Whether execution application can be dismissed on ground that Arbitration award is not registered?

 Dismissal of the execution proceedings seeking to execute an award passed by an Arbitrator on the ground that said award was unregistered is the subject matter of challenge in the present writ petition.

As per the provisions of Section 17(1)(b) of the said Act, it is clear that in any testamentary document purporting to create or declare any right, title or interest in any immovable property exceeding value of Rs. 100/- is compulsory registrable. The decisions relied upon by the learned counsel for the respondent nos. 1 and 2 support the aforesaid proposition. On reading of the entire award, it becomes clear that ownership rights in favour of the parties has been created with regard to some of the properties and they have been called upon to relinquish their rights with regard to other properties. It is therefore evident that since the right, title and interest was being created in immovable property exceeding the value of Rs. 100/-, the award was required to be duly registered. In absence of such registration, the award cannot be executed. Reference in this regard can be made to the decision in Sita Ram Bhama Vs. Ramvatar Bhama, MANU/SC/0284/2018 : (2018)15 Supreme Court Cases 130.

The decisions relied upon by the learned counsel for the petitioners do not lay down that even if any right, title and interest is created in immovable property exceeding the value of Rs. 100/-, registration of such documents is not necessary. The aspect of pre-existing rights is also not very relevant especially when both the parties are required to relinquish their rights in favour of the other party with regard to some properties.

7. It is thus found that the Executing Court was legally correct in coming to the conclusion that as the award that was sought to be executed was not registered, the execution proceedings were not tenable. I therefore do not find any reason to interfere with the said order. By observing that it is open for the petitioner to have the award registered and thereafter take such steps as are permissible in law to execute the award, 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 4571/2016

Decided On: 10.06.2019

Ramchandra Vs. Kiran and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2020(1) MHLJ 84 SC

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Whether execution application will abate if legal heirs of judgment debtor or decree holder are not brought on record within limitation?

If during, the pendency of a regular execution proceeding filed on the basis of a decree or order of a Civil Court, the decree holder or the judgment debtor dies and his legal representatives are not brought on record within ninety days, can the Civil Court dismiss the execution petition as abated?

12. Order 22 Rule 12 of the CPC reads as follows:

"Order 22 Rule 12: Application of order to execution proceedings'. Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."

13. In other words the normal principle arising in a suit - before the decree is passed - that the legal representatives are to be brought on record within a particular period and if not, the suit could abate, - is not applicable to cases of death of the decree holder or the judgment debtor in execution proceedings.

14. In Venkatachalam v. Ramaswami, ILR (1932) Mad. 352 : AIR (1932) Mad. 73, a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla's Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) refers to a large number of judgments of the High Courts and says:

"Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The rule is, therefore, for the benefit of the decree holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application."

15. In our opinion, the above statement of law in Mulla's Commentary on the CPC, correctly represents the legal position relating to the procedure to be adopted by the parties in execution proceedings and as to the powers of the Civil Court.

16. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the 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 case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the CPC.

IN THE SUPREME COURT OF INDIA

S.L.P. (C) No..../1998 (CC 1802)

Decided On: 18.02.1998

V. Uthirapathi Vs. Ashrab Ali and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and M. Jagannadha Rao, JJ.

Citation:AIR 1998 SC 1168.

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When court can restore execution application as per S 151 of CPC?

Under Order XXI Rule 105 of CPC, the Court is empowered to fix a date for hearing of the execution application. It further provides that if on the date fixed or on any date the hearing is adjourned, the applicant does not appear when the case is called for hearing, the Court may make an order that the application be dismissed. Order XXI Rule 106 of CPC provides that when an order is made under sub-rule 2 of Rule 105 Order XXI or sub-rule 3 of that Rule, such party against whom such order is passed may apply to such Court to set aside such an order and if he satisfies the Court that there was sufficient cause for his non-appearance, the Court shall set aside the order on such terms it thinks fit and shall place the matter on the day for further hearing of the application. Sub-rule 3 of Rule 106 of Order XXI further provides that an application under sub-rule 1 of Rule 106 of Order XXI shall be made within 30 days from the date of the order or in case an ex-parte order, if a notice was not duly served, within 30 days from the date when the applicant had knowledge of the order.

