide said application summarily.  

Objection petition -opportunity to lead evidence – it is not incumbent upon the executing court that it must put to trial every objection which are filed in any execution proceeding, even if prima facie they appear to  be frivolous

vexatious and are only intended to delay  execution  and frustate the procedure of law where it amounts to abuse of process of  court. (Rocky tyres Vs. Ajit  AIR 1998 Punjab and Hariyana 202)

15] Once an application is filed by aggrieved person under Rule 97 or Rule 99, then whether such person is entitled to file separate suit on any question arising between the parties, including the question relating to right, title and interest in the property?


Ans: As per O.21 rule 101 all questions arising between the parties to a proceeding on an application under Rule 97, or Rule 99 or their representatives and relevant to adjudication of application shall be determined by court dealing with the application and not by a separate suit and for this purpose the court shall notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions.


16] Whether an order rejecting application of obstructor is not appellable?

Ans: No, as per order 21 Rule 103 where any application has been adjudicated upon under Rule 91 or Rule 100 order made thereon shall have the same force and the subject to same condition as to an appeal or otherwise as if it where decree.


17] Whether a Transferee pendentee Lite has no Locus Standi to offer resistance or obstruction in the execution of the decree ?

Ans: Yes. However an obstructor who entered into agreement with Judgment debtor prior to institution of suit, but got possession after institution is not barred by Rule 102. (Bhailal Hukumchand Shah .v/s. Narendas)


18] Whether a decree for specific performance of contract containing condition regarding obtaining of permission from competent authority relating to sell can be passed?
Ans: Yes. Decree for specific performance of contract can be passed subject to obtaining permission from competent authority for transfer of property.
19] Whether it is mandatory on the part of executing court to stay the execution of decree till the decision of the suit in which the fact in issue are same and was pending on the date of the commencement of proceeding?

Ans: As per order 21 rule 104 every order made under 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of proceeding. In this such order is made if in such suit party against whom order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of property. Therefore it is not mandatory for executing court to stay execution of decree till decision of suit in which fact and issue are same and was pending on the date of commencement of the suit.

20] What is the difference between Section 47 and Order 21 Rule 101 of Civil Procedure Code ?
Ans: As per Section 47 all questions arising between the parties to the suit in which decree was passed or their representatives and relating to execution discharge or satisfaction decree shall be determined by the court executing the decree and not by separate suit.
As per O.21 Rule 101 : Objection filed by third party to offers resistance to the execution of decree are also covered under this rule and questions raised can be determined by executing court (Silverline Forum Pvt. Ltd. .v/s Rajiv Trust) Under this rule court has jurisdiction to decide all questions including questions of title before allowing that application but this does not mean that entire procedure denovo of suit shall have to be followed.

21] What is the proper procedure for executing sale deed through court in execution proceeding.

Ans: Procedure for executing sale deed through court in executing proceeding is that D.H. Has to give draft sale deed to the court. Said draft sale deed is to be served to the J.D. After objection is received from J.D. Said objection is to be decided. If objection filed by J.D. is rejected by the court. Court shall execute sale deed in favour of D.H. through court official.

22] Whether a final decree drawn against a dead man is binding against his legal representatives?
Ans: No

23] Whether a fresh application for actual possession is maintainable once symbolical possession is given?

Ans: Yes.
Where there symbolical possession s delivered to the decree holder or purchaser under r.96, the person in possession cannot be said to be dispossessed within the meaning of this rule so as to entitled him to apply under old r.100. It is only the delivery of actual possession (r.95) that can constitute dispossession within the meaning of this rule. A person who is in possession through his tenant will be said to be dispossessed within the meaning of r.100 if the tenant is ousted from the property by the delivery of actual possession to the decree holder or purchaser.  

24] Whether a purchaser pendent lite can obstruct the execution of a decree for possession of immovable property and question of his right, title or interest can be determined under Rule 101 (Order 1) C.P.C.?

Ans: No

25] Decree Holder has paid in to court Rs.500/- as a subsistence allowance. Whether it is cost in the suit ?

Ans: Yes in view of O.21 Rule 19 (5) sums disbursed by D.H. for subsistence of J.D.  in civil prison shall be deemed to be costs in the suit.  
26] What is the maximum period for which a person can be detained in civil prison?

Ans: As per Section 58 of the C.P.C. every person detained in Civil prison in execution of decree shall be so detained
I] Where the decree is for payment of money exceeding Rs. 5000/- for period not exceeding for three months.
II] Where the decree is for payment of sum of money exceeding Rs.2000/- but not exceeding Rs.5000/- for the period not exceeding 6 weeks provided that he shall be released from such detention before expiration of said period of detention.
A] On the amount mentioned in the warrant for his detention be paid to officer in charge of civil prison
B] When decree passed against him is fully satisfied.
C] On the request of a person on whose application he has been so detained.
D] Omission of D.H. To pay subsistence allowance. Said person will be released from detention only after order of the court.
I] J.D. shall not be detained in prison if decretal amount does not exceed Rs.2000/-.
II] J.D. release from detention under this section shall not merely by reasons of his release be discharge from his debt but he shall not be liable to be rearrested under the decree in execution of which he was detaining civil prison.

