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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

Objections to Execution. Whether objections were malafide and were filed for purpose of delaying exeuction. Judgment-debtor filed objections earlier that property did not belong to him, without specifying who was its owner. Admitteldy, judgment-debtor lives with his two sons to whom property was allegedly gifted, but they themselves took no step uptil 13.1.1983, to object to attachment. Explanation that they were not aware of attachment is not acceptable because they and their father are represented by same counsel. There is no manner of doubt that objections were malafide and were filed with sole purpose of obstructing execution of decree. Dismissed with special costs. PLJ 1995 Kar. 339 = PLD 1995 Kar. 421.

                Intervenor cannot make out case for release of attachment in application under Order 21, Rule 58 only by establishing his possession. He has to establish such possession which law recognized as a right or interest in property. Trespasser or bare licensee not a person who can be said to have any title to a right or interest in property. PLJ 1988 Kar. 273.

                Obvious and only just procedure for investigation of claims and objection to attachment of property could be allowing parties adequate and sufficient opportunity of establishing their respective claims. Held further: Impugned order being manifestly violative of provisions of law, is liable to be set aside on this short ground alone. PLJ 1990 Lah. 67 (DB).

                Attachment order was no longer in the field and had ceased to exist. Counsel of parties had made statement that parties had compromised, consent decree had been passed and that impugned order of attached passed earlier in execution proceedings was no more in the field. Order of sale of property subsequent to statement of parties, without fresh . attachment order being erroneous and not sustainable in law. PLJ 1999 Lah. 1370 = PLD 1999 Lah. 216.

 

Decree of High Court awarding simple interest at the rate of 6 percent per annum from the date of decree had attained finality–Executing Court modifying such decree to include interest from the date as claimed by appellant–Order passed by Executing Court modifying decree of High Court which had attained finality was, thus, arbitrary, capricious and coram-non-judice–Such order of Executing Court was rightly set aside by the High Court–Where essential feature for assumption of jurisdiction were contravened or forum exercised powers not vested in it, or exceeds authority beyond limits prescribed by law, judgment rendered would not only be coram-non-judice but nullity in the by of law and Court would condone delay even if such judgment was challenged beyond period of limitation–Judgment of High Court setting aside impugned order of Executing Court would not warrant interference. PLJ 2002 SC 222

PLD 1971 SC 61; 1986 SCMR 261; 1987 SCMR 1543; PLJ 1987 Quetta 92; PLD 1965 Kar. 293; AIR 1932 Lah.. 534 & PLD 1983 Lah.. 445 ref.

Execution of decree and attachment of property belonging to legal heirs of judgment debtor. Applications for release of property accepted by executing Court which order remained unchallenged. Dismissal of another petition by decree holder for attachment of same property by executing Court with direction to submit fresh "Fard-e-Taleeka.'. Constitutional petition. Petitioner has not placed any document on record to establish that respondent have inherited any property from their predecessor-in-interest and if nothing has come into hand of any heir or other person then he cannot be termed legal representative and cannot be sued for such claim against deceased debtor nor decree passed against deceased judgment debtor be executed against them- It is also admitted fact that earlier order passed on 28.10.1997 by executing Court through which property of Mst. "N" was released, never challenged further before any competent forum wherein learned executing Court discussed in detail point for attachment of said property- Decree holder may furnish "Fard-e-Taleeka' as directed by learned executing Court. Order of learned Civil Judge is eminently just and correct as there is nojurisdictional defect in same. Petitioner has failed to point out any illegality or infirmity in above said order. Petitioner may seek his remedy before executing Court. Petition dismissed.   PLJ 1999 Lah. 1077.

 

59.       Evidence to be adduced by claimant. The claimant or objector must adduce evidence to show that at the date of the attachment he had a title to, or right or interest in, the property attached.

 

60.       Release of property from attachment. Where upon the said investigation the Court is satisfied that the claimant or objector had a title to, or right or interest in, the said property-and the said property was not, by reason of such title, right or interest, wholly or partly liable to attachment, the Court shall make an order releasing the property, wholly, or, as the case may be, to such extent as it is not so liable, from attachment.

 

61.       Continuance of attachment subject to claim of encumbrancer. Where the Court is satisfied that the property is subject to mortgage or charge in favour of some-person, and thinks fit to continue that attachment, it may do so subject to such mortgage or charge.

 

62.       Questions relating to rights, etc., of claimant in attached property to be decided by Court. All questions relating to the right, title or interest of the claimant or objector in the attached property shall be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest].

 

Court Decisions

All questions relating to right, title or interest in attached property whether raised by claimant or by an objector are to be adjudicated upon and determined by Executing Court. If anything more was delivered to auction-purchaser of attached property, judgment-debtor would be entitled to release same in executing proceedings for that question fell within meaning of "satisfaction" of decree. PLJ 1999 Kar. 605 = 1999 CLC 374.

            63. [Omitted]

 

 

Sale Generally


             64.      Power to order property attached to be sold and proceeds to be paid to person entitled. Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.

 

Court Decisions

Judicial sale, setting aside of—After the auction was completed, contributories/shareholders had come forward with a proposal which was to be fulfilled by a third party—On the basis of such proposal the shareholders were seeking to stall the winding up proceedings as also setting aside of the judicial sale—Judicial sale could not be set aside on the basis of such proposal, 2001 CLC 1267

 

65.       Sales by whom conducted and how made. Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.

 

66.       Proclamation of sales by public auction. (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

(2)        Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible:-

(a)        the property to be sold;

(b)        the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

(c)        any incumbrance to which the property is liable;

(d)       the amount for the recovery of which the sale is ordered; and

(e)        every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.