13. In my view, since the record clearly indicates that on the date of the said execution application, the Executing Court had not fixed the execution application for hearing under Order XXI Rule 105 of CPC, the said execution application has been dismissed on the ground that no steps were taken by the petitioner. In my view, the time of 30 days prescribed in sub-rule 3 of Rule 106 of Order XXI of CPC for making an application for setting aside the ex-parte order would not be attracted in such a situation. There would be thus no limitation prescribed for making an application for setting aside the order dismissing the execution application dismissed due to the steps not having been taken by the decree holder in the execution application. Such application shall be filed within reasonable period.

17. A perusal of the order passed by the learned Executing Court indicates that the learned Judge has rejected the said application for condonation of delay on the ground that section 5 of the Limitation Act was not applicable to the restoration proceedings under Order XXI Ruled 106 of CPC. In my view, since the provisions of Order XXI Rule 106 of CPC, were not attracted in this case, in view of the execution application itself not having been placed on board for hearing, reference to section 5 of the Limitation Act, 1963 in the impugned order shows perversity.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5896 and 5897 of 2015

Decided On: 15.10.2018

Botanium Limited  Vs. Babu Raghu and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2019(2) MHLJ 287

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Whether application for execution of decree which is not signed by trustees of charitable trust is maintainable?

 It is also argued that the execution proceedings ought to have been signed by all the trustees and that the Secretary of the trust cannot represent the trust to file execution proceedings. In support of this contention reliance is placed on Section 47 of the Indian Trusts Act, 1882.

7. So far as the question as to who should sign the execution proceedings and who should verify the execution proceedings is concerned, the provisions of Order 21, Rule 11(2) of the Code of Civil Procedure, 1908 are most relevant. The relevant provision reads as under :

"Written application-- (2) Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars."

This provision clearly means that it is not necessary that every time only the decree holder must file execution proceedings. It can be filed by any other person who happens to be acquainted with the facts of the case and the Court happens to be satisfied that the person so signing the execution proceedings is acquainted with the facts of the case. Here, the Secretary of the trust has signed the execution proceedings and it is very clear from the order passed by the learned Judge of the Court of Small Causes that he has not raised any doubt about the acquaintance of the Secretary with the facts of the case. So to the satisfaction of the Judge of the Court of Small Causes, the execution proceedings is rightly presented.

8. No doubt, Section 47 of the Indian Trusts Act, 1882 prohibits the trusts from delegating the powers, but the explanation to Section 47 of the Indian Trusts Act, 1882 reads as follows :

"The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section."

It means that ministerial acts can be performed by a person who is authorized by the trustees to do the needful. Learned Counsel for the petitioners has argued that no such authorization is filed by the Secretary before the Court to show that he can sign the execution petition on behalf of the trust. However, when the Court was satisfied that the Secretary was acquainted with the facts of the case and could file proceedings, I do not think that there is any substance in this contention. 

IN THE HIGH COURT OF BOMBAY

Civil Writ Petn. No. 2285 of 1997

Decided On: 21.06.2001

 Monalisa Rohinton Irani  Vs. Naval H. Tata and Ors.

Hon'ble Judges/Coram:

V.K. Barde, J.

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Whether execution proceeding will abate if there is death of decree holder or judgment debtor?

If during, the pendency of a regular execution proceeding filed on the basis of a decree or order of a Civil Court, the decree holder or the judgment debtor dies and his legal representatives are not brought on record within ninety days, can the Civil Court dismiss the execution petition as abated?

12. Order 22 Rule 12 of the CPC reads as follows:

"Order 22 Rule 12: Application of order to execution proceedings'. Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."

13. In other words the normal principle arising in a suit - before the decree is passed - that the legal representatives are to be brought on record within a particular period and if not, the suit could abate, - is not applicable to cases of death of the decree holder or the judgment debtor in execution proceedings.

14. In Venkatachalam v. Ramaswami, ILR (1932) Mad. 352 : AIR (1932) Mad. 73, a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla's Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) refers to a large number of judgments of the High Courts and says:

"Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The rule is, therefore, for the benefit of the decree holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application."

15. In our opinion, the above statement of law in Mulla's Commentary on the CPC, correctly represents the legal position relating to the procedure to be adopted by the parties in execution proceedings and as to the powers of the Civil Court.

16. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the 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 case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the CPC.

