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ORDER 21

Code of civil Procedure, 1908

 

EXECUTION OF DECREES AND ORDERS

 

Payment under decree

 

1.         Modes of paying money under decree. (1) All money payable under a decree shall be paid as follows, namely

(a)        into the Court whose duty it is to execute the decree [through a bank or by postal money-order or evidence by writing signed by the decree-holder or his authorized agent]

(b)        out of Court to the decree-holder ; or

(c)        otherwise as the Court which made the decree directs.

(2)        Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder.

 

Court Decisions

Scope—Suit for damages-  Award of interest under S. 34, C.P.C from the date of institution of the suit till the date of realization of amount is discretionary with the Curt and cannot be claimed as of right – Interest for the period prior to the institution of the suit can only be claimed and awarded it is permitted by the substantive law or it is specified in writing or in the demand notice but no such interest prior to the period of suit under S. 34, C.P.C can be granted in a decree passed in the suit for damages in absence of the substantive law or if not specified in any form—Decree, in suit for damages, having been passed with interest in terms of S. 34, C.P.C the decree-holder would be entitled to the interest from the date of the suit – PLD 2003 SC 290

                if a notice is not given to the decree-Holder regarding the deposit of the decretal amount in court, the decree-holder can justifiably demand the interest as the deposit of the decretal amount in the Court without notice is not payment of the amount to the decree-holder in terms of O.XXI, R.I, C.P.C – PLD 2003 SC 290

Interest on compensation awarded by way of seeking amendment in the decree under S. 152, C.P.C claim for—Dismissal of such application—Validity—Referee Court had awarded to petitioner compensation with 15% compulsory acquisition charges—Petitioner against non-grant of interest had neither filed appeal not filed cross-objection in appeal filed by Land Acquisition Collector against judgment of Referee Court—Petitioner had made such application one year after dismissal of such appeal—Referee Court or appellate court Had consciously and deliberately not granted interest—Where decree was silent with respect to payment of interest, then same under S. 34(2), C.P.C would be deemed to have been refused by Court—petitioner could not be given claimed interest at such belated stage nor judgment/decree for grant of interest could be amended under S. 152, C.P.C – High Court dismissed revision petition in circumstances. PLD 2003 Pesh. 66

Payment made out of court, without certificate of Court, Appellnts contention is that 'since the objection petition was pending and was adjourned on request of parties, the executing court should not have dismissed it summary but should have passed a speaking order. Respondent's plea is that objection petition was dismissed for want of production of evidence and that payment should have been certified from the court as laid under Order 21 Rules 1 and 2. Any payment made in manner not provided in rule 1 or adjustment made in writing cannot be recognised by executing court.. PLJ 1995 Lah. 226 = PLD 1995 Lah. 107.

 

2.         Payment out of Court to decree-holder. (1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2)        The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder holder fails to show-cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.

(3)        Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.

 

Court Decisions

Adjustment of decree out of Court. Omission to inform executing Court.  It is a accepted rule of law that information of adjustment or satisfaction of decree, out of court, is to be furnished to executing court which has to recognise certification made by the decree-holder. An omission to certify adjustment within statutory period, renders-question of adjustment invalid in eye of law and it is'in complete departure from mandatory provisions of Rule 2 of Order 21 CPC.  PLJ 1994 A JK 25 = PLD 1994 AJ & K 18.

                Whether payment made out of court, without certificate of Court, could be adjusted towards execution of decree. Appellnts contention is that 'since the objection petition was pending and was adjourned on request of parties, the executing court should not have dismissed it summary but should have passed a speaking order. Respondent's plea is that objection petition was dismissed for want of production of evidence and that payment should have been certified from the court as laid under Order 21 Rules 1 and 2. Any payment made in manner not provided in rule 1 or adjustment npt made in writing cannot be recognised by executing court. Objection petition was not competent. PLJ 1995 Lah. 226 = PLD 1995 Lah. 107

Execution of compromise decree—Executing Court was not powerless to cater for a situation where parties entered into an agreement relating to subject-matter of decree or as to such decree's satisfaction or adjustment— Would be illogical and unreasonable to shelve an Executing Court as powerless—Legislature in its supreme wisdom had well provided for such eventualities and cases in provisions of R.2, O.21. C.P.C.—Parties under O.21, R.2, C.P.C. had been allowed option to adjust their respective rights and liabilities under a decree mutually by payment or adjustment, either wholly or partially and out of Court or in Court, in terms of R.2(1), O.21, C.P.C. PLD 2002 Lah.. 268

