Attachment and Sale under the Code

of Civil Procedure
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Attachment and Sale Code of Civil Procedure

Table of Cases
1. Desh Bandhu v. Anand, (1994) 1 SCC 131.
2. Ghanshyam Das v. Anant Kumar, AIR 1991 SC 2251.
3. Jagdish v. Mangal Pandey, AIR 1986 All 182.
4. Lakshmibai v. Santappa, AIR 1964 Bom 342.
1. Manilal Mohanlal v. Sayed Ahmed, AIR 1954 SC 349.
2. Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693.
1. Muthuarman Elementary School Committee v. Nobel Raj, J., AIR 1975 Mad 19.
2. Narayanappa v. Akkulappa, AIR 1965 A.P. 215.
3. Rangoon Municipality v. Ram Behari, AIR 1939 Rang 432.
1. State of Punjab v. Dina Nath, (1984) 1 SCC 137.
2. Subbarao v. Official Receiver, AIR 1965 A.P. 52.
3. Teeka and others v. State of U.P., AIR 1961 SC 803.

1.0. Introduction
The passing of a decree by a competent court conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit, thus creating substantive rights in favour
of the decree-holder. However, lately it has been seen that instead of following the terms and
conditions of the decree, judgment-debtors have been placing a number of obstacles in the way of a
decree-holder, who seeks to realize the fruits of the decree passed in his favour by a competent court.
In fact, such a trend has become so prevalent that it has forced the Supreme Court to opine that the
difficulties of a litigant begin when he has obtained a decree[1].
Conscious of the significance and importance of giving effect to the decree and orders passed by
competent courts, the Code of Civil Procedure provides for elaborate rules for the execution of decrees.
In an attempt to ensure that a decree-holder is able to realize the fruits of the decree, the Code of Civil
Procedure gives a number of modes for the execution of decrees. One of these modes of execution of
decrees is the process of attachment and sale of the properties of the judgment-debtor.

Since, a judgment-creditor does not by virtue of his judgment, get a right to the property of the
judgment-debtor, his remedy is not by way of a suit but by attachment and sale in execution. While
through the process of attachment the court informs the world that the property so ordered to be
attached is in its view and no existing rights and liabilities should be altered; through the process
of sale of the properties of the judgment-debtor, the Court diverts the money so collected to the
decree-holder in satisfaction of his claim.

However, by its very nature property may be of different types. Therefore, a judgment-debtor may
possess either movable or immovable properties, or both. Thus, keeping in regard the differing
characteristics of these two types of properties, the Code of Civil Procedure prescribes different
procedures for the attachment and sale of movable and immovable properties.

It is the endeavour of this project to examine the process of attachment and sale of movable and
immovable property in a money decree and to intellectualize the reasons for the different process for
the attachment and sale of movable and immovable property.
2.0. Research Methodology
2.1. Aims and Objectives
The aim and objective of this
project is to make a detailed study
of the process of attachment and
sale of movable and immovable
properties in a money decree. In
addition, this project also
endeavors to intellectualize the
reasons for the different
procedures for the attachment and
sale of movable and immovable
property.
2.2. Scope
The scope of this project is limited
to the study of the various
provisions regarding attachment
and sale of property in execution of
decrees provided for in the Code of
Civil Procedure.
2.3. Research Questions
 What do you mean by
movable and immovable property?
What are the various
procedures for the attachment of
judgment-debtors property in
execution of money decrees?
What are the various
procedures for the sale of
judgment-debtors property in
execution of money decrees?
What is the rationale for the
provision of different procedures
for attachment and sale of movable
and immovable properties in
execution of money decrees?
2.4. Style of Writing
Both analytical and descriptive
styles of writing have been used in
this project. While an attempt has
been made to analyze the reasons
for different procedures for
attachment and sale of movable
and immovable properties in
execution proceedings; the process
of attachment and sale itself is
mainly descriptive.
2.5. Sources of Data
Both primary and secondary sources of data in the form of books and case law have been used in this
project.
2.6. Mode of Citation
A uniform mode of citation has been used throughout this project.

3.0. Movable and Immovable Property

3.1. General
Under all legal systems, amongst material things, an important distinction is drawn between movable
and immovable properties. Though in some cases it is easy to classify property as moveable or
immovable, for instance land is clearly an immovable property while car is clearly a movable property,
in other cases it sometimes becomes difficult to classify the same. Thus, it becomes imperative to
understand the conceptual difference between these two classes of objects[2] as they are governed by
different rules in all the legal systems of the world.

3.2. Jurisprudential Analysis

Jurisprudentially, among material things, property can be described as movable or immovable
property. In the 12th Edition of Salmond on Jurisprudence it has been stated that:
Considered in its legal aspects, an immovable property, that is to say a piece of land, includes the
following elements:-

1) A determined portion of the earths surface.