IN THE SUPREME COURT OF INDIA

S.L.P. (C) No..../1998 (CC 1802)

Decided On: 18.02.1998

 V. Uthirapathi Vs. Ashrab Ali and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and M. Jagannadha Rao, JJ.

Citation: AIR 1998 SC 1168

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Whether district judge can entertain application for execution of arbitration award?

In the case of Fountain Head Developers, the Full Bench has held that the District Judge in a district alone is the principal Court of original civil jurisdiction and it is not included in other Judge subordinate to him. It is also held that "The Parliament intended to have only one court as the forum for arbitral proceedings, that is, the "principal court of original jurisdiction" in a district". This ratio laid down by the Full Bench in Fountain Head Developers cannot be misread that the District Judge or the District Court means only a Court of Principal District Judge. It appears that the order of the Division Bench of Nagpur Bench in The Akola Janata Commercial Cooperative Bank Ltd. which is very relevant and useful, was not placed before the Hon'ble Single Judge and therefore, he had no opportunity to consider this aspect from the other prospective.

24. In the case of The Akola Janata Commercial Cooperative Bank Ltd. (supra), the Division Bench of Nagpur has held that

"The word "Court" occurring in Section 36 must be held to be a Court of District Judge also for the purpose of enforcement of the award. It further held that "From a conjoint reading of these provisions, it is clear that an award must be treated as a decree passed by the District Judge and, therefore, it may be executed either by the District Judge himself or by any Court to which it may be sent by such District Judge for execution vide Section 38 of the Code of Civil Procedure. The transfer of decree by the District Judge would be governed by Section 39 of the Code of Civil Procedure. Thus, a decree holder must apply for execution of an award to the Court of District Judge, who may either execute the award as a decree himself or send it for execution to another Court including a subordinate Court of competent jurisdiction."

Thus, the principal Civil Court of original jurisdiction has a wider connotation which includes Principal District Judge and so also of the District Judges, who collectively fall under the category of Judges having principal Civil Court of original jurisdiction. Hence, the challenge given cannot sustain. Writ Petition is dismissed.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4157 of 2017

Decided On: 12.04.2017

Union of India Vs. Arun Kumar Deedwania

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: 2017(4) MHLJ131

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How to ascertain limitation for restoration of dismissed execution application?

It is not in dispute that the Execution Petition was dismissed in terms of the provisions of Rule 105 of Order XXI of the Code of Civil Procedure. Sub-rule (1) of the said Rule provides for fixing a day for hearing of the application; whereas sub-rule (2) thereof envisages that if on the day so fixed or on any other day to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed. Sub-rule (3) of the said Rule postulates hearing of an application ex-parte in a case where the applicant appears and the opposite party to whom the notice has been issued by the Court does not. Sub-rule (1) of Rule 106 of Order XXI of the Civil Procedure Code provides for restoration of the application for default or setting aside of the order passed under sub-rules (2) & (3) of Rule 105 of Order XXI in the following terms:

"The applicant, against whom an order is made under sub-rule (2) of rule 105 or the opposite party against whom an order is passed ex-parte under sub-rule (3) of that rule or under sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

Sub-rule (3) of Rule 106 provides for the period of limitation for filing such an application which reads as under:

"An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex-parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order."

The learned Executing Court allowed application of restoration filed by the Respondent herein on the ground that it acquired the knowledge about the dismissal of the Execution Petition only on 25.3.1998.

The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of sub-rule (3) of Rule 106. A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of Rule 105, the starting period of limitation for filing of a restoration application would be the date of the order and not the knowledge thereabout. As the applicant is represented in the proceeding through his Advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex- parte order was passed and that too without proper notice upon the judgment debtor and not otherwise. Thus, if an order has been passed dismissing an application for default, the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. In that view of the matter, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant.

We may notice that the period of limitation has been fixed by the provisions of the Code and not in terms of the second schedule appended to the Limitation Act, 1963.

Supreme Court of India

Damodaran Pillai & Others vs South Indian Bank Ltd on 8 September, 2005

Bench: Ashok Bhan, S.B. Sinha

Citation:(2005) 7 SCC 300 : AIR 2005 SC 3460

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Whether Judgment debtor can raise objection about defect in execution petition at belated stage?