S. 34—Interest, ward of—Essentials—discretion of Court—Scope—Suit for damages-  Award of interest under S. 34, C.P.C from the date of institution of the suit till the date of realization of amount is discretionary with the Curt and cannot be claimed as of right – Interest for the period prior to the institution of the suit can only be claimed and awarded it is permitted by the substantive law or it is specified in writing or in the demand notice but no such interest prior to the period of suit under S. 34, C.P.C can be granted in a decree passed in the suit for damages in absence of the substantive law or if not specified in any form—Decree, in suit for damages, having been passed with interest in terms of S. 34, C.P.C the decree-holder would be entitled to the interest from the date of the suit – Principles.  PLD 2003 SC 290

  

                Discretion of Court—if a notice is not given to the decree-Holder regarding the deposit of the decretal amount in court, the decree-holder can justifiably demand the interest as the deposit of the decretal amount in the Court without notice is not payment of the amount to the decree-holder in terms of O.XXI, R.I, C.P.C – Principles. PLD 2003 SC 290

Referee Court had awarded to petitioner compensation with 15% compulsory acquisition charges—Petitioner against non-grant of interest had neither filed appeal not filed cross-objection in appeal filed by Land Acquisition Collector against judgment of Referee Court—Petitioner had made such application one year after dismissal of such appeal—Referee Court or appellate court Had consciously and deliberately not granted interest—Where decree was silent with respect to payment of interest, then same under S. 34(2), C.P.C would be deemed to have been refused by Court—petitioner could not be given claimed interest at such belated stage nor judgment/decree for grant of interest could be amended under S. 152, C.P.C – High Court dismissed revision petition in circumstances. PLD 2003 Pesh. 66

Payment of decretal amount outside Court. Trial Court in decreeing plaintiffs suit had directed  him to deposit decretal amount in Court by specified date and in case of his failure to do the same. rival pre-emptor was required to deposit the entire amount and his suit would be deemed to have been decreed to the extent of entire land. Plaintiff (petitioner) did not deposit decretal amount in Court, as per direction of Court, instead he claimed to have paid the amount to vendee (judgment debtor) out of Court. Rival pre-emptor having deposited entire amount in Court, his decree to the extent of entire land was executed. Validity. Provision of O.20, R. 14 C.P.C contains special provision with regard to payment of purchase money in pre-emption decrees. There were separate mode of payment of pre-emption money by pre-emptor to vendee as distinguished from payment of money by judgment debtor to decree-holder. Provision of O.21, R. 2 C.P.C. relates to payment to decree holder and not to judgment debtor while pre-emption amount would be payable by decree-holder to judgment debtor. Plaintiff having paid money to judgment debtor out side Cou-rt, h.is case would, not be covered by provision of O.21. R. 2 C-P.C- Trial Court's direction to deposit decretal amount in Court by specified date having not been complied with, decree of rival pre-emptor who had deposited entire sale amount as per director of Court was rightly executed by Courts betow.  PLJ 2000 Lah. 1880 = 2000 CLC 575.

 

Courts executing Decrees

3.         Lands situate in more than one jurisdiction. Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, anyone of such Courts may attach and sell the entire estate or tenure.

 

4.         Mode of transfer. 1[Transfer to Court of Small Causes] Omitted .

 

Legal Amendments

1.                   Omitted by the A. 0., 1949.

            5.         Mode of transfer. Where the Court to which a decree is to be sent for execution is o situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. But, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed.

 

6.         Procedure where Court desires that its own decree shall be executed by another Court. The Court sending a decree for execution shall send:

(a)        a copy of the decree ;

(b)        a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or where the decree has been executed in part the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and

(c)        a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

 

7.         Court receiving copies of decree, etc., to file same without proof. The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof or the decree of order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.

 

8.         Execution of decree or order by Court to which it is sent. Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction.

 

9.         Execution by High Court of decree transferred by other Court. Where the Court to which the decree is sent for execution is a High Court, the decree shall be executed by such Court in the same manner as if it has been passed by such Court in the exercise of its ordinary original civil jurisdiction.