2) The ground beneath the surface down to the centre of the world. All the pieces of land
in England meet together in one terminable point at the earths centre.
3) Possibly the column of space above the surface ad infinitum.[3]
4) All objects which are on or under the surface in its natural state; for example, minerals
and natural vegetation. All these are part of land, even though they are in no way
physically attached to it. Stones lying loose upon the surface are in the same category as
the stone in a quarry.
5) Lastly, all objects placed by human agency on or under the surface, with the intention of
permanent annexation. These become part of land, and lose their identity as separate
movable or chattels; for example; building walls and fences. Provided that the requisite
intent of permanent annexation is present, no physical attachment to the surface is
required. A wall built of stones without mortar or foundations is part of the land on which
it stands. Conversely, physical attachment, without the intent of permanent annexation, is
not in itself enough. Carpets, tapestries, or ornaments nailed to the floor or walls of a
house are not thereby made part of the house. Money buried in the ground is as much a
chattel as money in its owners pockets.[4]
In contrast, in its legal aspects, a movable property has been described as any material thing, which is
not immovable.
It is also pertinent to note that under the law the distinction between movable and immovable is not
restricted to material things alone and even rights have been classified as movable and immovable.
The general rule is that a right has in this respect the same quality as its subject matter.[5] Thus, all
rights over immovable things are themselves classified as immovable and in the same manner all
rights over movable property are classified as movable.

3.3. Movable and Immovable Properties under Indian Laws

In consonance with the jurisprudential understanding, numbers of laws in India have attempted to
define Immovable Properties. Also in keeping with Salmonds analysis, under all the below
mentioned enactments, any property, which is not immovable, is treated as Movable Property.
Section 3 (26) of the General Clauses Act, 1897 defines an immovable property as:
Immovable Property shall include land, benefits to arise out of land, and things attached
to the earth, or permanently fastened to anything attached to the earth.
However, this is not an exhaustive definition and in fact, Section 2 (6) of the Registration Act,
1908states that:
Immovable property includes land, building, hereditary allowances, rights to way, light,
ferries, fisheries or any other benefit to arise out of land, and things attached to earth, or
permanently fastened to anything which is attached to the earth, but not standing timber,
growing crops nor grass.
In contrast, Section 3 of the Transfer of Property Act, 1882, though not attempting to define
immovable property states that:
Immovable property does not include standing timber, growing crops or grass.
The practical significance of the distinction between movable and immovable property was clearly
brought out by the Division Bench of the Allahabad High Court in the case of Jagdish v. Mangal
Pandey[6] wherein in relation to trees on land it was stated that:
Anything attached to the certain would normally be treated as immovable property and a
tree which is attached to the earth and seeks its nourishment and sustenance from the soil
in which it stands will be deemed to be attached to the earth with the only distinction that
if it the tree of the kind which is usually used as timber and is of sufficient size so as it can
be used as such and is intended to be severed from the soil reasonably thereafter, it may
not be treated as immovable property.
4.0. Attachment
4.1. General
In Ghanshyam Das v. Anant Kumar,[7] while dealing with the provisions of the Code of Civil Procedure
relating to the execution of decrees and orders, the Supreme Court had stated that the Civil Procedure
Code contains elaborate and exhaustive provisions for dealing with the question of execution of
decrees. More specifically, Section 51[8] of the Code of Civil Procedure enumerates in general terms
the various modes of execution of a decree, one amongst which is the attachment of the property of
the judgment-debtor.
4.2. Object of Attachment
Execution of a decree takes place by attachment of property of judgment-debtor.[9] In fact, the
attachment of the judgment-debtors property is the preliminary step to the sale of property in
execution proceedings and the underlying object of attachment of the property is to give notice to the
judgment-debtor not to alienate his property to anyone and also to the general public not to purchase
or to deal with the property of the judgment-debtor attached in execution proceedings.[10]

4.3. Effect of Attachment

Section 64[11] of the Code of Civil Procedure makes it manifest that attachment has merely the effect
of preventing private alienation to the prejudice of claims under attachment. It conveys no title,
charge, lien or priority in favour of the attaching creditor.[12] In fact, in Subbarao v. Official
Receiver[13] the Andhra Pradesh High Court while dealing with the involuntary sale of the judgment-
debtors flat under a decree of a court, stated that an order of attachment does not prevent a transfer
by operation of law and nor does it create any interest or lien.
4.4. Property which can be Attached
Section 60[14] of the Code of Civil Procedure enumerates the properties, which are liable to
attachment in execution of a decree. It states that all saleable property (movable or immovable)
belonging to the judgment-debtor or over which or the portion of which he has a disposing power
which he may exercise for his own benefit may be attached and sold in execution of a decree against
him. More specifically, in State of Punjab v. Dina Nath,[15] wherein the right to officiate at funeral
ceremonies was held to be not saleable, it was stated by the Supreme Court that Section 60 of the
Code of Civil Procedure is not exhaustive and specific non-inclusion of a particular species of property
under Section 60 is therefore, not of any consequence if it is saleable[16] otherwise.
However, regard must be had to the proviso to sub-section (1) of Section 60, which enumerates
certain properties such as necessary wearing apparel, cooking vessels, beddings, tools of artisans,
implements of husbandry, houses of agriculturalists, wages, salaries, pensions and gratuities,
compulsory deposits, right to future maintenance etc. and declares that the properties specified
therein are exempt from attachment and sale in the execution of a decree.
In fact, Section 60 and the Proviso to Section 60 of the Code of Civil Procedure came in for
consideration in the case of Muthuarman Elementary School Committee v. Nobel Raj, J.[17] In the
instant case the grant relating to the elementary school had been earmarked for a specific purpose of
maintenance of the building. While dealing with the objection to the attachment of such a grant the
Madras High Court stated that:
Assuming that the payment of rent is not part of maintenance of the school building, the
Court fails to see how the said rule (Rule k-c of the proviso to Cl 1 of Section 60) can be
invoked against the attachment of money. The rules framed by the Madras Elementary
Education Act are not statutory rules. That apart there is nothing in Section 60, Civil
Procedure Code itself to debar the decree-holder from attaching the grant, provided the
money in the hands of the Government can be said to belong to the judgment-debtors. In
this connection, the fact is admittedly the Government has already sanctioned the grant
and the bill for the amount in question is said to have already been passed. Once a bill has
been passed the grant would be similar to salary payable to a servant. Salary is also
attachable as money under Section 60, Civil Procedure Code, subject to clauses (i) and (i-a)
of the proviso to the said section. Also, there is no dispute that even salary payable in
future is attachable subject to the above said clauses of the proviso.
4.5. Attachment of Movable Property
The attachable property belonging to the judgment-debtor may be either movable or immovable in
nature. Rules Nos. 43 to 53 of Order 21 of the Code of Civil Procedure lay down the different ways in
which the movable property belonging to the judgment debtor is to be attached keeping in regard the
nature of the specific movable property sought to be attached.
4.5.1. Attachment Of Movable Property (Other Than Agricultural Produce) In Possession Of The
Judgment-Debtor

