What pre-requisites should the court follow before ordering the detention of a judgment debtor in civil prison in executing a money decree?

 Arrest and detention in prison is one of the modes by which Section 51 permits the executing court to enforce execution of a decree. This power is, however, expressly subject to the proviso to Section 51. It is well settled that a proviso is in the nature of an exception to the main provision.6 The proviso to Section 51 applies exclusively to a situation in which the decree under execution is a money decree, as in the present case. In such a case, there is an absolute proscription – as is reflected by the use of the words ―shall not be ordered‖ – against execution of a money decree by detention in prison unless the protocol envisaged by the proviso is scrupulously followed. This protocol may be set out thus:

6 Refer Madras & Southern Maharatta Rly. Co. Ltd. v. Bezwada Municipality AIR 1994 PC 71, Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha AIR 1961 SCC 1596

(i) The executing court is required, in the first instance, to grant, to the judgment debtor, an opportunity to show cause as to why he be not committed to prison. (ii) Consequent on receipt of response from the judgment debtor to the said show cause notice, the Court has to be satisfied that one or more of the exigencies envisaged by Clauses (a) to (c) of the proviso exist. Clause (a) envisages the judgment debtor being likely to abscond or to leave the local limits of the jurisdiction of the Court or dishonestly transferring, concealing or removing any part of his property or committing any other bad faith in relation to his property, with the object or effect of obstructing or delaying the execution of the decree. Clause (b) envisages a situation in which the judgment debtor, despite being possessed of the means to pay the amount of the decree or a substantial part thereof, refuses or neglects to do so. Clause (c) contemplates a situation in which the decree is for a sum for which the judgment debtor was bound to account in a fiduciary capacity. (iv) It is only after issuing a notice to the judgment debtor to show cause against committal in prison, and the court is satisfied that one or more of these exigencies applies, that execution of the decree by detention in prison can be ordered. {Para 22}

23. Clearly, therefore, Section 51 prescribes a very rigid protocol

before enforcing execution of a simplicitor money decree by detention of the judgment debtor in prison. This protocol is mandatory and non-negotiable.

24. Order XXI Rule 37 is, in a manner of speaking, a provision supplemental to Section 51 of the CPC and geared at facilitating the implementation thereof. Order XXI Rule 37 also applies where the execution application seeks execution of a money decree. The provision starts with the non-obstante clause, indicating that it prevails over other Rules in the CPC.

25. Order XXI Rule 37(1) provides that, in the case of an application for execution of a money decree, instead of issuing warrants of arrest of the judgment debtor, the Court shall – thereby indicating the provision to be mandatory – issue of notice to the judgment debtor calling upon him to appear before the Court on a specified date and show cause as to why he be not committed to the civil prison. The proviso to Order XXI Rule 37 relaxes this requirement ―if the Court is satisfied, by affidavit or otherwise, and that the object and effect of delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the Court‖.

26. It is obvious that insofar as the proviso to Order XXI Rule 37(1) compromises the liberty of the judgment debtor, it has to be subjected to a strict construction. It can apply, therefore, only where the Court, for clear and cogent reasons, satisfies itself that the judgment debtor is likely to abscond or leave the jurisdiction of the Court with the object or effect of delaying the execution of the decree.

27. It is only where appearance is not made in response to the notice issued Order XXI Rule 37(1) that Order XXI Rule 37(2) empowers the Court to issue a warrant for arrest of the judgment debtor.

28. Order XXI Rule 40 envisages yet a further protocol, where a judgment debtor appears before the executing court in obedience to the notice issued under Order XXI Rule 37. Where notice is issued under Order XXI Rule 37(1) and in response thereto, the judgment debtor appears before the executing court, the court cannot straightaway direct him to be detained in civil prison, even where he is in default of execution of the decree. The Court is required to (i) hear the decree holder, (ii) take all such evidence as may be produced by the decree holder in support of his execution application and thereafter (iii) provide, to the judgment debtor, an opportunity to show cause as to why he be not committed to the civil prison. The exercise that Order XXI Rule 40(1) envisages is an inquisitorial exercise, as is apparent from the opening words of Order XXI Rule 40(2), which provides for detention, of the judgment debtor, in the custody of an officer of the Court, pending conclusion of the inquiry under Order XXI Rule 40(1). It is only after this inquisitorial exercise is carried out under Order XXI Rule 40(3), that the Court may direct detention of the judgment debtor in civil prison.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  CM(M) 1548/2019, CM APPL. 46789/2019 (Stay) and CM APPL. 55276/2019 (Extension of time)

 M/S CELL PAGE COMMUNICAITON  Vs VIJAY SHANKAR PANDEY 

 CORAM: HON’BLE MR. JUSTICE C. HARI SHANKAR 

Dated: 11.10.2022

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Is exemption provided U/S 60(1)(c) of C.P.C applicable to a decree with a statutory charge over the property?