Application for Execution

10.       Application for execution. Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.

 

Court Decisions

Execution of decree. Judgement-debtors were directed to deposit decretal amount according to their share out of total decretal amount. Validity. Any one of decree-holders could recover entire decretal amount from any one of judgment-debtors.  Where  claim of decree-holder was  based  on acknowledgement receipt jointly executed by judgment-debtors, debt and liability would be incurred jointly and liability of each would be for whole amount under S. 43, of Act, 1872. Finding of Trial Court being legally _ erroneous. Debt having been jointly incurred, liability of each judgment-debtor was for whole amount.   PLJ 1997 Kar. 905 = 1997 CLC 1339.

                Warrant of arrest was issued univer 0. 21 R. 35 CPC. Trial Court ordered decree holder, to file application under 0. 21, R. 32 CPC which was tiled-Warrant of possession and arrest. Issuance of. Revision against. Dismissal of. Writ against. Revisional court has rightly held that execution proceedings did not suffer from any illegality. Execution petition under 0- 21 R. 10 CPC was rightly filed by decree holder and wrong direction was given by trial court to file application under 0. 21, R. 32 CPC, If it is found that impugned Judgment passed by executing court and that of revisional court, is not illegal or Corum non judice. Constitutional petition in such cases will be incompetent. There is no substance to interfere in concurrent findings of lower courts.  PLJ 1998 Lah. 1679 = PLD 1998 Lah. 488 = NLR 1999 Civil 93.

Objection petition had been filed in reference to execution application of decree-holder—Contents of objection petition and relief claimed therein clearly showed that same was within purview of O. XXI, R. 90, C.P.C – Executing courts was duty bound to have considered contents of objection petition and by applying relevant provisions should have decided matter on merits, rather knocking out judgment-debtor on technical ground—Dismissal of objection petition on ground of maintainability could not be sustained—High court set aside impugned order with directions to lower court to decide objection petition considering same to have been under O. XXI, R. 90, C.P.C.  PLD 2003 Lah. 421

 

11.       Oral application. (1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant of he is within the precincts of the Court.

(2)        Written application. 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 namely:

(a)        the number of the suit ;

(b)        the names of the parties ;

(c)        the date of the decree ;

(d)       whether any appeal has been preferred from the decree ;

(e)        whether any, and (if any), what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree ;

(f)        whether any, and (if any), what, previous applications have been made for the execution of the decree, the dales of such applications and their results ;

(g)        the amount with interest (if any), due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed ;

(h)       the amount of the costs (if any) awarded ;

(i)         the name of the person against whom execution of the decree is sought ; and

(j)         the mode in which the assistance of the Court is required, whether

(i)         by the delivery of any property specifically decreed ;

(ii)        by the attachment and sale, or by the sale without attachment, of any property ;

(iii)       by the arrest and detention in prison of any person ;

(iv) by the appointment of a receiver ;

(v)        otherwise, as the nature of the relief granted may require.

 

(3)                 The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.

 

12.        Application for attachment of movable property not in judgment-debtor's possession. Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex the application an inventory of the property to be attached, containing a reasonably accurate description of the same.

 

13.        Application for attachment of immovable property to contain certain particulars.Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot: –

(a)         a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and

(b)         a specification of the judgment-debtor's share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

 

14.        Power to require certified extract from Collector's register in certain cases. Where an application is made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing any transferable interest in, the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.

 

15.        Application for execution by joint decree-holder. (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.

(2)         Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.

 

Court Decisions

Joint decree. Executing court having not been informed of satisfaction or adjustment of decree, out of court, within limitation, appellant is competent to apply for execution of decree as a whole, and executing court is enjoined to carry on execution proceedings in accordance with law. PLJ 1994 AJK25 = PLD 1994 AJ & K 18.

 

Joint decree for possession. Execution of. Whether execution of decree could be sought by one of decree-holders. In joint decree for immovable property, all decree holders or some of them'or any one of them was eligible to move for execution of whole decree for benefit of all decree-holders. PLJ 1994 AJK 25 = PLD 1994 AJ & K 18.

 

16.        Application for execution by transferee of decree. Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same condition as if the application were made by such decree-holder:

Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, an the decree shall not be executed until the Court had heard their objections (if any) to its execution:

Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others. 