Rule No. 43[18] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of all
movable property, other than agricultural produce and property not in the possession of the judgment-
debtor, for both of which provision is made in Rules 44 to 46 of Order 21 of the Code of Civil
Procedure.[19]
Under Order 21, Rule 43, the attachment is legally effected only by actual seizure. Significantly,
inTeeka and others v. State of U.P.,[20] wherein the judgment-debtors had forcibly entered the house of
the decree-holder with intent to remove the attached cattle, the Supreme Court while elaborating on
the phrase actual seizure stated that unlike a prohibitory order under Rule 46, attachment by actual
seizure involves a change of possession from the judgment-debtor to the court and that in case the
property is kept in the custody of the decree-holder, the decree-holders custody is not in his capacity
as a decree holder but only as a bailee of the sapurdar.
Significantly, keeping in view the varied nature of the movable properties that may be attached under
this rule the Proviso to Order 21, Rule 43 of the Code of Civil Procedure provides 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.
4.5.2. Attachment of Agricultural Produce
Rule No. 44[21] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of
agricultural produce. While Section 2 (13) of the Code of Civil Procedure provides that movable
property includes growing crops, the term agricultural produce as used in the Code of Civil Procedure
is confined to growing crop standing on the land on which it has grown or cut crop lying on the
threshing floor or fodder stack. Elaborating on this point, in Rangoon Municipality v. Ram Behari,[22]
wherein an objection was raised against the attachment of the grains belonging to the judgment-
debtor, the Court held that once the grain is separated from the chaff it ceases to be agricultural
produce and there is no protection against its attachment and the grain as well as the straw both can
be attached.
Unlike other movable property agricultural produce of either description cannot be attached
by actualseizure as provided in Order 21, Rule 43 of the Code of Civil Procedure. The custodia legis in
the case of agricultural produce on attachment is only symbolic and is not validly created unless the
rules of affixture herein provided are strictly complied with.[23] The reason is that no property can be
declared to be attached unless, first, the order for attachment has been issued, and secondly, in
execution of that order the other things prescribed by the rules in the Code have been done.[24]
4.5.3. Attachment Of Debt, Share And Other Property Not In Possession Of Judgment-
Debtor
Rule No. 46[25] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of
debt, share and other movable property not in the possession of the judgment-debtor.
Under Order 21, Rule 46 of the Civil Procedure Code the attachment of debts (other than negotiable
instruments), shares in a corporation or other movable property not in the possession of the judgment-
debtor is legally effected by a prohibitory order, as contradistinguished from the requirement of actual
seizure under Order 21, Rule 43.
4.5.4. Attachment Of Judgment-Debtors Share Or Interest In Movable Property Of Co-
Owners
Rule No. 47[26] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of
judgment-debtors share or interest in movable property of co-owners.
Under Order 21, Rule 47 of the Civil Procedure Code the attachment of judgment-debtors share or
interest in movable property of co-owners is legally effected by a prohibitory order. This is essentially
because a share or interest in movable property is incapable of actual seizure and the attachment by a
prohibitory order is the only proper course where such share or interest is to be proceeded against.[27]
4.5.5. Attachment of Negotiable Instruments
Rule No. 51[28] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of
negotiable instruments, which are neither deposited in the court nor in the custody of a public officer.
Under Order 21, Rule 51 of the Civil Procedure Code the attachment of negotiable instruments, which
are neither deposited in the court nor in the custody of a public officer, is legally effected by actual
seizure. As regards negotiable instruments it does not matter whether the negotiable instrument is in
possession of the judgment-debtor or not. Furthermore, the actual seizure of the negotiable instrument
is necessary as there is always a danger that third parties may bona fide become possessed of the
negotiable instrument, and if a prohibitory order is held to be a valid attachment, they would be
prejudiced by such an order of which they may know nothing.[29]
4.5.6. Attachment of Property in Custody of Court or Public Officer
Rule No. 52[30] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of
judgment-debtors property in possession of another court or a public officer.
Under Order 21, Rule 52 of the Civil Procedure Code the attachment of judgment-debtors property in
possession of another court or a public officer is legally effected by issuing a notice to the court or
public officer having the custody of the property, to hold the property subject to the orders of the Court
issuing the notice.
4.5.7. Attachment of Salary or Allowance of a Public Servant or a Private Employee

