Sunday, 3 June 2018

Notes on execution of decree- part 1

S 36.Provisions of this code relating to execution of decree are applicable to execution of orders.

S 37. Definition of court which passed a decree:-
a) Decree passed by appellate court,the court of first instance.
b) Court of first instance ceased to exist,the court having jurisdiction to try said suit.

S 38. Court by which decree may be executed:-
A decree may be executed either by the court which passed it,or by court to which it is sent for execution.

Read important judgments on execution of decree:
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S 39. Transfer of decree:-
1) Court which passed a decree may on the application of decree holder sent it for execution to another court of competent jurisdiction-
a) if the person against whom decree is passed is residing or working within the jurisdiction of that court.
b) if such person has no property within the local limits of jurisdiction of the court which passed the decree sufficient to satisfy such decree and has property within the local limit of jurisdiction of such other court,or
c) if the decree directs the sale or delivery of immovable property situate outside the local limits of jurisdiction of the court which passed it,or
d) if the court which passed the decree considers for any other reason,which it shall record in writing, that the decree should be executed by such other court.

2) The court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction.
3) For the purposes of this section, a court shall be deemed to be a court of competent jurisdiction if at the time of making the application for transfer of decree to it,such court would have jurisdiction to try the suit in which such decree was passed.
4) Nothing in this section shall be deemed to auhorise the court which passed a decree to executed such decree against any person or property outside the local limits of its jurisdiction.[ inserted by amendment Act 2002.

S 40. Transfer of decree to court in another state.

S 41.Result of execution proceedings to be certified.

S 42. Powers of court in executing transferred decree:-
1) Court executing transferred decree shall have same powers in executing such decree as if it had been passed by itself.

S 46. Precepts:-
1) Upon the application of decree holder the court which passed the decree may issue a precept to any other court which would be competent to execute such decree to attach any property belonging to judgment debtor as specified in the precept.
2) The court to which precept is sent shall proceed to attach the property of judgment debtor.
Provided that no attachment under a precept shall continue for more than two months unless period of attachment is extended by an order of the court which passed the decree or unless before determination of such attachment the decree has been transferred to the court by which attachment has been made and the decree holders has applied for an order for sale of such property.

Read important judgments on precept:
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S 47. Questions to be determined by the court executing decree:-
1) All questions arising between the parties to the suit in which the decree was passed,or their representatives, and relating to execution,discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by separate suit.
3)Where a question arising as to whether any person is not the representative of a party,such question shall for the purposes of this section be determined by the court.
Explanation 1- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed and parties to the suit.
Explanation 2- (a) For the purposes of this section, a purchaser of a property at a sale in execution of a decree shall be deemed to be a party to the suit in which decree is passed; and
(b) all questions relating to delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to execution,discharge or satisfaction of the decree within the meaning of this section.

Read important judgments on S 47 of CPC:
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S 49 Transferee- Every transferee of a decree shall hold the same subject to equities if any which the judgment debtor might have enforced against the original decree holder.

S 50. Legal representative-
1) Where a judgment debtor dies before the decree has been fully satisfied that the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased.
2) Where the decree is executed against such legal representative,he shall be liable only to the property of the deceased which has come in his hands and has not been duly disposed of; and for the purpose of ascertaining such liability the court executing the decree may, of its own motion or on application for the decree holder compel such legal representative to produce such accounts as it thinks fit.

S 51.Power of court to enforce execution -
Court may on the application of decree holder, order execution of decree-
a) by delivery of any property specifically decreed;
b) by attachment and sale or by sale without attachment of any property;
c) by arrest and detention in prison for such period not exceeding the period specified in S 58 where arrest and detention is permissible under that section.
d) by appointing a receiver; or
e) in such other manner as the nature of relief granted may required:
Provided that where the decree is for payment of money,execution by detention in prison shall not be ordered unless after giving judgment debtor an opportunity of showing cause why he should not be committed to prison, the court for reasons recorded in writing is satisfied-
a) that the judgment debtor with the object or effect of obstructing or delaying the execution of the decree-
1) is likely to abscond or leave local limits of the jurisdiction of the court; or
2) has after the institution of the suit in which the decree was passed, dishonestly transferred,concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or
b) that the judgment debtor has means to pay the amount of decree and he refuses or neglects to pay the same; or
c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account.
Explanation- in the calculation of the means of judgment debtor for the purposes of Cl(b) there shall be left out of account any property which is exempt from execution of decree.

S 52.Enforcement of decree against legal representative:-
1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by attachment and sale of any such property.
2) Where no such property remains in the possession of judgment debtor and he fails to satisfy the court that he has duly applied such property of deceased as is proved to have come into his possession, the decree may be executed against judgment debtor to the extent of property in respect of which he has failed to satisfy the court in the same manner as if the decree had been against him personally.

S 53 Liability of ancestral property:-
Property in the hands of son or other descendant which is liable under Hindu law for payment of debt of deceased ancestor in respect of which decree has been passed shall be deemed to be property of deceased which has come to the hands of his son or other descendant as his legal representative.

S 54 Partition of estate or separation of share:-
Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the government, partition of estate or separation of share of the share shall be made by collector.

Read important judgment on S 54 of CPC:

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