 Coming to the crucial issue in these cases, it is relevant

to note that the decree put in execution is for realisation of the

advance sale consideration paid by the decree holder, where a

statutory charge was created under Section 55 (6) (b) of the Transfer of Property Act. When there is a charge decree, a debtor cannot claim exemption under Section 60(1)(c) of the C.P.C. This legal position was considered by a Division Bench of this Court in the decision Ammini v. K.V.Vibeesh & Ors. (supra) and held in the affirmative. In fact, there is no reason to differentiate a charge decree and a decree, where statutory charge is created, while considering exemption provided under Section 60(1)(c) of C.P.C. Thus, without much ado, it can be held that a decree where there is a statutory charge over the property is akin to a charge decree. Therefore, it has to be held that the exemption provided under Section 60(1)(c) of the C.P.C is not applicable to a charge decree or to a decree where there is a statutory charge, over the property. In view of the matter, I have no hesitation to hold that Ext.P4 order passed by the execution court is legally unsustainable and the same is liable to be set aside. {Para 17}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C) NO. 2004 OF 2018

BINOY KURIAN Vs VARKEY JOSEPH

PRESENT

 MR. JUSTICE A. BADHARUDEEN

Dated this the 19th day of May, 2022

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Whether Judgment debtor can claim relief expressly denied to him in the suit in the execution of the decree?

 It is trite law that an executing Court cannot go behind the decree that is to be executed and give relief to the judgment debtor that was expressly denied to him [refer: Bhawarlal Bhandari v. Universal Heavy Mechanical Shifting Enterprise, (1999) 1 SCC 558]. After this issue pertaining to whether the Petitioner is the owner of the property in question or not has been crystallized, the Petitioner is now once again raking up the same issue which has attained finality. The argument of the Petitioner that he and his father were the owners of the property in question has attained finality in the Eviction Petition and the same has been confirmed by this Court in the Revision petition filed by the Petitioner. Furthermore, and the SLP filed against that order has failed. The Petitioner wants to contend that the sale deed did not convey any right, title or interest to the Respondents as the erstwhile owners were not in possession of the area in occupation of the Respondents. This amounts to re-agitating the case once-again. The Petitioner cannot now agitate the very same issue in the Execution Petition. {Para 8}

 IN THE HIGH COURT OF DELHI AT NEW DELHI

IN THE MATTER OF:

RC.REV. 76/2022

RAMESH KUMAR BANGA Vs KAILASH MAKKAR AND ANR 

CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

Date of decision: 21st APRIL, 2022

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Whether Legal representative of deceased judgement debtor impleaded in Execution proceedings can challenge decree which has attained finality against his predecessor in interest?

  In our considered opinion the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment-debtor. It is apparent from section 50 CPC that when a judgment-debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim "actio personalis moritur cum persona" is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary (supra) and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in section 50 CPC, such a decree can be executed against legal representatives. {Para 26}

(SUPREME COURT)

ARUN MISHRA AND AMITAVA ROY, JJ.

Prabhakara Adiga Vs. Gowri & Ors.

Civil Appeal Nos.3007-3008 of 2017

20th February, 2017.

Citation: 2017(2) ALL MR 878 (S.C.),2017(4) MHLJ 792

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Delhi HC: Arbitral Award Is To Be Executed At A Place Where Judgment Debtor Resides, Carries Business Or Has Assets

 There is no justification for filing an execution petition before the court within whose jurisdiction the arbitral award was passed, and then seek a transfer to the Court which has jurisdiction over the Judgment Debtor or their properties. Irrespective of the place where the award was passed, it is to be executed by a Court within whose jurisdiction the Judgment Debtor resides, carries on business or his property is situated. Since the Judgment Debtor is admittedly residing within the territorial jurisdiction of the courts at Chennai, such courts would certainly have territorial jurisdiction to enforce the arbitral award. Thus, this Court lacks territorial jurisdiction to entertain the present petition. {Para 12}

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 OMP (ENF.) (COMM.) 38/2021, EX.APPL.(OS) 981/2021,

EX.APPL.(OS) 1034/2021 and EX.APPL.(OS) 1367/2021

CONTINENTAL ENGINEERING CORPORATION Vs

SUGESAN TRANSPORT PVT. LTD.

CORAM:

HON'BLE MR. JUSTICE SANJEEV NARULA

Dated:10.01.2022

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Whether the court must decide all questions raised by obstructionist during the execution of the decree?

When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.

The words all questions arising between the parties to a proceeding on an application under Rule 97 would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because of the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.

Supreme Court of India

N.S.S.Narayana Sarma & Ors vs M/S.Goldstone Exports P. Ltd. & ... on 23 November, 2001

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Whether the court should recognize time-barred payment made by Judgment debtor outside the court?