(3)        Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.

(4)        For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.

 

Court Decisions

Joint property being indivisible, same was ordered to be auctioned and from sale proceeds, shares of co-sharers be satisfied by giving them their share of the amount. Property in question, was auctioned and at that time no objection was raised to mode of auction. Proclamation of auction however, did not include reserve price which was necessary so that rights of judgment debtors were properly safeguarded and bid was to have started from that figure. Non-disclosure of reserve price of properly in proclamation, would render the same liable to be struck down. Even if there was no objection from either side still it was duty of Court to conduct auction in accordance with law which has not been done- Trial Court by not f9ing reserve price in proclamation of auction has violated provisions contained in O.21. R. 66 C.P.C.. Impugned judgment/decree was set aside and Court was directed to issue fresh proclamation in accordance with law for auction of property in question, keeping in view observations of High Court mentioned in its judgment.   PLJ 2000 Lah. 1598.

 

67.       Mode of making proclamation. (1) Every proclamation shall be made and published, as nearly may be, in the manner prescribed by rule 64, sub-rule (2).

(2)        Where the Court so directs, such proclamation shall also be published in the official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.

(3)        Where property is divided into lost for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given.

 

68.       Time of sale. Save in the case of property of the kind described in the proviso to rule 34, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least thirty days in the case of immovable property, and of at least fifteen days in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the Court-house of the judge ordering the sale.

 

69.       Adjournment or stoppage of sale. (1) The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment:

 

Provided that, where the sale is made in, or within the precincts of the Court-house, no such adjournment shall be made without the leave of the Court.

(2)        Where a sale is adjourned under sub-rule (1) for a longer period than seven days, a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

(3)        Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given .to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the same.

 

70.       Saving of certain sales. Nothing in rules 66 to 69 shall be deemed to apply to a case in which the execution of a decree has been transferred to the Collector.
 

71.       Defaulting purchaser answerable for loss on re-sale. Any deficiency of price which may happen on a re-sale by reason of the purchaser's default and all expenses attending such re-sale, shall be certified to the Court or to the Collector or subordinate of the Collector, as the case may be, by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.

 

72.       Decree-holder not to bid for or buy property without permission. (1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

(2)        Where decree-holder purchases, amount of decree may be taken as payment. Where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may, subject to the provisions of section 73, be set off against one another, and the Court executing the decree shall enter up satisfaction of decree in whole or part accordingly.

(3)        Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder. 

 

73.       Restriction on bidding or purchase by officers. No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.


Sale of Movable Property

 

74.       Sale of agricultural produce. (1) Where the property to be sold is agricultural produce the sale shall be held: –

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

(b)        if such produce has been cut or gathered, at or near the threshing-floor or place for treading out grain or the like or fodder-stack on or in which it is deposited:

Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the produce is thereby likely to sell to greater advantage.

(2)        Where, on the produce being put up for sale:-

(a)        a fair price, in the estimation of the person holding the salaries not offered for it, and

(b)        the owner of the ^produce or a person authorized to act in his behalf applies to have the sale postponed till-the next day or, if a market is held at the place of sale, the next market-day, the sale shall be postponed accordingly and shall be than completed, whatever price may be offered for the produce.

 

75.       Special provisions relating to growing crops. (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day and the sale shall not be held until the crop has been cut or gathered and is ready for storing.

(2)        Where the crop from its nature does not admit of being stored, it may be sold before it is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending and cutting and or gathering it. 

 

76.       Negotiable instruments and shares in corporations. Where the property to be sold is a negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction authorize the sale of such instrument or share through a broker., 

 

77.       Sale by public auction. (1) Where movable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be re-sold.

(2)        On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.

(3)        Where the movable property to be sold is a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

 

78.       Irregularity not to vitiate sale, but any person injured may sue. No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery. 

 

79.       Delivery of movable property, debts and shares. (1) Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser.

(2)        Where the property sold is movable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.

(3)        Where the property sold is a debt riot secured by a negotiable instrument, or is a share in a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser or prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.

 

80.       Transfer of negotiable instruments and shares. (1) Where the execution of a document or the endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is required to transfer such negotiable instrument or share, the judge or such officer as the may appoint in this behalf execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by the party.

(2)        Such execution or endorsement may be in the following form namely:-
AB by CD, judge of the Court of (or as the case may be), in a suit by EF against AB.

(3)        Until the transfer of such negotiable instrument or share, the Court may, by order, appoint some person to receive any interest or dividend due thereon and to sign a receipt for the same; and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.

 

81.       Vesting order in case of other property. In case of any movable property not therein before provided for, the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.


Sale of Immovable Property

 

82.       What Court may order sales. Sale of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.
           

83.       Postponement of sale to enable judgment-debtor to raise amount of decree. (1)Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale or such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may, on his application postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.

(2)        In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 66, to make the propose mortgage, lease or sale:

Provided that all monies payable under such mortgage, lease or sale shall be paid, not to the judgment-debtor, but, save in so far as a decree-holder is entitled to set-off such money under the provisions of rule 72, into Court:
Provided also that no mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.