 Upon hearing learned counsel for the parties, it is clear
that Col. 3 of the execution petition bears the date of the decree to be
23.12.1998. In fact, the date mentioned in Col. No. 3 of the
execution petition is the date of the judgment of the trial court in
O.S. No. 50 of 1983. In an execution proceeding, the date of the 
decree means the date of the judgment as held in ILR 1950 (Cuttack
Series) 253. Thus, no exception can be taken to the date mentioned
in Col. 3 of the execution petition. The case of the petitioners is that
the decree holder-opposite party has put the decree of O.S. No. 50 of
1983 to execution, which has already been confirmed by the learned
District Judge, Khurda at Bhubaneswar in T.A. No. 8/7 of 2002/99.
Thus, applying the principles of doctrine of merger, it is the decree of
the first appellate court which should be executed and not the decree
of the trial court. Law is no more res integra on this issue as held in
the case of M/s. Gojer Brothers (P) Ltd. (supra). However, the
judgment debtors-petitioners have not raised any such objection in
their petition filed under Section 47 of the C.P.C. (I.A. No. 524 of
2010). The objection raised in the petition under Section 47 of the
C.P.C. has already been complied with and the matter has been set
at rest. Further, Order 21 Rule 17 C.P.C. casts an obligation on the
executing court to verify whether there is any defect in the execution
petition for non-compliance of the Rules 11 to 14 of Order 21 C.P.C.
If the Court finds any defect in the execution petition, it shall call
upon the decree holder to rectify the same either then and there or
grant some time to the decree holder for removal of the same. Such
power of the Court can be exercised at any stage of the execution
proceeding. The judgment debtors-petitioners cannot take advantage
of such non-compliance as their objection with regard to
maintainability of the execution proceeding can only be raised under 10
Section 47 of the C.P.C.
 HIGH COURT OF ORISSA: CUTTACK
 CMP NO. 404 OF 2016

Ghanashyam Pradhan and two others 
Versus
Ram Pratap Kheria.

 Date of Judgment: 11.04.2016

P R E S E N T:
  SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2017(NOC) 38 Orissa

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Whether court can issue notice U/O21 R 22 of CPC if execution application is filed within two years of date of decree?

Counsel for the applicant while placing reliance upon a decision
rendered by this Court in the case of  Bajranghlal Singhania Vs Ratan
Chandra Ghosh & ors.  reported in  [2002(1) JCR 599 (Jhr)]  has also
placed reliance upon Order XXI Rule 22 of Code of Civil Procedure and
submitted that notice is required to be given to judgment­debtor when the
execution proceedings are initiated by judgment decree holder, even after
2 years of the decree. From this, no negative inference can be drawn that
there is no need of issuance of notice upon the judgment debtor when the
judgment decree holder has initiated execution proceeding within two
years. It all depends upon the facts and circumstances of the case, the
complexity of the issues, the financial aspects involved in the matter or
such other relevant aspects which may be appreciated after hearing the
judgment­debtor,   even   if   execution   proceedings   are   initiated   within   a
period of two years. Order XXI Rule 22 does not debar the learned trial
court from issuance of any notice upon the  judgment debtor, even if
execution proceedings are initiated within a period of 2 years.  
IN THE HIGH COURT OF JHARKHAND AT RANCHI
     Civil Review No. 43 of 2011 
  ­­­­­   
Tata Steel Limited, formerly M/s Tata Iron and Steel Company Limited, 
         Versus
Manager, Bihar Khadi Association, 
CORAM:  HON’BLE MR. JUSTICE D.N. PATEL  

Citation:AIR 2016 jharkhand 80        ­­­­­­­­­
Dated: 7th January, 2016

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Whether succession certificate is required for continuation of execution proceeding?

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 29146 of 1990

Decided On: 19.11.1990

Appellants: Chhotey Lal 
Vs.
Respondent: Dist. Judge, and others

Hon'ble Judges/Coram:
R.A. Sharma, J.

Civil - substitution of legal heirs - Order 21 Rule 24 and Order 22 Rules 3, 4, 8 and 12 of Code of Civil Procedure, 1908, Section 214 of Succession Act, 1925 and Article 137 of Limitation Act, 1963 - not applicable to proceedings in execution of a decree - even if heirs are not brought on record execution proceedings will not abate.

This Court in S. Khandelwal v. B. Prasad MANU/UP/0083/1972has laid down that provisions of S. 214 of the Succession Act do not apply to application of a person seeking to continue the execution proceedings after the death of decree-holder, inasmuch as the legal representatives merely request the execution court for continuation of the execution proceedings already initiated by the deceased decree-holder. This Court declared that S. 214 of the Succession Act prohibits the institution of execution proceedings by a person claiming as successor but it does not bar the continuance of the proceedings if the execution proceedings had already started by the deceased decree-holder. The first plea of the learned counsel for the petitioner as such, cannot be accepted.

