C P Code EXECUTION Execution Scheme under the

(C. P. Code) EXECUTION

Execution Scheme under the Code q. Decrees and Orders are “Enforced / implemented” through execution; Substantive Law - Part II (Ss. 36 to 74); Procedural Aspect - O. XXI;

Executing Court (S. 37) The Court “which passed” a decree; q. If passed in exercise of appellate Jurisdiction The Court of first instance or; Notional first instance; q. Transferee Court is also an Executing Court (S. 38);

Transfer of Decree for Execution (S. 39) q From § § Court passing decree to another Court: In whose jurisdiction judgement debtor is based; Or where he holds sufficient property to satisfy decree; If subject matter is sale / delivery of property situated in the local jurisdiction of Transferee Court; For any other reason to be recorded by Court;

Scope & Powers of Executing Court to decide controversies q. All questions relating to execution, discharge or satisfaction of decree to be determined by Executing Court, and not by separate suit (S. 47);

Scope & Powers of Executing Court to decide controversies-II q. Executing Court cannot “go behind the decree” except when the decree is a nullity; q. Decree is a nullity if: § Passed against a dead man; § The Court passing it lacks “Inherent Jurisdiction”;

Powers of Court to enforce Execution (S. 51) q a. b. c. d. e. q Means of Execution: Delivery of property specifically decreed; Attachment & sale / sale without attachment; Arrest and detention in prison ; By appointment of receiver; In any other manner as the nature of relief granted may require; Decree enforceable against legal representatives / ancestral property (Ss. 52 & 53);

Arrest and Detention (S. 55 ) u. Judgement debtor may be arrested in execution of decree at any hour on any day (subject to compliance of prescribed formalities); u. To be brought before Court as soon as practicable; Women exempted from arrest or detention in execution for payment

Arrest and Detention- II Period of detention (S. 58): u. Up to 3 months if value of decree exceeds Rs. 5, 000/-; u. Up to 6 weeks if value exceeds Rs. 2, 000/-; u. No detention if decretal amount is below Rs. 2, 000/-

Attachment • Concept of “Attachment” envisages taking over the properties / assets of judgement debtor to satisfy decree;

Attachment-II Properties liable to be Attached (S. 60): All conceivable movable and immovable properties such as lands, buildings / houses, goods, money, bank accounts, Government securities, bonds, Corporate shares, salaries, rents etc. held by judgement debtor, or someone else on his behalf ;

Attachment-II q Properties exempt from Attachment : Ø Include necessary personal items including those of wife and children; Ø The tools of artisans / implements of cultivators; Ø Houses /buildings of agriculturists, labourers or domestic servants; Ø Rights of personal service; Ø Stipends and gratuities allowed to Government / other authorized pensioners;

Attachment-II q. Properties exempt from Attachment (Contd. ): Ø Wages of labourers and domestic servants; Ø Salaries up to Rs. 1, 000/- and 2/3 of the remainder except in maintenance cases; Ø Salaries of Military personnel; Ø Deposits in Provident Funds; Ø Moneys payable under insurance policy on judgment debtor’s life etc. ;

Other Elementary Provisions (O. XXI) q. Notice of Execution (R. 22): - Not required except (1) : n If filed over two years after date of decree; n Against legal representative of a party to decree; n Against assignee or receiver in insolvency; n In any other case thought fit by Court (2);

Stay of Execution (R. 26) q Execution may be stayed by Executing Court: n On sufficient cause being shown; n To enable judgment debtor to approach Original Court which passed decree or; n To approach Appellate Court; n Executing Court may order restitution of any property seized (2); n Executing Court to require appropriate security or impose conditions upon judgment-debtor before ordering stay (3);

Resistance /Obstruction to possession of Immovable Property (R. 97) n Decree holder /purchaser of decretal property may apply to Court if resisted or obstructed by any person in obtaining possession; n In such cases Court expected to pass order which would take into account recurrence of such resistance for effecting execution again;

Dispossession of Third Party by Decree Holder / Purchaser (R. 99) n Court may direct restoration of possession (R. 100); n All such questions to be determined by the executing Court itself, and not through a separate suit (R. 101);