(3)        Nothing in this rule shall be deemed to apply to a sale or property directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.

 

84.       Deposit by purchaser and re-sale on default. (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent. On the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

(2)        Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 12, the Court may dispense with the requirements of this rule.

 

85.       Time for payment in full of purchase money. The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteen day from the sale of the property:
Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

 

86.       Procedure in default of payment. In default of payment within the period mentioned in the last preceding rule, the deposit may if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

 

87.       Notification on re-sale. Every re-sale of immovable property, default of payment of the purchase-money within the period allowed for .such payments shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

 

88.       Bid of co-sharer to have preference. Where the property sold a share of undivided immovable property and two or more persons of whom one is a co-sharer, respectively bid the same sum for such property or for any lot the bid shall be deemed to be the bid of the co-sharer.

 

89.       Application to set aside sale on deposit. (1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court:

(a)        for payment to the purchaser, a sum equal to five per cent of the purchase-money; and

(b)        for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2)        Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application be entitled to make or prosecute an application under this rule.

(3)        Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

 

Court Decisions

Sale of property—Scope and application of O. XXI, Rr. 89, 90, 91 & 92, C.P.C. PLD 2003 SC 500

Suit for specific performance decreed on application for compromise for payment of earnest money. Judgment debtor failed to appear and contest execution proceedings and according his property which was plot of land, allotted in his name by K.DA., auctioned. Judgment debtor filing objection application regarding non service of notice title to property etc.. Validity. Judgment debtor was duly served in person with notice of sale of property for satisfaction of decree on 12.8.1991 for bearing before Additional Registrar on 22.8.1991. but he did not bother to appear either in person or through authorised agent. Presumption of correctness and regular performance is always attached- to official acts-despite personal service of notice on judgment debtor, he was served by way of publication in daily "Morning News' for hearing fixed but without any response. Likewise, delay in deposit of costs, of sale proceedings on part of decree holder having been condoned and being past and closed transaction cannot be re-opened in present proceedings. It is needless to emphasise that judgment debtor having slept over matter for nearby 12 years after consent decree and for more than 10 years of this execution, as come up with irrelevant and frivolous objections to defeat sale which has been duly accepted and confirmed by this Court (High Court) followed by deposit of purchase money, delivery of vacant possession and transfer of property in 'favour of auction purchaser. At any event, there is no evidence to hold that market value of plot in question was Rs. 5 million at time of public notice for sale of property. Argument that it is worth Rs. 10 million at moment is without any substance as past and closed transaction cannot be re-opefted at instance of inscrupulous litigant who has kept silent for pretty long time after consenting to decree and not paying paltry amount of earnest money as undertaken by him in judicial proceedings, to which sanctity is always attached. Application is made after more than 5^ years in as much as judgment debtor was personally served with notice of sale on 12.8-1991. Application is liable to dismissal on this preliminary ground alone. There is absolutely no merit in this application which is accordingly dismissed with special costs of Rs. 5,000,/-. PLJ 1998 Kar. 304.

 

 

90.       Application to set aside sale on ground of irregularity or fraud. Where any immovable property has been sold in execution of a decree the decree-holder, or any person entitled to share in a rateable distribution of assists, or whose interests are affected by the sale, may apply to the Court to set side the sale on the ground of a material irregularity or fraud in publishing or conducting it:

            Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the fact proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity of fraud; and

[Provided further that no such application shall be entertained unless the applicant deposits such amount, not exceeding twenty per cent. of the sum realized at the sale, or furnishes such security as the Court may direct].

 

Court Decisions

Sale in execution of decree, setting aside of—Dismissal of objection petition as being not competent for having been filed under O. XXI, R. 10, C.P.C – Validity—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

Sale of property—Judgment-debtors applied for setting aside the sale under O. XXI, R. 90, C.P.C which was dismissed by the Banking court on the grounds that the objectors were directed to deposit twenty per cent. Of the sale proceeds but they had not complied with the direction; that they were afforded an opportunity to deposit the entire decretal amount and retain the property but in vain and that instead of taking the shelter of O. XXI, R. 89, C.P.C. in response to the notice given under O. XXI, R. 90, C.P.C which suggested that their conduct was not above board—Validity—Held, judgment-debtor was well within his right to seek annulment of a sale through an application under O. XXI, R. 89, C.P.C. or an application under R. 90, O. XXI, C.P.C. which had different connotations and parameters—If the judgment-debtor had elected to file an application under O. XXI, R. 90, C.P.C. the same had to be decided within the parameters thereof and not on the basis of his refusal to deposit the decretal amount or accept the offer to purchase the property over and above the price at which it was auctioned or procure a buyer who could offer an amount over and above the auction price—No adverse inference could also be drawn with regard to credentials of the judgment-debtor and conduct—objection petition filed by the judgment debtors could not be said to be tainted with mala fides in the face of the huge amount deposited by them in compliance with the orders of supreme court and High court—No tangible proof f sale of his shares in the property by one of the judgment-debtors being available, his locus standi to object to the sale could not be assailed—Banking Court having dismissed the application under O. XXI, R. 90, C.P.C . Without recording evidence of the parties, although the same required holding of an investigation and recording of findings based on evidence adduced by the parties, Supreme court declined to decide the matter on merits and remanded the case to the Banking Court with the direction that the application under O. XXI, R. 90, C.P.C. filed by the judgment-debtors be decided on merits after recording evidence of the parties, within a specified period. PLD 2003 SC 500