 

17.        Procedure on receiving application for execution of decree. (1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.

(2)         Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

(3)         Every amendment made under this rule shall be signed or initialled by the Judge.

(4)         When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application :

Provided that, in the case of decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.

 

18.        Execution in case of cross-decrees. (1) Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court then :-

(a)         if the two sums are equal, satisfaction shall be entered upon both decrees; and

(b)         if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so .much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum.

(2)         This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect ol judgment-debts due by the assignee himself.

(3)         This rule shall not be deemed to apply unless :–

(a)         the decree-holder in one of the suits in which the decrees have been made is the judgment-debtor in the other and each party fills the same character in both suits ; and

(b)         the sums due under the decree are definite.

(4)         The holder of a decree passed against several persons jointly and severally may treat as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons.

Illustrations

          (a)              A holds a decree against B for Rs. 1,000.5 holds a decree against/I for the payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.

(b)            A and B, co-plaintiffs, obtain a decree, for Rs. 1,000 against C, and C obtains a decree for Rs. 1,000 against B. C cannot treat his decree as cross-decree under this rule.

(c)             A obtains a decree against B of Rs. 1,000. C who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000. B cannot treat C's decree as a cross-decree under this rule.

(d)            A.B, C, D and E are jointly and severally liable for Rs. 1,000 under a decree obtained by F. A obtains a decree for Rs. 100 against F singly and applies for execution to the Court in which the joint decree is being executed. F may treat his joint decree as a cross-decree under this rule. 

 

19.        Execution in case of cross-claim under same decree. Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money for each other then: —

(a)         if the two sums are equal, satisfaction for both shall be entered upon the decree; and

(b)         if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.

 

20.        Cross-decrees and cross-claims in mortgage suits. The provisions contained in rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge.

 

21.        Simultaneous execution. The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.

 

22.        Notice to show cause against execution in certain cases. (1) Where an application for execution is made:-

(a)         more than one year after the date of the decree, or

(b)         against the legal representative of a party to the decree, or where an application is made for execution of a decree filed under the provisions of section 44A the Court executing the decree shall issue a notice to the person against whom executions is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than one year having elapse between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2)         Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

 

23.        Procedure after issue of notice. (1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.

2).         Where such person offers any objection to execution of the decree, the Court shall consider such objection and make such order as it thinks fit.

 

23-A.    Deposit of decretal amount, etc. An objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless:-

(a)         in the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its payment; and

(b)         in the case of any other decree, he furnishes security for the due performance of decree. 

 

Court Decisions

Deposit of decretal amount—Objection to the execution—Furnishing of security by the objector—Necessity—Provisions of O. XXI, R. 23-A, C.P.C do not apply to foreign decrees or judgments sought to be executed under S. 44-A, C.P.C – Mere non-furnishing of security would not bar the entertainment of objections to execution. PLD 2003 Kar. 382

A foreign judgment/ decree can be assailed on any of grounds mentioned in clause (a), to (f) of section 13 C.P.C. whereas subsection (3) imposes an obligation on part of District Judge executing a foreign decree to refuse execution of the same if it is shown own its satisfaction that decree falls within any of the exceptions specified in above clauses. Object of Section 44-A C.P.C. seems to be to facilitate execution of a foreign decree in Pakistan by assuming by virtue of fiction of law as it is had been passed by District Court in Pakistan, in-stead of compelling foreign decree holder to file a suit on a foreign judgment. Sub­jection (3)'of section 44-A is a provisions of substantive law whereas Rule 23-A of order 21 C.P.C. is a procedural law. therefore in case of any inconsistency, former shall prevail over latter. PLJ 1997 SC 1219 = 1997SCMR323 = 1997 Law Notes 497.

 

 

Process for Execution

           24.        Process for execution. (1) When the preliminary measures (if any) required by the foregoing rule have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

(2)         Every such process shall bear date the day on which it is issued, and shall be signed by the Judge or such of officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be^ executed.

(3)         In every such process a day shall be specified on or before which it shall be executed.

 

25.        Endorsement on process. (1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in, which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason of the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the Court.

(2)         Where the endorsement is to the effect that such officer is unable to execute the process, the Court shall, examine him touching his alleged inability, and, may if it thinks fit, summons and examine witnesses as to such inability, and shall record the result.