  Now, the law says further that if money is paid or adjustment of decree of any kind is arrived at outside the Court, it should be promptly got recorded and certified as contemplated by Rule 2. This can be done either by the J. D. or by the decree-holder; but in the very nature of things, a judgment-debtor should be more concerned in having such payment or adjustment recorded and certified by the Court. Article 125 of the Limitation Act provides a period of 30 days for applying to the Court for recording; an adjustment or satisfaction of the decree, from the date of payment or adjustment. There is no provision for extending the said period. Since by virtue of Sub-rule (3) of Rule 2 of Order XXI "a payment or adjustment, which has not been certified or recorded as aforesaid (in accordance with Rule 2) shall not be recognized by any Court executing the decree", any payment or adjustment not certified or recorded in accordance with Rule 2 of Order XXI is no payment or adjustment in law. Any such payment or adjustment cannot be recognized by the Court executing the decree -- unless of course, the decree-holder himself admits the same. Therefore, when a decree-holder takes out execution, the judgment-debtor will not be entitled to plead -- if by the date of his plea a period of thirty days has expired from the date of payment or adjustment, as the case may be -- that he has paid the money due, or has otherwise adjusted the decree, outside the Court. It is, no doubt, true that the use of the expression 'may' - in Sub-rule (2) of Rule 2 has given room for controversy and argument; but, in my opinion, the said expression has to be construed and understood in the light of Sub-rule (3) of Rule 2, and if so read, the expression 'may' is liable to be construed and understood as 'shall'. By placing this construction no inconsistency arises between Order XXI, Rule 2 and Section 47. When Section 47 declares that all questions relating to execution, discharge or satisfaction of a decree shall be enquired into and determined only by the Court executing the decree and not by a separate suit, it does not mean that the provisions in Order XXI, Rule 2 read with Article 125 of the Limitation Act should be ignored. Indeed, one should read them together harmoniously. As stated hereinbefore, the several Rules in Order XXI supplement, illustrate and elaborate the provisions contained in Part-II of the Code. The object behind Sub-rule (3) of Rule 2 of Order XXI is to shut out any plea of payment, or adjustment, which is not promptly got recorded and certified under the said Rule. The idea is to preclude any such pleas and leave no room for them.

20. For the above reasons, I hold, agreeing with Upendralal Waghray, J. that the payment allegedly made by the judgment-debtor on 5-1-1979 not having been recorded and certified in accordance with Order XXI, Rule 2(2), C.P.C., cannot be recognized by the executing Court in E.P. No. 73/1981, because the application alleging such payment was made, even in the earlier E.P., (E.P. No. 20/1979), beyond 30 days of the payment.

IN THE HIGH COURT OF ANDHRA PRADESH

Civil Revn. Petn. No. 2413 of 1983

Decided On: 29.04.1988

P. Narasaiah  Vs. P. Rajoo Reddy

Hon'ble Judges:

B.P. Jeevan Reddy, K. Amareswari and Upendralal Waghray, JJ.

Citation: MANU/AP/0166/1989,AIR 1989 AP 264 (FB)

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Whether the court can execute injunction decree against some of the Judgment debtors if one of the judgment debtors is dead?

The third contention that the first Judgment Debtor having died and his LRs having not been brought on record, the injunctive decree is not executable at all qua the other judgment debtors is too farfetched an argument since it is a judgment in personam, and can be executed as against rest of the judgment debtors, no rule of law being shown to the effect that the death of one of the judgment debtors results into the dissolution of the decree qua the other judgment debtors.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition No. 46572 of 2016 (GM-CPC)

Decided On: 28.06.2019

Hanumanthaiah  Vs.  G.S. Arun Kumar and Ors.

Hon'ble Judges/Coram:

Dixit Krishna Shripad, J.

Citation: MANU/KA/4382/2019

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Whether Judgment debtor can resist the execution of decree if it fails to challenge compromise decree?

True, the trial Court has simply recorded the terms of the compromise. But this compromise carries with it all the elements highlighted in Roshan Lal, a judgment of the Supreme Court's three-Judge Bench: "The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord in the circumstances, is entitled to have such a decree under the law."

33. About the plea of collusion, I must note that the Society has already raised that issue in an independent suit but did not pursue it. It has not even arrayed, in these proceedings, the President eo nominee. Besides, the courts below have, on facts, rejected the Society's plea of collusion. First, the court that passed the decree has inherent jurisdiction. Second, the procedural lapses, if any, have not gone to the root of the matter to nullify that decree. Third, the Society filed a suit on the same cause but later abandoned it. Fourth, in a revision, this Court will not upset findings of fact.