                Second proviso—Sale in execution of decree, setting aside of—Deposit of 20% of auction price—proper stage—Second proviso to O. XXI, R. 90, C.P.C. is an enabling and directory provision empowering Court to direct deposit of amount not exceeding 20% of sum realized at sale or furnish security—Such discretion must be exercised by court according to judicial standard—Words “as the controls and regulates its earlier part—Objection petition can be dismissed, if direction of court is not complied with. PLD 2003 Lah. 421

                Sale in execution of decree, setting aside of – Dismissal of objection petition for non-deposit of 20% amount under O. XXI, R. 90, C.P.C – Validity—Execution Court had never issued direction to judgment-debtor to make deposit or furnish security—Executing court by taking resort to second proviso to O. XXI, R. 90, C.P.C was not justified to dismiss objection petition—high Court set aside impugned order of High court would be considered as sufficient direction by court in terms of the rule and compliance made by judgment-debtor. PLD 2003 Lah. 421

Execution of decree—Sale of property—Scope and application of O. XXI, Rr. 89, 90, 91 & 92, C.P.C. PLD 2003 SC 500

Auction proceedings without first deciding objection petition. Effect. Conduct of auction proceedings without first deciding objection petition was materially irregular and seriously violative of rights of party concerned. PLJ 1999 Pesh. 74 = 1999 MLD 2127.

 

Non-attachment of property before auction thereof.  Plea that property having already been mortgaged with bank was not required to be attached was of no consequence. Mortgage was to secure interest of creditor bank while attachment thereof, would bring the same within domain of Court. Order of auction, thus. could not be confused with order of attachment. Entire auction proceedings and confirmation of auction through impugned order was, thus. set aside as being void and illegal. PLJ 1999 Pesh. 74 = 1999 MLD 2127.

 

Objection against sale of property in execution of decree without depositing specified amount.  No deposit could automatically be made by objector unless specifically ordered by Court. Punitive aspect of Order 21, R. 90 C.P.C. could be invoked only when objector fails to comply orders of deposit passed by court. Objection petition against sale. therefore, was not liable to be thrown out on account of the fact that no order was passed by Executing Court for deposit of specified amount. PLJ 1999 Pesh. 74 = 1999 MLD 2127.

 

91.       Application by purchase to set aside sale on ground of judgment-debtor having no saleable interest. The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

Court Decisions

Execution of decree—Sale of property—Scope and application of O. XXI, Rr. 89, 90, 91 & 92, C.P.C. PLD 2003 SC 500

 

92.       Sale when to become absolute or be set aside. (1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute.

(2)        Where such application is made and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

(3)        No suit to set aside and order made under this rule shall be brought by any person against whom such order is made.

 

Court Decisions

Sale, confirmation of—While processing a sale or confirming the same, the Executing Court is expected to act as a prudent common man/commercial person, 2001 CLC 1267

 

93.       Return of purchase money in certain cases. Where a sale of immovable property is set aside under rule 92 the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.

 

94.       Certificate to purchaser. Where a sale of immovable property has become absolute, the Court shall grant a 'certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

 

95.       Delivery of property in occupancy of judgment-debtor. Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

 

96.       Delivery of property in occupancy of tenant. Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary made, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.

 

Resistance to Delivery of Possession of Decree-holder or Purchaser

 

97.       Resistance or obstruction to possession of immovable property. (1) Where the holder of a decree for the 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.

(2)        The Court shall fix a day for investigation the matter and shall summon the party against whom the application is made to appear and answer the same.

 

Court Decisions

Execution petition by landlord against tenant after his ejectment from rented premises. Objection petition filed by petitioner during execution proceedings on basis of agreement to sell while suit for specific performance was in field. Whether petitioner could get possession of property invoking provision of O.21. R-99 when he had already been dispossessed. Rule-99 provides resistance or obstruction by bonafide claimant who has caused resistance or obstruction and he is any person other than judgment-debtor claiming in good faith to be in possession of property in his own account or on account of some person other than judgment-debtor. Petitioner stands dispossessed and still matter whether agreement in respect of disputed property is genuine or not or what charge or interest is created in respect of disputed property in favour of petitioner is to be determined by court concerned, and if petitioner is successful to prove same he can be put into possession by court concerned. Provision of O.21. R. 99 read with provisions of Rules 97, 98 as well as Section 74 of C.P.C. are not available to petitioner. PLJ 1998 Lah. 1088 = PLD 1998 Lah. 411 = NLR 1998 Civil 388.

 

98.       Resistance or obstruction judgment-debtor. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that applicant be put into possession of the property, and where the applicant is still resisted 01. obstructed in obtaining possession, the Court may also, at the instance of the applicant order the judgment-debtor, or any person acting at his instigation, to be detained in t* * *] prison for a term which may extend to thirty days.

 

99.       Resistance or obstruction by bona fide claimant. (1) Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than judgment-debtor) claiming in good faith to be in possession of the property on his own account or an account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.