Citation: AIR1991All214, 1991 AWC 247 All, 1991CivilCC822, 1991 RD123

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Whether execution proceeding can be abated?

4. Rule 12 of Order XXII of the Code of Civil Procedure provides that nothing in Rules 3, 4 and 8 shall apply to the proceedings in execution of a decree or order. Rule 3 provides for impleadment of the legal representatives of a deceased plaintiff. Rule 4 provides for impleading the legal representatives of a deceased defendant. If no application is filed within the time provided underArticle 120 of the Limitation Act to implead the legal representatives of a deceased plaintiff or a deceased defendant, the suit will abate. Article 121 of the Limitation Act provides for a further period of sixty days to file an application to set aside the abatement. If no application is filed within the time provided under Article 121 of the Limitation Act, there would occur delay and, in any application for impleadment filed thereafter, the delay has to be explained. By providing that Rules 3 and 4 of Order XXII of the Code of Civil Procedure would not apply to the execution proceedings, it only means that due to non-impleadment of the legal representatives, there would be no abatement to the execution proceedings. 

Kerala High Court

Sabeeda Beevi vs Nazeema Thaha on 2 August, 2004

Citation: 2012 (3) KHC 747, 2012(3)KLJ558, 2012(3)KLT549,2012(4)Civil court cases 

120 kerala

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Whether there is limitation for bringing legal heirs on record in execution application?

It is clear, therefore, that if after the filing of an execution petition in time, the decree-holder dies and his legal representatives do not come on record - or the judgment-debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the 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 case of death of the decree-holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree-holder's legal representatives. In case of death of the judgment-debtor, the decree- holder could file an application to bring the legal representatives of the judgment-debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree-holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event, the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree-holder's legal representatives to file a fresh execution petition in case of death of a decree-holder; or, in case of death of the judgment-debtor, the decree-holder can file a fresh execution petition impleading the legal representatives of the judgment-debtor; such a fresh execution petition, if filed, each, in law, only a continuation of a pending execution petition - the one which was filed in time by the decree- holder initially. This is the position under the Code of Civil Procedure."

Chattisgarh High Court

Smt. Yashoda Devi vs Neeta Devi on 25 September, 2008

Citation: AIR2009Chh12

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Whether Legal heirs of deceased are bound to produce succession certificate for continuance of execution proceeding?

Civil - Succession Certificate - Validity of - Section 214(1)(b) of Indian Succession Act,1956 - Whether on death of original decree-holder in an execution proceeding legal heirs can continue proceeding without being required to produce a succession certificate or production of a succession certificate is condition precedent for continuance of execution proceeding? - Held, principle of construction that statute must be so interpreted which would best serve object of statute - When a legal representative of deceased creditor files an application for being substituted in execution proceeding initiated by creditor, application is undoubted one for an execution of decree and application is being filed on condition of being so entitled and attracts operation of Section 214(1)(b) of Act - Execution case cannot proceed unless substituted decree-holder produces a Succession Certificate in his favour - Civil Revision is accordingly allowed

Citation: AIR1984Ori1

Orissa High Court

Aparti Panda vs Govinda Sahu on 8 August, 1983

Equivalent citations: AIR 1984 Ori 1

G.B. Patnaik, J.

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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 is 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.

Civil Revision Petition is dismissed.

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Whether Application U/S 47 of CPC can be filed even though execution application is not pending?

On behalf of the revision petitioner it is contended that as per Section 47, Civil Procedure Code, all matters arising in execution can be decided by the Court. He also relies upon the case reported in M.P. Shreevastava v. Mrs. Veena MANU/SC/0016/1966 : [1967] 1 SCR 147, where the Supreme Court observed that in so far as the proceedings under Section 47 are concerned the expression "Court executing the decree" occurring in Section 47 does not mean only a "Court which is seized of an application for execution of a decree at the instance of the decree-holder". A question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and the pendency of an application for execution by the decree-holder is not a condition precedent fair the exercise of the Court's power under Section 47.