34. In the above context, so long as the decree has remained unchallenged, the Society or its members cannot be heard saying that despite their earlier failed attempt, they still can obstruct the decree. Such an approach, if approved, falls foul of the Rule of Law.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 296 of 2008

Decided On: 11.09.2019

 Nira and Palm Product Producers Co-op. Society's Ltd. and Ors.

Vs. Nirmala Yeshwant Pethe and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: MANU/MH/3150/2019

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Guidelines of Delhi High court for speedy disposal of application for execution of decree

Conclusion

44. The execution of decrees/awards deserves special attention considering that inordinate delay in execution proceedings frustrates the decree-holder from reaping the benefits of the decree/award.

45. In cases of execution of decrees/awards for recovery of money, the Executing Court shall direct the judgment debtor, at the first instance, to file an affidavit of assets on the date of cause of action, date of the decree/award as well as on the date of the swearing of the affidavit in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure within thirty days. The oral prayer/application of the decree-holder for issuance of this direction is sufficient compliance of Order XXI Rule 41(2) of the Code of Civil Procedure.

46. The Executing Court is empowered, at the initial stage itself, to restrain the judgment debtor from transferring, alienating or disposing of or otherwise parting with the possession of any assets to the tune of the decretal/award amount except in the ordinary course of business such as payment of salary and statutory dues. However, the judgment debtor shall not discharge any financial liability, other than the liabilities of Banks/financial institutions, without the permission of the Executing Court.

47. If the judgment debtor fails to appear before the Court upon service of notice, the Executing Court shall ensure his presence initially by issuing bailable warrants and thereafter, by issuing non-bailable warrants.

48. In the event of the default of the judgment debtor to file the aforesaid affidavit within the stipulated time, the Executing Court shall consider detention of the judgment debtor in civil prison for a term not exceeding three months under Order XXI Rule 41(3) of the Code of Civil Procedure by directing the decree-holder to deposit the subsistence allowance @ Rs. 40 per day per person with the Executing Court for detention of the judgment debtor. Upon deposit of the subsistence allowance, the Executing Court shall issue non-bailable warrants against the judgment debtor for his detention.

49. Since Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure is not exhaustive to ascertain all the assets of the decree-holder, the Executing Court shall, in exercise of power under Section 151 and Order XXI Rule 41 of the Code of Civil Procedure read with Section 106 and Section 165 of the Indian Evidence Act, direct the judgment debtor to file an additional affidavit of his assets and income in the format of Annexure-A along with documents mentioned therein within thirty days. If the judgment debtor is a proprietor of a proprietorship firm; partner of a partnership firm; member of an HUF and/or Director of a company, additional affidavits be filed by the judgment debtor in respect of the assets of each firm/HUF/Company, as the case may be, in the format of Annexure-B.

50. After examining Annexure-A, the Court may direct the judgment debtor to file an additional affidavit of his expenditure in the format of Annexure-C.

51. If the judgment debtor is a Firm/Company/HUF/Trust, the Court shall direct the judgment debtor to disclose its assets and income in the format of Annexure-B. This affidavit of the Firm/Company/HUF/Trust shall be sworn by all Partners/Directors (other than independent/non-executive and nominee directors)/Members/Managing Trustee, as the case may be.

52. If any ground for lifting of the corporate veil is made out, then all the Directors (other than independent/non-executive and nominee directors) of the judgment debtor Company be directed to disclose their personal assets and income in the format of Annexure-A.

53. Upon filing of affidavits in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure as well as the additional affidavits namely Annexure-A, B and C, the Executing Court shall give liberty to the decree-holder to verify the disclosures made in the affidavits, either himself or through an Investigator.

54. While formulating the affidavits Annexure-A, B and C, many more questions and documents were considered by this Court which would have complicated the affidavits and caused inconvenience to the litigants. In order to keep the affidavits concise and precise, this Court incorporated only important questions and documents. However, the Courts are at liberty to direct the parties to disclose further relevant facts and documents to determine the true assets and income of the judgment debtor. The Courts are also at liberty to consider the rules and formats of affidavits mentioned in para 37 to develop and further improve the format of the affidavits formulated by this Court.

55. The Courts shall ensure that the filing of the affidavits by the judgment debtor is not reduced to a mere ritual or formality. If the affidavit of the judgment debtor is not in the prescribed format or is not accompanied with the relevant documents, the Court may grant reasonable time to the judgment debtor to remove the defects/deficiencies.

56. The Courts/Arbitral Tribunals are empowered to direct a party to file the aforesaid affidavits in proceedings under Order XXXVIII of the Code of Civil Procedure and proceedings under Sections 9, 17 and 36 of the Arbitration and Conciliation Act.

57. The decree-holder is at liberty to serve the interrogatories and seek production of relevant documents from the judgment debtor.

58. The Executing Court shall, thereafter, consider whether the oral examination of the judgment debtor is necessary under Section 165 of the Evidence Act. If so, the Executing Court shall proceed to examine the judgment debtor.