 

Court Decisions

Objection petition– Dismissal of. Revision petition- Burden of proof. Order 21 Rule 99 CPC provides a protection to person in possession, not to be dispossessed in process of execution proceeding, provided he fulfil requirement given therein, therefore to establish his locus standi burden is on him to prove so to resist execution of decree upheld up to High Court. Conductof a person, resisting execution of decree, in terms of Order 21. Rule 99 r/w Section 47 CPC is very relevant. Order 21 Rule 99 CPC has laid much stress on good faith and bonafide of objection, all such ingredients and. characteristic are totally lacking m favour of objection. Objection that evidence recorded between original parties cannot be taken as evidence to dislodge defence of objection. Executing court, no doubt U/S 47 CPC can determine certain questions of facts arising out during execution proceeding but law is well settled that. it cannot go beyond original judgment and decree. Objector being a pr4y to entire proceeding in original suit cannot take any exception to evidence or material brought on file. Revision petition is dismissed.   PLJ 1998 Pesh. 31 = 1998 CLC 385.

 

100.     Dispossession by decree-holder or purchaser. (1) Where any person other than the judgment-debtor dispossessed of immovable-property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2)        The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

 

Court Decisions

Restoration of possession. Objection petition filed by a person who was son of one of defendants against whom decree had become final upto level of Supreme Court. Objector was l4ing under same roof alongwith his father. Had petitioner any genuine claim, he would have come forward on first round of litigation and would have contested suit under Section 9 of Specific Relief Act. Petitioner has some before executing court and filed objectiort petition in order to frustrate order of Supreme Court. This is impermissible, such plea cannot be examined in revisional jurisdiction which is discretionary as well as equitable in nature and cannot be extended in favour of such applicants. PLJ 1995 Lah. 559 = 1995 CLC 777.

 

Separate suit barred—Courts below had acted without lawful authority and without jurisdiction while refusing to decide objection application only on the ground that possession had been delivered and decree had been satisfied—Case was remanded and would be deemed to be pending before Executing Court with direction to decide objection application in accordance with law, as seprate suit was barred. PLJ 2002 Lah.. 1536

                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.

 

101.     Bona fide claimant to be restored to possession. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of property.

 

102.     Rules not applicable to transferee pendente lite. Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

 

 103.    Certain orders conclusive and suit barred. All questions arising as to title, right or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite-party, or between an applicant under rule 100 and the opposite-party shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter.


Court Decisions

Question pertaining to execution and satisfaction of decree—Such questions were to be decided by Executing Court—Questions relating to title and possession were also required to be decided by Executing Court—Separate suit has been expressly barred—Courts below had acted without lawful authority and without jurisdiction while refusing to decide objection application only on the ground that possession had been delivered and decree had been satisfied—Case was remanded and would be deemed to be pending before Executing Court with direction to decide objection application in accordance with law. PLJ 2002 Lah.. 1536

 

HIGH COURTS AMENDMENTS LAHORE

R. 1: Add the following explanation to sub-rule(l) of rule 1 :-
'Explanation. The judgment-debtor may, if he so desires, pay the decretal amount, or any part thereof, into the Court under clause (a) by postal money order on a form specially approved by the High Court for the purpose. [11-7-1933].

R. 5:    In the last sentence after the words District Court and before the words of the district insert the words or the Court or any judge having jurisdiction is the place where the decree is to be executed to whom power to receive plaints has been delegated by the District judge. (23-3-1938).

R. 10:  Add the following proviso of rule 10:-

Provided that if the judgment-debtor has left the jurisdiction of the Court which passed the decree, or of the Court to which the decree has been sent, the holder of the decree may apply to the Court within whose jurisdiction the judgment-debtor is, or to the officer appointed in this behalf, to order immediate execution on the production of the decree and of an affidavit of non-satisfaction by the holder of the decree pending the receipt of an order of transfer under Section 39. (7-4-1932).

R. 17: For the words the Court may reject…. to be fixed by it in sub-rule (1) of rule 17 substitute the following words:-

the Court shall fix a time within which the defect shall be remedied, and if it is not remedied within such time, may reject the application. (7-4-1912).

R. 22: The words two years shall be substituted for the words one year wherever they occur, in rule 22.

Add the following at the end of the rule:-

 Failure to record such reasons shall be considered an irregularity not amounting to a defect in jurisdiction.

R.26:   For the words the Court may substitute the words Court shall, unless, sufficient cause is shown to the contrary, in sub-rule(3).

R.31:   In sub-rule (2) of rule 31 for the word six substitute the words three. Add the following proviso after sub-rule(2):-

 Provided that the Court may, in any special case, according to the special circumstances thereof, extend the period beyond three months; but it shall in no case exceed six months in all.

In sub-rule (3) of rule 31 for the words six months substitute the following words:-three months or such other period as may have been prescribed by the Court. (7-4-1932). R.32: In sub-rule (3) of rule 32 for the words one year substitute the words three months.

Add the following proviso to sub-rule(3) of rule 32 :-

Provided that the Court may for sufficient reasons on the application of the judgment-debtor, extend the period beyond three months; but it shall in no case exceed one year in all.

In sub-rule (4) for the words one year, substitute the words three-months or such other period as may have been prescribed by the Court. (7.4.1932)
           R.39: In sub-rule (5) of rule 39 delete the words in the civil prison occurring in two places.