Rules No. 48 and 48-A of Order 21 of the Code of Civil Procedure deal with the mode of attachment
of salary of the judgment-debtor.
Under Order 21, Rules 48 and 48-A of the Civil Procedure Code the attachment of judgment-debtors
salary or allowance is legally effected by issuing a prohibitory notice to the dispersing officer.
However, it is pertinent to mention here that if such prohibitory notice is not served to the dispersing
officer, the order of attachment will have no effect. Furthermore, the territorial jurisdiction is not
considered in this case, and wherever the judgment-debtor is working his salary can be attached.[31]

4.6. Time of Attachment of Movable Property

Section 62 of the Code of Civil Procedure provides that an attachment of movable property in a
dwelling house cannot be made by entering the house after sunset and before sunrise.
4.7. Attachment of Immovable Property
The attachable property belonging to the judgment-debtor may also be immovable in nature. Rule No.
54[32] of Order 21 of the Code of Civil Procedure lays down the directions as to the mode of
attachment of immovable property, which are mandatory in nature and not merely directory.[33]
Under Rule 54 of Order 21 of the Code of Civil Procedure the attachment of immovable property is
legally effected by the issuance of an order by the Court 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. Such an order is to 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. Also, where the property to be
attached is a land paying revenue to the Government, a copy of the order is to be affixed in the office
of the Collector of the District in which the land is situate and, where the property is land situate in a
village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.
4.8. Various Modes of Attachment of Property

Type of Mode of
Property Attachment
Movable Property (other than By actual seizure thereof. But if such
agricultural produce) in property is subject to speedy and
possession of the judgment natural decay, to the expense of
debtor keeping it is likely to exceed its
value, it may be sold.

Movable Property not in By an order prohibiting the person in

possession of the judgment possession thereof from giving it to
debtor the judgment debtor.
Negotiable Instrument neither By actual seizure and bringing it to
deposited in a court nor in the Court.
custody of a public officer

Debt not secured by a negotiable By an order prohibiting the creditor

instrument from recovering the debt and the
debtor from paying the debt.

Share in the capital of a By an order prohibiting the person in

corporation whose name the share stands from
transferring it or receiving dividend
thereon.

Share or interest in movable By a notice to the judgment debtor

property belonging to the prohibiting him from transferring or
judgment debtor and another as charging it.
co-owner

Salary or allowance of a public By an order that the amount shall

servant or a private employee (subject to the provisions of Section
60), be withheld from such salary or
allowance either in one payment or
by monthly installments.

Partnership Property By making an order

(a) charging the interest of the
partner in the partnership property
(b) appointing a receiver of the
share of the partner in the profits
(c) directing accounts and
inquiries
(d) ordering sale of such interest.

Property in custody of court or By notice to such court or officer,

public officer requesting that such property, and
any interest or dividend thereon,
may be held subject to the order of
the court.

Agricultural produce By (i) affixing a copy of the warrant

(a) in case of growing crop, on land
on which such crop has grown; and
 (ii) also by affixing a copy on the
house in which the judgment-debtor
ordinarily resides, carries on
business or personally works for
gain, or last resided, carried on
business or personally worked for
gain.

Immovable Property By an order prohibiting the

judgment-debtor from transferring
or charging it in any manner and all
persons from taking any benefit
from such transaction or charge.
* Source: C.K. Thakker, Civil Procedure (14th Edition, Lucknow: Eastern Book Company, 2001) at 390-
392.

5.0 Sale
5.1. General
A decree may be executed by attachment and sale or by sale without attachment of any property.
[34]Sections 65 to 74 and Rules 64 to 106 of Order 21 of the Code of Civil Procedure deal with the
material provisions relating to sale and delivery of properties.
5.2. Power of Court
Rule No. 64[35] of Order 21 of the Code of Civil Procedure states that 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 a sufficient portion
thereof, shall be paid to the party entitled under the decree to receive the same.
However, it must be noted that in Desh Bandhu v. Anand,[36] wherein the Court, while confronted with
the twin issues of sale of properties situated outside the territorial jurisdiction of the Executing Court
and the failure of the judgment-debtor to take objection in time, it was opined that:
The term may in this rule does not confer a discretion on the Court to order or refuse to
order a sale; it is obligatory on it to do so when a valid application for such order and a
valid attachment has been made.
The Court also went on to add that:

This rule enjoins that in all execution proceedings the Court has to enquire whether sale
of part of the property would be sufficient to satisfy the decree. Care should be taken to
attach only such property whose value as nearly as may be is equal to the amount due
under the decree. This is not just a discretion but an obligation and a mandate of the
legislature which cannot be ignored.
5.3. Sale by Whom Conducted and How Made
Rule No. 65[37] of Order 21 of the Code of Civil Procedure enacts that every sale in execution of a
decree shall be conducted by an officer of the Court or by such person as the Court may appoint in this
behalf, in a public auction.
5.4. Proclamation of Sale
A proclamation of sale is necessary
for providing information to the
intending purchasers. Thus, Rule
No. 66[38] of Order 21 of the Code
of Civil Procedure enacts that the
Court shall cause a proclamation of
the intended sale to be made in
the language of the Court. Such a
proclamation is to be drawn up
after the notice to the decree-
holder and the judgment-debtor.
An absence of a notice causes
irremedial injury to the judgment-
debtor and sale without such a
notice will be a nullity.[39]
5.4.1. Purpose of a Proclamation
It has been stated that a proclamation of sale is meant for the information of intending purchasers and
not of the judgment-debtor.[40] However, in Narayanappa v. Akkulappa,[41] it was stated that the
purpose of issuing a proclamation is two-fold:
(a) it protects the interests of the intending purchasers by giving them all material information
regarding the property to be sold; and

(b) it protects the interests of the judgment-debtor by facilitating the fetching of proper market price
for his property and by preventing it being knocked down at public auction for a price much below the
market price.

5.4.2. Contents of the Proclamation

Rule No. 66 (2)[42] of Order 21 of the Code of Civil Procedure enacts that the proclamation, which is
to be drawn up shall state the time and place of sale, and specify as accurately as possible, the
following particulars
(a) the property to be sold, or, where a part of the property would be sufficient to satisfy the decree,
such part;
(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 encumbrance 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.

5.4.3. Mode of making Proclamation

In order to protect the judgment-debtors and for the purpose of ensuring that the properties of such
persons shall not be put to sale unless due publicity is given to the fact that a sale is to be held and a
proper opportunity is afforded to bidders to attend the sale after notice is given[43] Rule No.
67 ofOrder 21 has been incorporated in the Code of Civil Procedure.
Rule No. 67 of Order 21 of the Code of Civil Procedure provides that every proclamation shall be
made and published in the manner prescribed by Order 21, Rule 54 (2) for attachment for immovable
property, i.e., a copy of it shall be affixed on a conspicuous part of the property, and then of the Court
house, and in the Collectors office, in the case of revenue paying land. Also, if the Court so directs, it
shall also be published in local Official Gazette, or in a local newspaper, or in both.

5.5. Time for Sale

Rule No. 68[44] of Order 21 of the
Code of Civil Procedure provides
that there shall be an interval of
fifteen days in the case of
immovable property and seven
days in the case of movable
property between the date of sale
and the date of affixing the copy of
the proclamation in the Court-
house.
However, it should be noted that the seven days rule does not apply to a sale of movables subject to
speedy and natural decay.[45]

5.6 Sale of Movable Property

Rules No. 74 to 81 of Order 21 of
the Code of Civil Procedure provide
for specific provisions for the sale
of movable properties.
5.6.1. Place of Sale of Movable Properties
Sale of all movable properties in execution of a decree should ordinarily be held at some place within
the jurisdiction of the court ordering such sale.[46] In the case of Lakshmibai v. Santappa,[47] where
certain ornaments were attached in Belagaum and the judgment-debtor urged that they should be
directed to be sold at Bombay on the ground that they would probably fetch a better price and it was
found by the Court that a fair price could be had on the spot, it was held that there was no good and
sufficient reason to depart from the usual practice.
5.6.2. When Sale Becomes Absolute in Movable Properties
Sub Rule 2 of Rule 77 of Order 21 of the Code of Civil Procedure enacts that the sale of a movable
property becomes absolute as soon as the purchase money is paid to the officer or other person
holding the sale and no order of Court is necessary as in the case of the sale of immovable property.
5.6.3. Sale of Agricultural Produce
Rule No. 74[48] of Order 21 of the Code of Civil Procedure makes special provision for the sale of
agricultural produce. It provides that in case of agricultural produce, the sale shall be held on or near
the land on which the crop is standing or where the crop has been harvested, at or near the place
where the crop is lying.
It is also pertinent to note that Sub Rule 2 of Rule 74 of Order 21 states that such a sale can be
postponed, if the court feels:
(i) that the fair price is not offered; and

(ii) the owner thereof applies for such postponement.

5.6.4. Sale of Negotiable Instruments and Shares in Corporations

Rule No. 76[49] of Order 21 of the Code of Civil Procedure makes special provision for the sale of
negotiable instruments and shares in corporations. It provides that in case of negotiable instrument or
a share in corporation, the court has power to order sale through a broker instead of by public auction.
It is pertinent to note here that this rule is only permissive. A court is not bound to authorize the sale of
negotiable instrument or share in a corporation through a broker.[50]

5.6.5. Effect of Irregularity on Sale of Movable Property

Rule No. 78[51] of Order 21 of the Code of Civil Procedure stipulates that even in case of irregularity
in publishing or conducting of sale, the sale of moveable property in execution decree can not be said
aside. Thus, the sale does not ipso facto become void for reason of violation of provisions relating to
the sale.[52]
However, a person sustaining any injury by reasons of irregularity in the sale at the hand of any other
person may sue such a person for compensation, or, if such a person is the purchaser, for recovery of
the specific property and for compensation in default of such recovery.[53]

