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EXECUTION

(C.P. Code). EXECUTION. Decrees and Orders are “Enforced / implemented” through execution ;. Substantive Law - Part II (Ss.36 to 74); Procedural Aspect - O. XXI;. Execution Scheme under the Code. Executing Court (S. 37). The Court “which passed” a decree;

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EXECUTION

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  1. (C.P. Code) EXECUTION

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

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

  4. Transfer of Decree for Execution (S. 39) • 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;

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

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

  7. Powers of Court to enforce Execution (S. 51) • 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);

  8. Arrest and Detention (S. 55 ) • Judgement debtor may be arrested in execution of decree at any hour on any day (subject to compliance of prescribed formalities); • To be brought before Court as soon as practicable; • Women exempted from arrest or detention in execution for payment of money (S. 56);

  9. Arrest and Detention- II • Period of detention (S. 58):- • Up to 3 months if value of decree exceeds Rs. 5,000/-; • Up to 6 weeks if value exceeds Rs. 2,000/-; • No detention if decretal amount is below Rs. 2,000/- [S.58 (1A)];

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

  11. Attachment-II • Properties liable to be Attached (S. 60):- • All conceivable movable & 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 ;

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

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

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

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

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

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

  18. Thank You

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