 

26.        When Court may stay execution. (1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof for an order to stay execution, or for any other order relating to (he decree or execution which might have been made by such Court of first instance or appellate Court if execution had been issued thereby, or if application for execution had been made thereto.

(2)         Where the property or person of the judgment-debtor has been seized under an execution the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. .

 

27.        Liability of judgment-debtor discharged. No order of restitution or discharge under rule 26 shall prevent the property 01 person of a judgment-debtor from being re-taken in execution of the decree sent for execution.

 

28.        Order of Court which passed decree or of appellate Court to be binding upon Court applied to. Any order of the Court which the decree was passed, or of such Court of appeal as aforesaid, in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution.

 

29.        Stay of execution pending suit between decree-holder and judgment-debtor. Where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.

Mode of Execution

 

30.        Decree of payment of money. Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention and [*****] prison of the judgment-debtor, or by the attachment and sale of his properly, or by both.

 

31.        Decree for specific movable property. (1) Where the decree is for any specific movable, or for any share in a specific movable it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.

(2)         Where any attachment under sub-rule (1) has remained in force for is months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of movable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application.

(3)         Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months form the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.

 

32.        Decree for specific performance, for restitution of conjugal rights, or for an injunction. (1) Where the party against whom a decree for the specific performance of a contract, or of restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree of the specific performance of a contract or for an injunction by his detention in [*****] prison, or by the attachment of his property, or by both.

(2)         Where the party against whom a decree for a specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in [*****] prison of the directors or other principal officers thereof, or by both attachment and detention.

(3)         Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold : and out of the proceeds the Court may award the decree-holder such compensation as it thinks fit and shall pay the balance (if any) to the judgment-debtor on his application.

(4)         Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or it' made has been refused, the attachment shall cease.

(5)         Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

Illustration

          A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B, A, in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that on sum realizable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution proceedings.

 

Court Decisions

Dismissal of suit on under taking. Perusal of Order 21, Rule 32, C.P.C.. clearly shows that proceedings can be initiated only where party against whom decree has been passed. In instant case, admittedly suit was dismissed on undertaking of writ petitioner and respondents Nos. 6 and 7 and consequently no decree was passed- There being no decree in field in favour of plaintiff Respondents Nos. 1 to 5, no application under Order 21 Rule 32 C.P.C. could be moved by plaintiff/respondents. Order passed by trial Court as well as first appellate Court are coram non judice and not sustainable. PLJ 1999 Lah. 1060 = 1999 CLC 1415.

 

Application for execution :– Warrant of arrest was issued under 0. 21 R. 35 CPC. Trial Court ordered decree holder, to file application under 0. 21, R. 32 CPC which was tiled-Warrant of possession and arrest. Issuance of. Revision against. Dismissal of. Writ against. Revisional court has rightly held that execution proceedings did not suffer from any illegality. Execution petition under 0- 21 R. 10 CPC was rightly filed by decree holder and wrong direction was given by trial court to file application under 0. 21, R. 32 CPC, If it is found that impugned Judgment passed by executing court and that of revisional court, is not illegal or Corum non judice. Constitutional petition in such cases will be incompetent. There is no substance to interfere in concurrent findings of lower courts.  PLJ 1998 Lah. 1679 = PLD 1998 Lah. 488 = NLR 1999 Civil 93.

 

33.        Discretion of Court in executing decrees for restitution of conjugal rights. (1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree against a husband for the restitution of conjugal rights or at any time afterwards, may order that the decree shall be executed in the manner provided in this rule.

(2)         Where the Court has made an order under sub-rule (1), it may order that, in the event of the decree not being obeyed within such period as may be fixed .in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.

(3)         The Court may from time to time vary or modify and order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money as ordered to be paid and again revive the same, either wholly or in part as it may think just.

(4)         Any money ordered to be paid under this rule may be recovered as though it were payable under a decree of the payment of money.

 

34.        Decree for execution .of document, or endorsement of negotiable instrument. (1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.

(2)         The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.

(3)         Where the judgment-debtor objects to the draft, is objections shall be stated in writing within such time, and the Court shall take such order approving or altering the draft, as it thinks fit.

(4)         The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.