5.7. Sale of Immovable Property

Rules No. 82 to 96 of Order 21 of
the Code of Civil Procedure provide
for specific provisions relating to
the sale of immovable properties.
5.7.1. Courts Competent to Order Sale
Rule No. 82[54] of Order 21 of the Code of Civil Procedure stipulates that except the small cause
court, any other court can give the order of sale of immovable property.
5.7.2. Postponement of Sale
In order to prevent the sale of the immovable property of the judgment-debtor in cases where the
decree can be satisfied by private alienation of such property, Rule No. 83 of Order 21 has been
incorporated into the Code of Civil Procedure. It provides that on an application by the judgment-
debtor, the court in its discretion may give the judgment debtor some more time, to try and alienate
the property in order to raise the requisite some of money.
5.7.3. Deposit and Payment of Price
Rule Nos. 84 to 87 of Order 21 of the Code of Civil Procedure deal with the deposit and payment of
price in cases of sale of immovable property. Immediately after the sale of immovable property, the
purchaser must deposit 25 percent of purchase money, unless such requirement is dispense with by
the court.[55] The purchaser must pay the balance of the purchase-money within fifteen days of sale.
[56] In case of a failure on the part of the purchaser to deposit the amount, the advance may be
forfeited and fresh sale ordered, after the issuance of a fresh notification.[57]
Explaining the ambit and the scope of the provisions of Rules 84 to 86 of Order 21 of the Code of
Civil Procedure, the Supreme Court in the case of Manilal Mohanlal v. Sayed Ahmed,[58] has stated
that:
Having examined the language of the relevant rules and the judicial decisions bearing upon the
subject we are of the opinion that the provisions of the rules requiring the deposit of 25 per cent of the
purchase-money immediately, on the person being declared as a purchaser and the payment of the
balance within 15 days of the sale are mandatory and upon non-compliance with these provisions
there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser
without depositing 25 per cent of the purchase-money in the first instance and the balance within 15
days. When there is no sale within the contemplation of these rules, there can be no question of
material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting
purchaser renders the sale proceedings as a complete nullity.

5.7.4. Setting aside of Sale

Rule Nos. 89 to 92 of Order 21 of the Code of Civil Procedure deal with the setting aside of sale.
They provide that when a property is old in execution of a decree, an application for setting aside sale
may be made under these provisions by the persons and on the grounds mentioned therein.[59]
5.7.5. Confirmation of Sale
In contrast with the provisions relating to the sale of movable properties, no sale of immovable
property shall be come absolute until it is confirmed by the Court.[60] Also, Rule No. 92 of Order
21of the Code of Civil Procedure, which deals with the procedure for confirmation of sale, provides that
where no application to set aside the sale is made under Rules 89, 90 or 91 or where such
application is made and is disallowed by the Court, the court shall make an order confirming the sale,
and thereupon the sale shall become absolute.
6.0. Rationale
6.1. General
The Code of Civil Procedure, which lays great significance to the need for the availability of elaborate
and comprehensive provisions for the enforcement of the decrees and orders of the Court, provides for
a varied procedure for the process of attachment and sale of the movable and immovable properties of
the judgment-debtor by the decree-holder in his bid to realise the fruits of the decree.

6.2. Different Procedures and Reasons

A variety of reasons can be attributed for the existence of different procedures for the attachment and
sale of movable and immovable properties in the Code of Civil Procedure. Some of these differences
and the reasons for the same are:

(a) Ascertainment of Location One of the main differentiating characteristics between movable
and immovable property is the factor of mobility. While an immovable property is fixed, a movable
property is not, thus making it easier to ascertain the location of an immovable property. However, the
same is not the case with immovable property.
(b) Value As a general rule, an immovable property is generally large and of more expensive
nature than a movable property. Therefore, he confirmation of the sale of the immovable property is
often required, while in a movable property the confirmation of sale is not necessary.
(c) Custody Since the location of an immovable property is well known and because by its very
nature an immovable property cannot be hidden, taking an immovable property into custody is never a
problem and the same can be done at any such time. However, in the case of movable property it
might not be easy to ascertain its location and a movable property can be hidden, to deny the court its
custody. Therefore, in case of movable property the Code of Civil Procedure recommends actual
seizure of the property.
(d) Legal Framework Since there exists a vast difference between the value of movable and
immovable property, a variety of laws prescribe stringent provisions for obtaining the tile of immovable
property. However, the legal regime governing the transfer of movable properties has to be of
necessity less stringent and hence, movable property can be bought without any legal formalities,
unless some formality has been expressly provided by law. This is in contrast with immovable
properties, which may need transferring of documents and obtaining sale certificate etc.
(e) Claims By its very nature an immovable property may contain within its fold various rights and
charges, which is generally not the case with movable property. Thus, there may exist a number of
claims on immovable property, which are far in excess of the number of claims on movable property,
therefore, requiring elaborate procedures for the publicity of attachment and sale orders relating to
immovable properties.
(f) Revenue While the legal regime requires the maintenance of elaborate and permanent records
in case of immovable property for various revenues purposes; such elaborate and permanent records
are not required in case of movable properties.
7.0. Conclusion
It has been said that the difficulties of a litigant begin when he has obtained a
decree[61]
The execution process, which commences with the filing of an application for execution, aims at the
enforcement of a decree by a judicial process. Aware of the fact that a number of obstacles are placed
in the way of a decree-holder, who seeks to execute his decree against the property of the judgment-
debtor, the Code of Civil Procedure provides for elaborate rules and procedures for the execution of
decrees.