R.43:   Re-number the rule 43 as sub-rule (1), and add the following further proviso and sub-rules (2) and (3) of rule 43:-

and provided also that, when the property attached consists of livestock, agricultural implements or other articles which cannot conveniently be removed, and the attaching officer does not act under the first proviso to this rule, he may, at the instance of the judgment-debtor or of the decree-holder or of any person claiming to be interested in such property, leave it in the village or place where it has been attached:

(a)        in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in Form No. 15-A if Appendix E to this Schedule, with one or more sufficient sureties for its production when called for, or

(b)        in the charge of an officer of the Court, if a suitable place for its safe custody be provided, and the remuneration of the officer for period of fifteen days at such rate as may from time to time be fixed by High Court, be paid in advance, or

(c)        in the charge of a village Lambardar of such other respectable person as will undertake to keep such property, subject to the orders of the Court, if such person enters in to a bond in Form No. 15-B of Appendix E with one or more sureties for its production.

(2)        Wherever an attachment made under the provisions of this rule ceases for any of the reasons specified in Rule 55, 57 or 60 of this Order, the Court may order the restitution of the attached property to the person in whose possession it was before attachment.

(3)        When property is made over to a custodian under sub-clause (a) or (c) of clause (1), the Schedule of property annexed to the bond shall be drawn up by the attaching officer in triplicate and dated and signed by:-

(a)        the custodian and his sureties;

{b)        the officer of the Court who made the attachment;

(c)        the person whose property is attached and made over; and

(d)       two respectable witnesses.

One copy will be transmitted to the Court by the attaching officer and placed on the record of the proceedings under which the attachment has been ordered, one copy will be made over to the person whose property is attached and one copy will be made over to the custodian. (13-12-1928).

Insert the following as rules 43-A to 43-D:-

43A.    (1) Whenever attached property is kept in the village or place where it attached, the attaching officer shall forthwith report the fact to the Court, and shall, with his report, forward a list of the property seized.

(2)        If attached property is not sold under the first proviso to rule 43 or retained in the village or place where it is attached under second proviso to that rule, it shall be brought to the Court-house and delivered to the proper officer of the Court.

(3)        A custodian appointed under the second proviso to rule 43 may at any time terminate his responsibilities by giving notice to Court of his desire to be relieved of his trust and delivering to the proper officer of the Court the property made over to him.

(4)        When any property is taken back from a custodian, he shall be granted a receipt for the same.

43B.     (1) Whenever attached property kept in the village or place where it is attached is livestock, the person at whose instance it is retained shall provide for its maintenance, and if he fails to do so, and if it is incharge of an officer of the Court, it shall be recorded to the Court-house

Nothing in this rule shall prevent the judgment-debtor, or any person claiming to be interested in such stock, from making such arrangements for feeding the same as may not be consistent with its safe custody.

(2)        The Court may direct that any sums which have been expended by the attaching officer or are payable to him, if not duly deposited or paid, be recovered from the proceeds of property, if sold or be paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachment from any party to the proceedings.

43C.    When an application is made for the attachment of livestock or other movable property, the decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for 15 days if within three clear days before the expiry of any such period of 15 days the amount of such costs for such further period as the Court may direct be not paid into Court, the Court, on receiving a report thereof from the proper officer, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

43D.    Any person who has undertaken to keep attached property under rule 43 (1) (c) shall be liable to be proceeded against as a surety under Section 145 of the Code and shall be liable to pay in execution proceedings the value of any such property wilfully lost by him.

R. 45: Add the following to sub-rule (1) of rule 45:-

and with every such application such charges as may be necessary for the custody of the crop up to the time at which it is likely to be fit to be cut or gathered shall be paid to the Court.

R. 53: (1) Add the following words to sub-rule (l)(b) of rule 53 after the words to such other Court.

and to the Court to which it has been transferred for execution.
(2) In sub-rule (l)(b) (ii), substitute the words the attached for the words its own and insert the following between the words executed or and his judgment-debtor-

with the consent of the said decree-holder expressed in writing or with the permission of the attaching Court.

(3)        In sub-rule (6), substitute the words with the knowledge, for the words after receipt of notice. (7-4-1932).

R. 54: At the end of sub-rule(2) of rule 54, substitute semi-colon for full-stop and add:-

where the property is land situated in a Cantonment, copies of the order shall also be forwarded to the Cantonment Board and to the Military Estates Officer in whose area that Cantonment is situated.

Add as sub-rule (3) of rule 54:-

(3)        The order shall take effect as against persons claiming under a gratuitous transfer from the judgment-debtor, from the date of the order of attachment, and as against other from the time they had knowledge of the passing of the order of attachment or from the date of the proclamation, whichever is earlier.

R. 58:  Add the following proviso under sub-rule (1) of rule 58;-

and that if an objection is not made within a reasonable time of the first attachment the objector shall have no further right to object to the attachment and sale of the same property in execution of the same decree, unless he can prove a title acquired subsequent to the date of the first attachment. (7-4-1972).

R. 66:  Add the following words to clause (e) of sub-rule (2) of rule 66:-

Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property; but the proclamation shall include the estimate, if any, given by either or both of the parties.

After sub-rule (2) of rule 66 add the following as sub-rule (3), and renumber the existing sub-rules (3) and (4) as (4) and (5) respectively:
(3) Where the property to be sold is-movable property which has been made over a custodian under sub-clause (a) or(c) of clause (1) of R. 43 of this Order, the Court shall also issue a process by way of notice to the custodian, directing him to produce the property at the place of sale at a time to be specified therein, with a warning that if he fails to comply with the directions, he shall be liable to action under Section 145 of the Code of Civil Procedure. (16-5-1932).