(5)         The execution of a document or endorsement of a negotiable instrument under this rule may be in the following form, namely: –

'C.D., Judge of the Court of (or as the case may be), for A. B, in a suit by E.F., against A. B', and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute and endorse the same.

(6)         The Court, or such officer as it may appoint in this behalf, shall cause the document to be registered if its registration is required by the law for the time being in force or the decree-holder desires to have it registered, and may make such order as it thinks fit as to the payment of the expenses of the registration.

 

35.        Decree for immovable property. (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2)         Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3)         Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.

 

36.        Decree for delivery of immovable property when in occupancy of tenant. Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupancy by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.

Court Decisions

Decree holders entitlement for physical 'possession of decretal land. Tenant-at-will of land in question, who was not party in suit filing objection against delivery of actual physical possession to decree holder.. Effect. Trial Court had framed issue as to whether suit was bad' for misjoinder of necessary parties and onus of same was on defendant/ judgment debtor who did not produce any evidence in support of such issue whereupon issue in question, was decided in the negative. Such rinding was maintained upto the Supreme Court. Judgment debtor had submitted objection petition against execution alleging for the first time that respondent being tenant at will in suit land, was not party in suit therefore, execution of decree was not maintainable. Such petition was dismissed and appeal against dismissal of petition met the same fate. Tenant on that very day filed similar objection petition on same grounds alleging that he was not bound by the decree. Record showed that respondent was fully aware of litigation between decree holder and judgment debtor but he was least interested to become party to such litigation. Decree holder has filed application before Tehsildar for recovery of produce wherein statement of respondent was recorded even thereafter, he never strived to become party to litigation. Objection petition of respondent does not seem to be bona fide one and the same appeared to have been filed in collusion with judgment debtor as a device to defeat decree obtained by decree holder after protracted ligation of more than 30 years. Tenants, and servants of judgment debtor were. however, bound of decree against judgment debtor unless they were occupancy tenants. Respondent admittedly was not occupancy tenant therefore, he was bound by the decree in question. Respondent however, after dispossession if he so desires, would have option to avail remedies provided under 0.,21, R. 100 C.P.C. PLJ 2000 Pesh. 122.

 

Arrest and Detention in Prison

37. Discretionary power to permit judgment-debtor to show cause against detention in prison. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in [*****] prison of a judgment-debtor who is liable to be arrested in pursuance of the application the Court, shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show-cause why he should not be [detained in] prison:

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that with the object or 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.

(2)         Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

 

Court Decisions

Non-issuance of show-cause notice—In execution proceedings, decree-holder filed application under O.21, R.37, C.P.C. and notice was issued to the judgment-debtor— On the same day, after issuance of notice by the Executing Court, the decree-holder made an oral statement alleging that the judgment-debtor might leave the territorial jurisdiction of the Executing Court, therefore, the notice was withdrawn and warrant of arrest was issued with a direction that the judgment-debtor would remain in prison till realization of the decretal amount–Judgment-debtor was arrested and confined to prison who remained there for five months—Validity—Without adopting the normal procedure of summoning the judgment-debtor through a show-cause notice for the satisfaction of the decree and of the attachment of movable and immovable property of the judgment-debtor, the Executing Court had acted in haste in ordering the arrest and detention of the judgment-debtor—Order of detention was passed by Executing Court without any lawful justification and the same was set aside. 2002 CLD 1301

 

Issuance of warrant of arrest by Executing Court in the first instance—Instead of issuance of show-cause notice to the judgment-debtor, on apprehension of the decree-holder, the Executing Court issued the warrant of arrest and detained the judgment-debtor in prison—Judgment-debtor deposited a sum of Rs.50,000 with the decree-holder and was released from the prison-Effect—Deposit of the amount showed that the apprehension was not well-founded and instead of straightaway sending the judgment-debtor to jail, he could have been bound down through an acceptable security or surety bond to ensure his presence on each and every date of hearing–Order of detention was set aside by High Court in circumstances. 2002 CLD 1301

 

Mere inability of judgment-debtor to pay decretal amount. No ground for arrest of judgment-debtor. PLJ 1973 Kar. 147; PLD 1973 Note 133 at p. 203.

 

38.        Warrant for arrest to direct judgment-debtor be brought up. Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the cost (if any) to which he is liable, be sooner paid.