59. Sections 51(b), 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure contain the provisions for attachment of properties in execution of decrees. Before attaching a property, the Executing Court shall ensure that the property does not fall in the list of properties which are exempt from attachment/sale under the Proviso to Section 60(1) of the Code of Civil Procedure. The Executing Court shall ensure the compliance of Sections 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure with respect to the attachment of properties in execution of decrees.

60. When the Executing Court finds that the judgment debtor is not satisfying the decree/award despite having means/capacity to pay, the decree-holder is at liberty to file an application for detention of the judgment debtor whereupon the Executing Court shall issue a show cause notice to the judgment debtor to show cause as to why he should not be committed to civil prison. The Court shall, upon being satisfied that the judgment debtor has means to pay the decretal amount or substantial part thereof and has refused or neglected to pay the same, pass an order for detention of the judgment debtor in civil prison for a period not exceeding three months in terms of Section 58(1)(a) of the Code of Civil Procedure. Even after release from detention, the judgment debtor shall remain liable to satisfy the decree/award in terms of Section 58(2) of the Code of Civil Procedure. However, the judgment debtor who has no means to satisfy the decree/award, cannot be detained in civil prison. The Court shall follow the procedure laid down in Sections 51(c), 55 to 59 and Order XXI Rules 37 to 40 of the Code of Civil Procedure for detention of the judgment debtor.

61. In appropriate cases, the Executing Court may (i) issue notice and direct the Garnishee(s) to deposit in Court the amount due to the judgment debtor as per law; (ii) permit the decree-holder to inspect all the assets and the records of the judgment debtor in the presence of the Local Commissioner to be appointed by the Court; (iii) direct the auditor of the judgment debtor company to submit a report with respect to the affairs of the judgment debtor; (iv) permit the decree-holder to serve interrogatories on the auditors of the judgment debtor; (v) permit the decree-holder to inspect the records of the judgment debtor with the Income Tax and the other authorities to verify the disclosures made by the judgment debtor; (vi) in extreme cases, appoint a Chartered Accountant as a Local Commissioner to inspect all the records of the judgment debtor and submit a report to the Court with respect to the affairs of the judgment debtor; (vii) restrain the judgment debtor from leaving the country without the permission of the Court; and (viii) impound the passport of the judgment debtor.

62. If the judgment debtor has made any misrepresentation, concealment or false statement in the affidavits, the decree-holder is at liberty to invoke Section 340, Cr.P.C. Reference be made to the principles laid down in Sanjeev Kumar Mittal v. State, MANU/DE/3134/2010 : 174 (2010) DLT 214 and H.S. Bedi v. National Highway Authority of India, MANU/DE/0154/2016 : 227 (2016) DLT 129.

Directions to the District Courts

63. The District Courts shall implement these guidelines with immediate effect by directing the judgment debtor to file the affidavit of assets and income on the date of the cause of action, date of decree/award and on the date of the swearing of the affidavit in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure as well as additional affidavits in the format of Annexure-A or Annexure-B, as the case may be, within thirty days.

64. Delhi High Court Rules for execution of decrees [Volume I of High Court Rules and Orders, Part C, Chapter 12 - Part A - 'General'] provides for expeditious disposal of the execution cases by District Courts. Rule 2 provides at least one day every week to be reserved for execution work to ensure expeditious disposal. Rules 4 and 5 provide for close supervision and control of the execution cases by the District Judge and report to the High Court in the event of any delay in the disposal of execution cases.

IN THE HIGH COURT OF DELHI

Ex. P. 275/2012, Ex. Appl. (OS) 221/2018 and Ex. P. 276/2012

Decided On: 05.12.2019

 Bhandari Engineers & Builders Pvt. Ltd. Vs.  Maharia Raj Joint Venture and Ors.

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Whether judgment debtor can plead payment of decretal amount outside court after expiry of thirty days?

1) whether a judgment-debtor, who does not get the payment made by him outside the Court recorded and certified under Sub-rule (2) of Rule 2 off Order XXI, C.P.C., can be permitted to plead such payment, after the expiry of period of 30 days prescribed by Article 125 of the Limitation Act, in the execution proceedings taken by the decree-holder? Amareswari, J. has held that by virtue of Section 47, C.P.C., the judgment-debtor is entitled to raise such a plea, while Upendralal Waghray, J. has held to the contrary.