R.68:   Lahore and N. W.F.P. In rule 68 for the words thirty read fifteen and for the words fifteen read one week (1.4.1992).

R. 69: In sub-rule (2) of rule 69 thirty days shall be substituted for seven days.

R. 75:  Lahore and N.W.F.P. In sub-rule (2) of rules 75 after the word stored add the words or can be sold to greater advantage in an unripe state. (12-5-1909 and 28-4-1938).

R. 89: In sub-rule (1) of this rule for the words any person … acquired such sale, substitute the words any person claiming any interest in the property sold at the time of the sale or at the time of making the application under this rule or acting for or in the interest of such a person.

R. 90: Add the following proviso:-

Provided further that no such sale be set aside on any ground which the applicant could have put forward before the sale was conducted.

R. 98: (1) After the words at his instigation of rule 98 where they occur add the following words:-

or on his behalf. (2) Add the following at the end of the rule 98-
such detention shall be at the public expense and the person at whose instance the detention is ordered shall not be required to pay subsistence allowance. (7.4.1992 and 2.9.1994).

R. 99: Insert in rule 99 the words to have a right after the words in good faith. (3.3.1993).

R. 103:  Lahore and N.-W.F.P. Add the following proviso:-

Provided further that no such sale be set aside on any ground which the applicant could have put forward before the sale was conducted. (7-4-1932).

R. 104:  Add the following rule 104: –

104. For the purpose of all proceedings under this Order, service on any party shall bedeemed to be sufficient if effected at the address for service referred to in Order VIII, rule 11, subject to the provisions of Order VII, rule 24, provided that this rule shall not apply to the notice prescribed by rule 22 of this Order.


N.-W.F.P.

R. 6: Read rule 6 as Rule 6 (1) and add the following sub-rule (2)
(2) Such copies and certificates may, at the request of the decree-holder, be handed over to  him or to such person as he appoints, in a sealed cover to be taken to the Court to which they are to be sent.

R. 16:  For the first proviso, to rule 16 substitute the following proviso:-
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 unless an affidavit by the transferor admitting the transfer is presented with the application, the decree shall not be executed, until the Court has heard his objections (if any) to its execution.

R. 22:  The words two years shall be substituted for the words one year wherever they occur.

R. 26: For may in sub-rule (3) read shall unless good cause to the contrary is shown.

R. 29: After rule 29 the following rule shall be added:-
29A. When suit under rule 63 of this Order is pending, the Court in which such suit is filed may if it considers that execution of the former decree should be stayed, intimate the fact to the executing Court, which shall thereupon stay execution until the suit is decided.

R. 31:  In sub-rules (2) and (3) of rule 31 for the*-words six months substitute three months.

Add in sub-rules (2) and (3) to such period, exceeding six months in all as it may think fit.

R. 32:  In sub-rule (3) of rule 32 for the words for one year substitute the words for three months or such further period not exceeding one year in the whole as may be fixed by the Court.

R. 39: For sub-rule (4) of rule 39 substitute that following: All payments shall be made to the officer-in-charge of the civil prison.
In sub-rules (5) of rue 39 omit the words in the civil prison.

R. 43D: Add the following further proviso:-

 Provided further that when the attached property consists of livestock or articles which cannot conveniently be removed, and the attaching officer does not act under the first provision to this rule, he may leave it in the village or place where it has been attached in the charge of a village Lambardar of such other respectable person as will undertake keep the property, subject to the orders of the Court if such person enters into a written bond for its production.
Any person who has so undertaken to keep attached property may be proceeded against as surely under Section 145 of the Code and shall be liable to pay in execution proceedings the value of any such property wilfully lost by him.

R.53:   In sub-rule (l)(b) and in sub-rule (4), of rule 53 after the words to such other Court add the words or to any other Court to which the decree has been transferred for execution.

In sub-rule (l)(b) (ii), of rule 53 for the words its own decree, substitute the words the attached decree..

In sub-rule (6) of rule 53 for the words after receipt of notice thereof, read after receipt of notice or with the knowledge thereof.

R.54: (1) Add the following at the end of sub-rule (2) of rule 54:-
and also when the property is situate within Cantonment limits, in the office of the Local Cantonment Board and Military Estates Officer concerned.

(2)        Add the following as sub-rule (3) of rule 54:-

(3)        The order shall take effect as against purchasers for value in food faith from the date when a copy of the order is affixed on the property, and against all other transferees from the judgment-debtor from the date on which such order is made.

R.57:   Cancel the concluding sentence of rule 57, upon the dismissal … shall cease, and substitute the following:-

In dismissing such application the Court shall direct whether the attachment shall continue or cease. In the absence of any such directions the attachment shall be deemed to cease.

R.66:   Add the following to clause (e) of sub-rule (2) of rule 66: –

 Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property; but the proclamation shall include the estimate, if any, given by either or both of the parties.

R.69:   In sub-rule (2), of rule 69 for the word seven, substitute the word thirty and add the following proviso:-

Provided that the Court may dispense with the consent of any judgment-debtor, who has failed to attend in answer to a notice issued under rule 66.