In an attempt to enable the decree-holder to realize the fruits of the decree passed by the competent
court in his favour, the Code of Civil Procedure allows for the attachment and sale of the properties of
judgment-debtor as one amongst the various modes of executing a decree.
However, the nature of the properties of judgment-debtor liable for attachment is usually varied. The
properties belonging to the judgment-debtor, which are sought to be attached and sold, may be
movable or immovable. Since, movable and immovable properties by nature have differing rights;
there are different legal regimes governing these two types of properties, and therefore the court has
to cater to these different rights and proceedings.

Thus, in an attempt to ensure that attachment and sale of the property of the judgment-debtor
remains a viable and effective mode of execution of decrees the Code of Civil Procedure has prescribed
different procedures for the attachment and sale of movable and immovable properties in execution of
money decrees. This is best illustrated in the prescription of actual seizure of the property in cases of
attachment of movable property, as in these cases a very real threat exist that the property might
escape the jurisdiction of court.
8.0. Bibliography
1. C.K. Thakker, Civil Procedure (14th Edition, Lucknow: Eastern Book Company, 2001).
2. D.V. Chitaley et. al., The Code of Civil Procedure (Volume III, 8th Ed., Nagpur: All India Reporters
Limited, 1971).
3. D.F. Mulla, The Code of Civil Procedure (P.M. Bakshi Ed., 12th Ed., Bombay: N.M. Tripathi Private
Limited, 1990).
4. S.C. Sarkar et al., The Law of Civil Procedure (7th Edition, Vol. I, Calcutta: S.C. Sarkar and Sons
Private Limited, 1986).
5. S.N. Singh, The Code of Civil Procedure Including Pleadings (14th Edition, Allahabad: Central
Law Agency, 1990).
6. Salmond on Jurisprudence (P.J. Fitzgerald Ed., 12th Ed., Bombay: N.M. Tripathi Private Limited,
2000).
7. Umesh D. Shukla, The Key to Indian Practice (7th Edition, Bombay: N.M Tripathi Private Limited,
1994).

[1] Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693.
[2] Under English Law these are referred to as Chattels and Land.
[3] However, the authenticity of this Doctrine is not wholly beyond dispute. In fact by Article 905 of the
German Civil Code, the owner of land owns the space above it, but has no right to prohibit acts so
remote from the surface that they in no way affect his interests.

[4] Salmond on Jurisprudence (P.J. Fitzgerald Ed., 12th Ed., Bombay: N.M. Tripathi Private Limited, 2000)
at 416-417.
[5] Ibid at 418.
[6] AIR 1986 All 182.

[7] AIR 1991 SC 2251.

[8] Section 51 of the Code of Civil Procedure reads as under:

Powers of Court to enforce execution Subject to such conditions and limitations as may be
prescribed, the Court may, on the application of the decree-holder, order execution of the decree
(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison for such period not exceeding the period specified by Section
58, where arrest and detention is permissible under that Section;

(d) by appointing a receiver; or

(e) in such other manner as the nature of relief may require.

[9] C.K. Thakker, Civil Procedure (14th Edition, Lucknow: Eastern Book Company, 2001) at 389.
[10] Id.
[11] Section 64 of the Code of Civil Procedure reads as under:

Private alienation of property after attachment to be void Where an attachment has been
made, any private transfer or delivery of the property attached or any interest therein and any
payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment,
shall be void as against all claims enforceable under the attachment.
[12] S.C. Sarkar et al., The Law of Civil Procedure (7th Edition, Vol. I, Calcutta: S.C. Sarkar and Sons
Private Limited, 1986) at 178.
[13] AIR 1965 A.P. 52.

[14] Section 60 of the Code of Civil Procedure reads as under:

Property liable to attachment and sale in execution of decree (1) The following property is
liable to attachment and sale in execution of a decree, namely, lands, houses, or other buildings,
goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government
securities, bonds or other securities for money, debts, shares in a corporation and save, as hereinafter
mentioned, all saleable property belonging to the judgment debtor, or over which, or the profits of
which, he has a disposing power which he may exercise for his own benefit, whether the same be held
in the name of the judgment-debtor or by another person in trust for him or in his behalf.
[15] (1984) 1 SCC 137.

[16] Saleable as used in this Section means saleable by auction under the orders of a Court.

[17] AIR 1975 Mad 19.

[18] Rule No. 43 of Order 21 of the Code of Civil Procedure reads as under:

Attachment of Movable Property, other than agricultural produce, in possession of the

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 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.

[19] D.V. Chitaley et. al., The Code of Civil Procedure (Volume III, 8th Ed., Nagpur: All India Reporters
Limited, 1971) at 874.
[20] AIR 1961 SC 803.