Citation;1982-95-LW327, (1982)2MLJ300

IN THE HIGH COURT OF MADRAS

Decided On: 21.12.1981

 A.V. Mohamed Ali Sahib

Vs.
Respondent: Naina Mohammed Maracair

Hon'ble Judges/Coram: R. Sengottuvelan, J.

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Whether Court can convert objection filed in execution application into application U/O 21 R 97 of CPC?

Pointing out Rule 97 Order XXI, C.P. Code, it has been contended on behalf of the appellant that, separate application with necessary particulars and pleadings complaining about resistance or obstruction is required to be made before the Court, while in the present case, initially the objections were filed, and subsequently those objections were converted into the application under Rule 97 which is not at all permissible or contemplated in law because the application over and above necessary pleadings, must contain the relief clause which is wanting here. The contention cannot be accepted. Of course there is no specific provision in C.P. Code for the conversion of Appeal into Revision or vice versa; or from objection filed into the application, or from one application into another, and therefore, for imparting justice fully and finally, or the circumstances of the case so demand, it is open to the court vested with inherent discretionary powers u/sec. 151 C.P. Code to convert a particular application as the application under particular provision, or revision application to an appeal or vice versa or objections filed to the particular application if not specifically prohibited by any provision of any law. Once conversion is made, what is converted will assume all characteristics of the converted form, viz., Revision would assume characeristics of appeal or vice versa & likewise in other cases. There is nothing in law prohibiting the court from converting the objections filed in the execution petition into the application under Rule 97 for the purpose of resisting the obstruction to the possession of immovable property. Of course while filing the objections the relief sought may not have been stated specifically which at the time of filing the real application is pleaded in specific words, but once the conversion is permitted, the pleadings are to be liberally construed and not with a view to find fault with the same as justice is the paramount consideration and the same is not to be thwarted or foiled. The necessary relief under the rules of construction/interpretation can well be assumed because in the objections also impliedly if not expressly the relief is pleaded, may be generally, and the duty of the court is to read the same with necessary implication when conversion is allowed. If required, necessary amendment can be permitted. In the objection initially prayer to reject the appellant's application (Exh. 49) is made, stating that obstruction raised by the appellant are not tenable. Such prayer indirectly conveys the real prayer which ordinarily one would expect or is required to be pleaded. On objections being converted into the application under Rule 97, the same assumed the characteristics of the application envisaged by Rule 97. The discretion exercised is quite just and proper. 1

Gujarat High Court

John Mithalal Desai vs Dineshbhai K. Vora on 29 August, 1997

Equivalent citations: (1997) 3 GLR 279

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Limitation for restoration of execution application

Order 21 Rule 105 and 106 speak of restoration of execution application. Restoration application can be filed within thirty days. If we read Section 5 of the Limitation Act, it has no application to execution proceedings. Therefore, where restoration application is not filed within 30 days in execution proceedings, there is no provision to condone the delay. The learned judge of the Lower Court, therefore, to my mind, fell in error in allowing the application. The order patently suffers from illegality and also suffers from wrong exercise of jurisdiction. The revision is, therefore, allowed.1

Bombay High Court

Dattatraya S/O Raghunath Jog vs Radhabai W/O Laxmanrao Ghate on 29 January, 2007

Equivalent citations: 2008 (1) BomCR 718, 2007 (3) MhLj 425

C.L. Pangarkar, J.

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Whether Suit can be treated as an execution petition?

This appeal was taken up separately as in course of hearing terms of settlement were mooted. We indicated to the counsel for the respondents that even if there be some force in the plea that a separate suit did not lie (though the argument advanced by Mr. Govindan Nair for the appellant in support of the stand that a separate suit for the reliefs claimed lay was forceful), the suit could as a measure of ex debito justice be treated as an execution petition. There is good authority for converting an execution application in to a suit and there could, in our opinion, be no valid objection to the counter process of converting a suit in to an execution proceeding, particularly when an ill advised widow would on account of some procedural error be likely to be deprived of the fruits of an order of maintenance. Respondents' counsel has also fairly conceded this position. We direct that the suit be treated as an execution application. 1

Supreme Court of India

Smt. Nandarani Mazumdar vs Indian Airlines And Ors. on 1 September, 1983

Equivalent citations: AIR 1983 SC 1201, 1983 (31) BLJR 677, 1983 (2) SCALE 173

Bench: A N Sen, P Bhagwati, R Misra

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