2) Now, the law says further that if money is paid or adjustment of decree of any kind is arrived at outside the Court, it should be promptly got recorded and certified as contemplated by Rule 2. This can be done either by the J. D. or by the decree-holder; but in the very nature of things, a judgment-debtor should be more concerned in having such payment or adjustment recorded and certified by the Court. Article 125 of the Limitation Act provides a period of 30 days for applying to the Court for recording; an adjustment or satisfaction of the decree, from the date of payment or adjustment. There is no provision for extending the said period. Since by virtue of Sub-rule (3) of Rule 2 of Order XXI "a payment or adjustment, which has not been certified or recorded as aforesaid (in accordance with Rule 2) shall not be recognized by any Court executing the decree", any payment or adjustment not certified or recorded in accordance with Rule 2 of Order XXI is no payment or adjustment in law. Any such payment or adjustment cannot be recognized by the Court executing the decree -- unless of course, the decree-holder himself admits the same. Therefore, when a decree-holder takes out execution, the judgment-debtor will not be entitled to plead -- if by the date of his plea a period of thirty days has expired from the date of payment or adjustment, as the case may be -- that he has paid the money due, or has otherwise adjusted the decree, outside the Court.  

3) For the above reasons, I hold, agreeing with Upendralal Waghray, J. that the payment allegedly made by the judgment-debtor on 5-1-1979 not having been recorded and certified in accordance with Order XXI, Rule 2(2), C.P.C., cannot be recognized by the executing Court in E.P. No. 73/1981, because the application alleging such payment was made, even in the earlier E.P., (E.P. No. 20/1979), beyond 30 days of the payment.

IN THE HIGH COURT OF ANDHRA PRADESH

Civil Revn. Petn. No. 2413 of 1983

Decided On: 29.04.1988

 P. Narasaiah Vs. P. Rajoo Reddy

Hon'ble Judges:

B.P. Jeevan Reddy, K. Amareswari and Upendralal Waghray, JJ.

Citation: AIR 1989 AP 264 (FB)

B.P. Jeevan Reddy, J.

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How to appreciate evidence if judgment debtor is claiming rescission of contract as per S 28 of Specific relief Act?

The Hon'ble Supreme Court in the case reported in MANU/SC/0934/2004 : 2005 (9) SUPREME COURT CASES 262 (supra) following it's earlier decision in the case of HUNGERFORD INVESTMENT TRUST LTD. Vs. HARIDAS MUNDHRA reported in MANU/SC/0684/1972 : (1972) 3 SUPREME COURT CASES 684 at paragraph 27 has held as under:-

"27. In the case of Hungerford Investment Trust Ltd. v. Haridas Mundhra it has been held that when the court passes the decree for specific performance, the contract between the parties is not extinguished. That the decree for specific performance is in the nature of preliminary decree and the suit is deemed to be pending even after the decree. Hence, the court retains control over the entire matter even after the decree. Since the court retains control over the matter, despite the decree, it is open to the court to order rescission of the agreement, when it is found that the decree-holder is not ready and willing to abide by his obligations under the decree."

23. A large area in a suit for Specific Performance of contract since has been left to the discretion of the Court, the conduct of the parties to the suit assumes utmost significance in exercise of such discretion. The decree holder put the decree into execution and proceeded with the said execution case, took all steps required to be taken by him for the satisfaction of the said decree even before the said decree had attained finality. Whereas the judgment debtor in spite of receipt of the notice did not appear in the said execution case and allowed the decree holder to take those steps to get the decree matured. The conduct of the decree holder, therefore, favours him for exercise of the said discretion to protect the decree.

IN THE HIGH COURT OF CALCUTTA

CO 4271 of 2016 and CO 454 of 2017

Decided On: 01.10.2019

 Sabyasachi Ghosh  Vs. Pushparani Das

Hon'ble Judges/Coram:

Biswajit Basu, J.

Citation: AIR 2020 Cal 17

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Whether obstructionist notice is to be dismissed if obstructionist is not claiming under judgment debtor?

 In order to appreciate the contention of Mr. Kotwal, it is necessary to refer to the provisions of Order 21, Rule 97, 99 and 103 of the Civil P.C. Rule 97 provides that where the holder of a decree for possession of Immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction and the Court shall investigate into the matter. This right is conferred, either on the decree-holder himself or on an auction purchaser. It is not conferred on a purchaser by a private treaty. We merely wish to point out that the present plaintiff could not have maintained the application under the provisions of Order 21, Rule 97. It may none-the-less be that to the extent to which Watave was bound by such an order, private purchaser may also be bound by it, but for that purpose we shall consider the scope of the Order, Rule 99 provides that if the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. This rule makes it clear that in investigating the matter under Rule 97, the Court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not under the judgment-debtor. If he was (not?) claiming under the judgment-debtor he may be claiming, either on his own account or on account of some other person. If the Court was satisfied that the obstructionist did not claim under the judgment-debtor, that was enough. The Court has in that event to dismiss the application under Rule 97. The Court is not concerned to see in what title the obstructionist was claiming. 

IN THE HIGH COURT OF BOMBAY

A.F.A.D. No. 1197 of 1962

Decided On: 03.04.1970

Ganesh Narayan Kulkarni Vs.  Ganesh Ramchandra Joshi and Ors.