 

Court Decisions

Question of prohibition of interest, provisions of Code of Civil Procedure, 1908, referred to above, are repugnant to Injunctions of Islam. PLJ 1992 FSC 153.

 

 

39.        1[Omitted]

 

Legal Amendments

1.              Omitted by Civil Laws (Reforms) Act (XIV of 1994.

 

40.        Proceeding on appearance of judgment-debtor in obedience to notice or after arrest. (1) Where a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be [detained in] prison.

(2)         Pending the conclusion of the inquiry under sub-rue (1) the Courts may, in its discretion, order the judgment-debtor to be detained in the custody of ah officer of the Court or release him on his furnishing security to the satisfaction of the 'Court for his appearance when required.

(3)         Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in [*****] prison and shall in that event cause him to be arrested if he is not already under arrest :

Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.

(4)         A judgment-debtor released under this rule may be re-arrested.

(5)         When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release. –

 

Court Decisions

A petitioner would hot be detained in prison without fulfilling requirements of Section 51 CPC and Order 21 Rule 40 C.P.C. PLJ 2000 Kar. 129 = PLD 2000 Kar. 322.

           

 

Attachment of Property

 

41.        Examination of judgment-debtor as to his property. Where a decree is for the payment of money the decree-holder may apply to the Court for an order that: –

(a)         the judgment-debtor, or

(b)         in the case of a corporation, any officer thereof, or

(c)         any other person. be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents.

 

42.        Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined. Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.

 

43.        Attachment of movable property other than agricultural produce, in possession of judgment-debtor. Where the property to be attached is movable property, other than agricultural produce,, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof

:

Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.

 

44.        Attachment of agricultural produce. Where the property to be attached is agricultural produce the attachment shall be made by affixing a copy of the warrant of attachment: –

(a)         where such produce is a growing crop, on the land on which such crop has grown, or

(b)         where such produce has been cut or gathered, on the threshing-floor or place or treading out grain or the like or fodder-stock on or in which it is deposited, and another copy or on the outer door or on some other conspicuous part of the house in which the judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some other conspicuous part of the house in which the carries on business or personally works for gain or in which he is known to have last resides or carried on business or personally worked for gain; and the produce shall thereupon be deemed by have passed into the possession of the Court.

 

45.        Provisions as to agricultural produce under attachment. (1) Where agricultural produce is attached, the Court shall make such arrangement for the custody thereof as it may deem sufficient and, for the purpose of enabling the Court to make such arrangements, every application for the attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered.

(2)         Subject to such conditions as may be imposed .by the Court in this behalf either in the order of attachment or in any subsequent order the judgment-debtor may tend, cut, gather and store the produce and to any other act necessary for maturing or preserving it; and if the judgment- debtor fails to do all or any of such acts, the decree-holder may with the permission of the Court and subject to the like conditions, do all or any of them either by himself or by any person appointed by him in this behalf, and the costs incurred by the decree-holder shall be recovered from the judgment-debtor as if they were included in, or formed part of, the decree.

(3)         Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil.

(4)         Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be. fit to be cut or gathered, the Court may suspend the execution of the order for such time as it thinks fit, and may, in its discretion, make a further order prohibiting the removal of the crop pending the execution of the order of attachment.

(5)         A growing crop which from its nature does not admit of being stored shall not be attached under this rule at any time less than twenty days before the time at which it is likely to be fit to be cut or gathered.

 

46.        Attachment of debt, share and other property not in possession of judgment-debtor. (1) In the case of: –

(a)         a debt not secured by a negotiable instrument,

(b)         a share in the capital of a corporation,

(c)         other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of any Court, the attachment shall be made by a written order prohibiting:-

(i)          in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court;

(ii)         in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon:

(iii)        in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.

(2)         A copy of such order shall be affixed on some conspicuous part of the Court-house and another copy shall be sent in the case of the debt to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same.

(3)         A debtor prohibited under clause (/) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.

 

47.        Attachment of share in movables. Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.

 

48.        Attachment of salary or allowances of public officer or servant of railway company or local authority. (1) Where the property to be attached is the salary or allowances of a servant of the [State] or a servant of a railway company or local authority, the Court whether the judgment-debtor or the disbursing' officer is or is not within the local limits of the Court's jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and, upon notice of the order to such officer as the appropriate Government may by notification in the official Gazette appoint in this behalf: .