27] When does the sale of immovable property becomes absolute?
Ans: As per order 21 rule 92 sale comes absolute when sale is confirmed.

28] Whether it is mandatory to frame issue if the decree is resisted on title?
Ans: As per order 21 Rule 101 all questions including question relating right, title or interest in the property arising between the party in the proceeding shall be determined by the court dealing with the application and not by separate suit and for this purpose

29] Whether auction purchaser is entitled for possession of immovable property? If yes, when? And under provision?

Ans: Where a sale of immovable property has become absolute, court shall grant certificate is specifying the property sale amount of purchasing and name of the person who at the time of sale is declared to be purchaser.
As per Order 21 Rule 95, auction purchasers can be delivered possession of property in possession of J.D. and in possession of any one claiming through him by removing J.D. or any one claiming through him.

30] Whether third party to a decree can file an application under Order 21 Rule 99 of the Code even on apprehension of dispossession ?

Ans: As per order 21 Rule 99 a person apprehending his dispossession can not take shelter of this rule. It is only when dispossession in execution of decree has taken place that one can move an application under Rule 99.
31] When application under Order 21 Rule 35 (2) of the Code of Civil Procedure, 1908 for delivery of possession is moved and obstruction is caused, is it necessary for decree holder to move separate application under Order 21 Rule 97 of the Code ?
Ans: Yes, as per order 21 Rule 35 when delivery of possession ordered under this rule is obstructed by third person, any question whether he is sub tenant of J.D. must be determined not under this rule but under Rule 97. (United Bank of India .v/s. Mitra AIR 1962 Assam 150)





32] If third party to the decree filing caveat that, he is not bound by decree. In such circumstances, whether the decree can be executed?
Ans: According to Bombay High court Section 148-A does not apply to applications for execution under order 21 rule 43 or order 21 Rule 54 as these are not proceedings in which J.D. has also right to be heard. Section 148-A is attracted only to cases where caveator is entitled to be heard. (N.D. Co-operative Housing Society .vs. Sadana Builders AIR 1984 Bombay 114) pg. 606.

33] Whether execution of decree of conjugal right automatically cease if divorce decree is passed during such execution?

Ans: Decree for conjugal right automatically ceased if divorce decree is passed during such execution. And alter situation may render decree futile in change circumstances decree should not be executed.

34] Whether objection to validity of decree can be raised in execution proceeding?

Ans: It is held by the Hon'ble Supreme Court in the case of Sunder dass .v/s. Ramprakash AIR 1977 Supreme Court 1201 that executive court cannot go behind decree nor it can question of its legality or correctness. But there is one exception to this general rule and that is that where decree sought executed a nullity for lack of inherent jurisdiction in the court passing it. Its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction it goes to the root of competence of the court to try the case and a decree which is nullity is void and can be declared to be void by any court in which it is presented. Executing court can entertain an objection that decree is nullity and can refuse to execute the decree. By doing so executing court could not incurred reproach that is going behind the decree because decree being null and void there is no decree at all.

34] Whether a person has been dispossessed under an order made by the Collector to whom execution proceedings are transferred, in such situation such dispossessed person as per rule 98 will apply to whom?

Ans: An order passed under Rule 98 or 100 of Order 21 is appellable and such appeal has to be filed like regular appeal under Section 96 of C.P.C. Once it is held that an appeal is to be filed under 96 of C.P.C. Valuation of suit shall determine the jurisdiction of the court where appeal is to be filed. (AIR 2008 Orissa page , AIR 2005 A.P. 95) page 1388.


35] Is the defendant entitled to enforce the decree for specific performance as the plaintiff ?
Ans: yes, because decree in suit for specific performance create mutual rights and obligation and both the parties occupied the position of J.D. and D.H. Thereunder. (Jainarayan .v/s. Kedarnath AIR 1956 Supreme Court 359)

36] Whether an application under Section 47 of Civil Procedure Code can be moved prior to filing of execution proceeding?

Ans: Yes, pendency of an application for execution by D.H. Is not a condition precedent for exercise of court's power under Section 47 of C.P.C. (A.V. Mohd. Ali Sahib .v/s. Naina Mohd. Mara Cavi (1982) 2 Mh.L.J.300)
Pendency of application for execution by D.H. is not a condition for raising a question in execution under this section (AIR 1967 S.C. 1193 (1195).

37] Can the execution proceeding for interim mandatory injunction be filed ?

Ans: When court can entertain execution application for executing interim mandatory Injunction?