Hon'ble Judges/Coram:

J.L. Nain and D.G. Gatne, JJ.

Citation : AIR 1971 Bom 16

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Whether judgment debtor can claim exemption as per S 60(1)(c) of CPC in respect of property over which charge has been created by compromise decree?

According to the learned counsel for the appellant, she is a labourer occupying the land and building shown in the decree, as her sole shelter and source of means and therefore under S. 60(1)(c) of the Code, those assets are to be exempted from sale. On the other hand, according to the learned counsel for respondents 1 and 2, plea for exemption under S. 60(1)(c) does not accrue to the appellant having regard to the nature of decree in execution of which the property in question was sold. The argument is that the compromise decree passed on 11.02.2012 created a charge in the property and therefore, sale was not hit by S. 60(1)(c) of the Code.

11. We perused the decree and the terms of compromise incorporated therewith. The decree shows that the suit was instituted for specific performance of a contract for sale and the 2nd respondent later relinquished his claim for specific performance upon the promise made by the defendant that he would refund ` 75,000/- within six months of the date of compromise with 6% interest per annum. It was also agreed by the deceased Mylan that in case of default of payment of the amount as agreed, there shall be a charge in the plaint scheduled property. There is no dispute that the property brought for sale and confirmed in the execution proceedings was the same property over which charge was created as per compromise. Therefore the question that arises for consideration is whether exemption provided in S. 60(1)(c) of the Code can be claimed by the appellant in respect of the property over which charge has been created by a compromise decree.

12. Section 60(1)(c) of the Code enumerates the properties which are liable to attachment and sale in execution of a decree whereas proviso thereto categorises properties which are exempt from attachment or sale. On assimilation of the entire scheme of the provisions and also the object for which the exemption is enacted, it is very difficult to assume that a judgment debtor who suffers a money decree which creates a charge over his property can claim the benefit of exemption under S. 60(1)(c).

13. The nature of decree charging payment of money in the property of a defendant in a suit for money is such that the right of the holder of decree to recover money from the property by sale is determined at the time of passing the decree. Therefore the objection to attachability or saleability of property bearing charge cannot be said to be a matter arising before a court executing the decree. This is notwithstanding the fact that there is no need for the holder of such a charged decree to seek attachment of property which is already subject to charge since charge always runs with the land irrespective of subsequent transfers. In any view of the matter, a debtor after having created by his own consent a charge in his property cannot be allowed to turn round and contend later that the property is immune from attachment or sale as if he is entitled to exemption under S. 60(1)(c) of the Code. If he is allowed to approbate and reprobate, it will only defeat the very purpose of a decree creating charge in the property. There is nothing in law to indicate that S. 100 of the Transfer of Property Act 1882 (for short 'the T.P. Act') which makes provision for creating charge in the property by act of parties or decree is subservient to S. 60 of the Code. Where a decree orders payment of money and charges it on the immovable property on default, law permits the holder to realise money by sale of property in execution of that decree. This position of law is clear from Order XXXIV Rule 15(2) of C.P.C.

[(2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree.]

IN THE HIGH COURT OF KERALA

F.A.O. No. 210 of 2018

Decided On: 28.06.2019

 Ammini  Vs. Vibeesh

Hon'ble Judges/Coram:

A. Hariprasad and T.V. Anilkumar, JJ.

Citation: AIR 2019 kerala 146

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Whether executing court can take into account change of law during the pendency of execution proceeding?

The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order 21 Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order 21 Rule 101, Mani Nariman v. Phiroz 1991 M.L.J. 376.

29. Apart from the above, the case of the respondents/obstructionists even otherwise stands on a higher footing. The objection filed by them under Order 21 Rule 97 of the Code of Civil Procedure were rightly adjudicated upon by the executing Court. The Apex Court in the case of Ashan Devi v. Phulwasi Devi, 2003(9) Scale 783 while interpreting Order 21 Rule 97 of the Code observed that Legislature purposely amended Order 21 to enable third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. No separate suit is required to be filed. Proceedings under Order 21 Rule 97 of the Code are required to be tried as suit. In this view of the legal possession, no fault can be found with the impugned judgment and decree passed by the lower appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4323 of 1999

Decided On: 29.06.2004

Gordhandas Lalchnd  Vs.  Kubchand Tirthdas Tailor and Ors.

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) MHLJ 396

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Whether executing court can decide the issue that decree was obtained by fraud in obstructionist notice at the instance of third party?