(a)         where such salary or allowances are to be disbursed within the local limits, to which this Code for the time being extends, the officer or other person whose duty it is to disburse the same shall withhold and remit to the Court the amount due under the order, or the monthly instalments, as the case may be;

(b)         where such salary or allowances are to be disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to be disbursed shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time to be disbursed by the aggregate of the amounts from time to time remitted to the Court.

(2)         Where the attachable proportion of such salary or allowance is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate Government in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.

(3)         Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2), shall, without further other notice or other process bind the appropriate Government or the railway company or local authority, as the case may be, while the judgment-debtor is within the local limits to which this Code for the time being extends and while he is beyond those limits if he is in receipt of any salary or allowances payable out of [the revenues of the Central Government or a Provincial Government] or the funds of a railway company carrying on business in any part of Pakistan local authority in Pakistan and the appropriate Government or the railway company or local authority, as the case may be, shall be liable for any sum paid in contravention of this rule.

Explanation. In this rule 'appropriate Government' means: –

(i)          as respects any person in the service of the Central Government, or any servant of a [*****] railway or of a cantonment authority or of the port authority of a major port, the Central Government;

(ii)         [*****]

(iii)        as respects any other servant of the [State] or a servant of any other railway or local authority, the Provincial Government.

 

49.        Attachment of partnership property. (1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.

(2)         The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profit with payment of the amount due under the decree and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require.

(3)         The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same.

(4)         Every application for an order under sub-rule(2) shall be served on the judgment-debtor and on his partners or such of them as are within Pakistan.

(5)         Every application make by any partner of the Judgment debtor under sub-rule (3) shall be served on the decree-holder and on the judgment-debtor, and on such of the other partners as do not join in the application and as are within Pakistan.

(6)         Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners, and all orders made on such application shall be similarly served.

 

50.        Execution of decree against firm. (1) Where a decree has been passed against a firm, execution may be granted: –

(a)         against any property of the partnership;

(b)         against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, partner; and

(c)         against any person who has been individually served as a partner with a summons and has failed to appear:

Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of section 247 of the Contract Act, 1872.

(2)         Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave and where the liability is not disputed, such Court may grant such leave or where such liability disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.

(3)         Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(4)         Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.

 

51.        Attachment of negotiable instruments. Where the property is a negotiable instrument not deposited in a Court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.

 

52.        Attachment of property in custody of Court or public officer. Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued:

Provided that, where such property is in the custody of a Court any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.

 

53.        Attachment of decree. (1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made: –

(a)         if the decrees were passed by the same Court, then by order of such Court; and

(b)         if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until:-

(i)          the Court which passed the decree sought to be executed cancels the notice ; or

(ii)         the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree.

(2)         Where a Court makes an order under clause(a) of sub-rule(7), or receives an application under sub-clause (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

(3)         The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed, to be representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

(4)         Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1), the attachment shall be made, by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court, also be sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.

(5)         The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.

(6)         On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so' long as the attachment remains in force.

 

54.        Attachment of immovable property. (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

(2)         The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate.

 

55.        Removal of attachment after satisfaction of decree. Where: ~

(a)         the amount decreed with costs and all charges and expenses resulting from the attachment of any property and paid into Court, or

(b)         satisfaction of the decree is otherwise made through the Court, or certified to the Court, or

(c)         the decree is set aside or reversed,

the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.

 

56.        Order for payment of coin or currency notes to party entitled under decree. Where the property attached is current coin or currency notes, the Court may, at any time during the continuance of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree to receive the same.

 

57.        Determination of attachment. Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future-date. Upon the dismissal of such application the attachment shall cease.

 

Investigation of Claims and Objections

 

         58.          Investigation of claims to, and objections to attachment of, attached property. (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is no liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit:

Provided that no such investigation shall be made where it appears to the Court that the claim or objection (whether made before or after the sale) has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier, unless the claimant or objector:-

(a)        proves title acquired in good faith and for consideration subsequent to the date of the first attachment;

(b)        proves that his predecessors in interest, whether their interest existed at the time of such attachment or was acquired thereafter, fraudulently omitted to make a claim or objection; and

(c)        impleads all such predecessors-in-interest, as parties.

 

(2)        Postponement of Sale. Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection.

 

Court Decisions

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