Equivalent Citation: ILR 2010 KARNATAKA 923, 2009(5)KCCR3446
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
C.R.P. No. 237/2009
Decided On: 06.11.2009
Shri Somashekar D. Patil S/o Mr. D.S. Patil
Vs.
Shri D.S. Patil S/o Sri Shivanagouda Patil and Shri Manjunath D. Patil S/o D.S. Patil
Hon'ble Judges/Coram:
A.S. Bopanna, J.

Code of Civil Procedure, 1908 - Order 20, Rule 18--Final decree proceedings--Suit for partition filed and preliminary decree obtained--Interim mandatory injunction sought by plaintiff to remove an unauthorized person--Allowed--Execution filed--Petition for obstruction file--Dismissed--In the meanwhile preliminary decree passed--The execution was allowed against the Civil Revision Petition filed--Whether Execution Court has Jurisdiction to entertain the Court--The order of interim mandatory injunction gets merged with the decree.

Held: Therefore, what can be deduced is that in all suits of the nature where passing of only one decree is provided under the Code, the suit would come to an end on the passing of the decree. In that circumstance, all interlocutory orders passed during the pendency of the suit would merge with the decree and would not have independent existence so as to seek for execution since the decree in itself would become executable. However, the suits in which the passing of two decrees namely, preliminarily and final is provided for under the Code, even if the preliminary decree is passed, in law, the suit does not conclude until the final decree which s executable is passed, though the right of the party gets decided or determined by the preliminary decree. One such exception would be if interlocutory order has a bearing on the passing of the final decree in terms of Order 20, Rule 18(2) and Order 26, Rule 14 of the Code. In such event, it would remain in force even after the passing of the preliminary decree and until the suit concludes by way of final decree.
As such, the interlocutory order in the instant case cannot be held to have merged in the preliminary decree and the executing Court would be justified in proceeding with the matter. The impugned order therefore does not call for interference. i) The Civil Revision Petition is dismissed. ii) The petitioner is however granted time till 15.11.2009 to voluntarily vacate and report to the executing Court failing which the delivery warrant shall be executed.

- See more at: http://www.lawweb.in/2014/01/when-court-can-entertain-execution.html#sthash.qtOm4xiR.dpuf


38] In which cases, the court can refuse to accept the highest bid offered at the time of sale of movable or immovable property?  

Ans: Court can refuse to accept highest bid offered at the time of sale of movable or immovable property.
I] When bid is offered by D.H. as per order 21 Rule 72 of C.P.C.
II] When bid is offered by receiver D.H.  Mortgagee,  officer  or other person involved in conduct of auction proceeding.



39] What is the effect of the order passed under Order XXI Rule 98 of Civil Procedure Code?
Ans: An order passed under O. XXI R. 98 of C.P.C. Is appellale order and such appeal has to be filed like a regular appeal under Sec.96 of C.pC. An order passed under O.XXI R. 98 of C.P.C. Becomes conclusive between the parties except were a party other than the Judgment debtor against whom the order was passed files a fresh suit under O. XXI R. 103 of C.P.C.


40] Whether decree for restitution of conjugal rights can be enforced by sending the J.D. in jail?

Ans: Decree for restitution of conjugal rights can not be enforced by sending J.D. in jail as per order 21 Rule 32 of C.P.C. Decree for restitution of conjugal rights can be executed by attachment of his property.   


41] Whether execution proceeding dismissed for default can be restored?  If yes under which provisions?

Ans: Execution proceeding dismissed for default can be restored as per order XXI R.106 of C.P.C.

42] Whether a decree holder dispossessed not in execution of any decree passed by a competent court i.e. otherwise than in due course of law, can he get back possession by filing application u/o 21 Rule 32 of the C.P.C.?

Ans: No, he has to file fresh suit. Bar of separate suit  does not apply when possession was given in execution of decree but subsequently D.H. Was dispossessed . This dispossession give right to new cause of action. (Uma Shankar  Vs Sarabjeet 1996 (2) Apex Court Journal  113 S.C.   

43] Whether an auction purchaser is entitled to actual delivery of property in occupancy of tenant?

Ans: As per order 21 Rule 96 where the property sold in occupancy of tenant court can give symbolic possession of suit property to auction purchaser by affixing copy of certificate of sale in some conspiracy place of property  and by proclamation.

44] How to execute the decree of Restitution of Conjugal right, passed in favour of husband?

Ans: The decree of restitution of conjugal right passed in favour of husband can be enforced in view of Sec.13 (1A)(ii) by presenting a petition for the dissolution of the marriage by decree of divorce on the ground that there is no restitution of conjugal rights between him and respondent for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

45] What is difference between execution of decree,discharge of decree and satisfaction of decree?
Ans: Execution of decree is a process by which decree of court is enforced by taking legal steps.Discharge of decree is another process by which liability under decree is fulfilled or put to an end by positive acts of judgment debtor.Lastly satisfaction of decree means compliance with terms of decree by judgment debtor .


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