 On plain reading of the aforesaid provisions, as amended after 1976, it is not open to contend, that the question relating to decree obtained by fraud cannot be gone Into by the Executing Court at the instance of the third party who is neither a judgment debtor nor claiming through the judgment debtor. Rule 101, as it presently stands, clearly bars a separate suit; and. Instead, postulates that all questions arising between the parties shall be determined by the Court dealing with the application filed under Rule 97 or Rule 99. There is no dispute that the present proceedings are arising out of the obstructionist notice taken out by the petitioner under Rule 97 to remove obstruction. Therefore, in such proceedings the issue regarding the decree having been obtained by fraud can surely be adjudicated by the Executing Court at the instance of a stranger to the decree.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3838 of 1989

Decided On: 05.03.2001

 Ahmed Abdul Aziz Bengali  Vs.  Mohammed Hanif M. Mulla and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001 ( 3 ) ALLMR 720

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Whether judgment debtor can deduct income tax out of mesne profits paid under decree of court?

The above definition of rent makes it abundantly clear that rent is a payment by whatever name you call it for use of any land or building. Thus, merely because the rent awarded by the Court was called by the Court as damages mesne profits does not mean that it ceases to be income of the Decree Holder. Similarly, I consider that interest over the unpaid amount would qualify as income since the unpaid amount is treated as something lying deposited with the Judgment Debtor. As, a person has to pay income tax on his deposits in the bank or in FDs, he is liable to pay income tax on the interest received by him under Court orders for unpaid amounts. The judgments cited by the Decree Holder are of no help since the judgments deal with different facts and circumstances. In Haryana Urban Development Authority v. Dr. Ashok Kumar Aggarwal MANU/SC/0817/2004 : (2005) 9 SCC 524 the Supreme Court observed that TDS could not be deducted on the payments towards compensation/damages for mental agony and harassment. The Supreme Court was not dealing with mesne profits in lieu of occupation and use of the premises. The view taken by the Calcutta High Court in my opinion is not the correct view. Delhi High Court in case of Mrs. Kanti Singh and Ors. v. The Project and Equipment Corporation of India Ltd. 2001 III AD (Delhi) 686 had given no opinion about TDS and only stated that the Court cannot go behind the decree.

7. I, find no force in the plea taken by Decree Holder that Judgment Debtor could not have deducted tax at source and deposited it with the government when Judgment had to pay rent mesne profits under orders of the Court.

IN THE HIGH COURT OF DELHI

Ex. Appl. No. 405/2009 in Ex. P. No. 351/2008

Decided On: 23.12.2009

Five Star Engg. and Agents Pvt. Ltd. Vs.  P.B. State Industrial Development Corporation

Hon'ble Judges/Coram:

S.N. Dhingra, J.

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Whether Judgement debtor can refuse to execute sale deed by refunding advance money in bank account of decree holder?

Therefore, when the time did not remain the essence of the contract, the judgment debtor/petitioner could not have rendered the compromise decree a non est by unilaterally depositing the advance money in the bank account of the decree holder, without his consent. Even if the petitioner refunded the advance money by depositing the same in the bank account of the respondent, without his consent, such refund or deposit, in view of order XXI Rule 2 of the CPC, as rightly contended by the learned counsel for the plaintiff/decree holder, was of no consequence to affect the decree, unless such adjustment or payment is brought to the notice of the court or the court certifies such adjustment or payment. On the facts and circumstances of the case, the petitioner/judgment debtor cannot be held to have acquired any right to refuse to execute the sale deed in terms of the compromise decree, and as such, the impugned order, in my considered view did not suffer from any jurisdictional error, warranting interference, in exercise of revisional jurisdiction u/s. 115 CPC.

IN THE HIGH COURT OF GAUHATI

CRP 160/2018

Decided On: 25.01.2019

 Partha Mazumder  Vs.  Abhijit Mazumder

Hon'ble Judges/Coram:

Mir Alfaz Ali, J.

Citation: AIR 2019(NOC) 173 Gau

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Whether tenant inducted by decree holder landlord is bound to deliver possession in restitution?

We are unable to share the view expressed by the High Court as in our considered opinion, the status of a bona fide purchaser in an auction sale in execution of a decree to which he was not a party stands on a distinct and different footing from that of a person who is inducted as a tenant by a decree holder-landlord. A stranger auction-purchaser does not derive his title from either the decree holder or the judgment-debtor and therefore restitution may not be granted against him but a tenant who obtains possession from the decree holder-landlord cannot avail of the same right as his possession as a tenant is derived from the landlord. 

4. In our view the above principle will apply in the case in hand as it is the decree holder who has put Respondent 2 in possession and, therefore, when the decree has been set aside he is bound to restore to the judgment-debtor what he gained under the decree and subsequently transferred to Respondent 2.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3307 of 1983

Decided On: 09.02.1994

 Gurjoginder Singh  Vs. Jaswant Kaur and Ors.

Hon'ble Judges/Coram:

S. Mohan and M.K. Mukherjee, JJ.

Citation : 1994 MhLJ1 510

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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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