R.72:   For sub-rule (1) of rule 72 substitute the following: –

(l) The holder of a decree, in execution of which the property is sold, shall be competent to bid for or purchase the property without express permission of the Court, provided that the Court may on application of the judgment-debtor and for sufficient cause debar him from so bidding or purchasing.

R.89:   In sub-rule (1) of rule 89 for the words either owning, before such sale, substitute either claiming any interest in such property at the time of sale or at the time of application, or acting for or on the interest of such person.

R.98: After the words at his instigation of rule 98 wherever they occur, add the words or on his behalf, and after the words in the civil prison add the words at the expense of the State.

R.99:   For the words other than the judgment-debtor substitute the words of rule 99 other than the persons mentioned in rules 95 and 98.

 

SINDH

R. ll:    Add the following as clause (ff) to sub-rule (2) of rule 11:-

(ff) Whether the original decree-holder has transferred any part of his interest in the decree and, if so, the date of the transfer and the name and address of the parties to the transfer.

R.24:   Add the following proviso to sub-rule (2) of rule 24:- .
Provided that First Class Subordinate Judge may, in his special jurisdiction, send a process to another subordinate Court in the same district for execution by the proper officer in that Court.

R.46:   Add the following as rules 46-A to 46-1.

 

Procedure when debt or any movable property not in possession of judgment-debtor, attached.

46-A.   The Court may in the case of debt (other than a debt secured by a mortgage or a charge or by a negotiable instrument) and any movable property not in the possession of the judgment-debtor which has been attached under R.46 or R. 51 of this Order, upon the application of the attached creditor, issue notice to any person liable to pay such debt or deliver or account for such movable property (such person to be hereinafter called the garnishee calling upon him either to pay or deliver into Court the due from or the property deliverable by him to such judgment-debtor, or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show-cause why he should do not do so:

Provided that if the debt or, property in respect of which the application aforesaid is made is of value beyond the pecuniary jurisdiction of the Court, the execution case shall be sent, if the attaching Court is the Karachi Small Cause Court, to the High Court, if it is any other Court, to the District to which the said Court is subordinate; and thereupon the High Court or as the case may be, the District Court or any other competent Court to which such case may be transferred shall deal with it in the same manner as if the case had been originally instituted in that Court.

Such application shall be supported by an affidavit verifying the facts alleged and stating that in the belief of the deponent the garnishee is indebted to the judgment-debtor.

 

Procedure when garnishee does not forthwith pay amount, etc.

46B.     Where the garnishee does not forthwith pay or deliver into Court the amount due from or the property deliverable by him to the judgment-debtor so much thereof as is sufficient to satisfy the decree and the cost of execution, or does not appear and show cause in answer to the such notice, and no such order being made execution may issue as though such order were a decree against him.

 

Procedure when garnishee disputes his liability.

46C.    Where garnishee disputes his liability, the Court may order that any issue or question necessary, or the determination or the liability shall be tried as if it were an issue in a suit and upon the determination of such issue shall make such order as may seem just.

 

Procedure when debt or property belongs to a third person

46D.    Where it is suggested or appears to be probable that the debt or the property attached belongs to some third person or that any third person has a lien or a charge on or an interest in it, the Court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt or property and prove the same.

 

Order to be made on hearing such person

46E.     After hearing such third person and any other person who may subsequently be ordered to appear, or in the case of such third or other person not appearing when ordered, the Court may pass order as is hereinbefore provided, or make such other order upon such terms, of any, with respect to the lien, charge or interest (if any), of such third or other person as may seem fit and proper.

Payment or delivery under order to be a valid discharge

46F.     Payment or delivery made by the garnishee on a notice under rule 46A or under any such order as aforesaid shall be a valid discharge to him as a against the judgment-debtor and any other person ordered to appear as aforesaid, for the amount paid or levied or, as the case may be, property delivered, although such order may be set aside or reversed.

 

Procedure regarding debts owing from a firm

46G.    Debts owing from a firm carrying on business within the jurisdiction may be proceeded against under rules 46A to 46E of this Order, although one or more members of such firm may be resident outside the jurisdiction: Provided that where any person having control or  management of the partnership business or any member of the firm within the jurisdiction is served with the garnishee notice, any appearance by any member pursuant to such notice shall be a sufficient appearance by the firm.

 

The costs to be in discretion of Court

46H.    The cost of any application made under rule 46A and of any proceeding arising therefrom or incidental thereto shall be in the discretion of the Court.

 

Orders appealable

461.     An order made under rule 46B or 46E shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were decree.

R.104.               Add the following as Rule 104:

(1) Subject to the provisions of sub-rules (3) and (4) the address for service filed under rule 19 of Order 7 or rule 11 of Order 8, or, if the address has been subsequently altered under rule 24 of Order 7 or under rule 12 of Order 8, the amended address shall hold good during all execution proceedings.

(2)        Every application for execution shall .stale the address for service given by the opposite-party in the Court which passed the decree or the Court to which the decree was last transferred for execution and notices and processes shall issue to such address.

(3)        Rules 22,23,24 and 25 of Order 7 shall apply, so far as may be, to execution proceedings.

(4)        If an appeal or an application for review or revision against the decree or order sought to be executed is pending at the time when the application for execution is filed, the provisions of rule 38 of Order 41 shall, so far as may be, apply to such execution proceedings.

(5)        Nothing in sub-rules (1) to (3) of rule 104 shall apply to the notice prescribed by Rule 22 of Order 21.

 

 

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