[21] Rule No. 44 of Order 21 of the Code of Civil Procedure reads as under:

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 the crop has grown, or

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

[22] AIR 1939 Rang 432.

[23] Supra note 19 at 883.

[24] Supra note 19 at 883.
[25] Rule No. 46 of Order 21 of the Code of Civil Procedure reads as under:

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 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) The debtor prohibited under clause (i) 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.

[26] Rule No. 47 of Order 21 of the Code of Civil Procedure reads as under:

Attachment of share in movables Where the property to be attached consists of share or

interest of the judgment-debtor in movable property belonging to him and others 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.
[27] S.N. Singh, The Code of Civil Procedure Including Pleadings (14th Edition, Allahabad: Central Law
Agency, 1990) at 266.
[28] Rule No. 51 of Order 21 of the Code of Civil Procedure reads as under:

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 the court and held subject to further orders of the
Court.
[29] Supra note 19 at 928.
[30] Rule No. 52 of Order 21 of the Code of Civil Procedure reads as under:

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
[31] D.F. Mulla, The Code of Civil Procedure (P.M. Bakshi Ed., 12th Ed., Bombay: N.M. Tripathi Private
Limited, 1990) at 728.
[32] Rule No. 54 of Order 21 of the Code of Civil Procedure reads as under:

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.
(1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice
of the date to be fixed for settling the terms of proclamation of the sale.

(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 and,
where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having
jurisdiction over that village.

[33] Supra note 19 at 955.

[34] Supra note 9 at 397.
[35] Rule No. 64 of Order 21 of the Code of Civil Procedure reads as under:

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 a sufficient portion thereof, shall be paid to the party entitled under the decree to receive
the same.
[36] (1994) 1 SCC 131.

[37] Rule No. 65 of Order 21 of the Code of Civil Procedure reads as under:

Sale 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 person as the Court may appoint in
this behalf, and shall be made by public auction in manner prescribed.
[38] Rule No. 66 of Order 21 of the Code of Civil Procedure reads as under:

Proclamation of sales by public auction (1) Where any property is ordered to be sold by public
auction in execution of decree, the Court shall cause a proclamation of the intended sale to be made in
the language of such Court.
(2) Such a proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor..

[39] Supra note 9 at 398.

[40] Supra note 19 at 1050.
[41] AIR 1965 A.P. 215.

[42] Rule No. 66 (2) of Order 21 of the Code of Civil Procedure reads as under:
Proclamation of sales by public auction (2) Such a 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 accurately as possible
(a) the property to be sold, or, where a part of the property would be sufficient to satisfy the decree,
such part;

(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 encumbrance 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:.

[43] Supra note 19 at 1073.

[44] Rule No. 68 of Order 21 of the Code of Civil Procedure reads as under:

Time of Sale Save in the case of property of the kind described in the proviso to rule 43, no sale
hereunder shall, without the consent in writing of the judgment-debtor, take place until after the
expiration of at least fifteen days in the case of immovable property, and of at least seven 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.
[45] Rule No. 43 of Order 21 of the Code of Civil Procedure reads as under:

Attachment of Movable Property, other than agricultural produce, in possession of the

judgment-debtor . 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.
[46] Supra note 9 at 400.
[47] AIR 1964 Bom 342.

[48] Rule No. 74 of Order 21 of the Code of Civil Procedure reads as under:

Sale of Agricultural Produce (1) Where the property to be sold is agricultural produce, the sale
shall be held
(a) if such a produce is a growing crop, on or near the land on which such crop has grown, or

(b) if such a produce has been cut and gathered, at or near the threshing floor or place of 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 the
opinion that the produce is thereby likely to sell to greater advantage.

[49] Rule No. 76 of Order 21 of the Code of Civil Procedure reads as under:

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..
[50] Supra note 19 at 1106.
[51] Rule No. 78 of Order 21 of the Code of Civil Procedure reads as under:
Irregularity not to vitiate sale, but any injured person may sue No irregularity in publishing
or conducting the sale of movable property shall vitiate the sale.
[52] Supra note 9 at 401.
[53] See Rule No. 78 of Order 21 of the Code of Civil Procedure.
[54] Rule No. 82 of Order 21 of the Code of Civil Procedure reads as under:

What Courts may order sale Sales of immovable property in execution of decrees may be
ordered by any Court other than a Court of Small Causes.
[55] See Rule No. 84 of Order 21 of the Code of Civil Procedure.
[56] See Rule No. 85 of Order 21 of the Code of Civil Procedure.
[57] See Rule Nos. 85, 86 and 87 of Order 21 of the Code of Civil Procedure.
[58] AIR 1954 SC 349.

[59] Supra note 9 at 403

[60] Supra note 9 at 409.
[61] Supreme Court of India in the case of Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC
693.

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Concept Of Execution
April 5, 2015 by admin Leave a Comment

Abhishek Kumar, CNLU

INTRODUCTION

Execution is the last stage of any civil litigation. There are three stages in litigation:

1. Institution of litigation.
2. Adjudication of litigation.

3. Implementation of litigation.

Implementation of litigation is also known as execution. A decree will come into

existence where the civil litigation has been instituted with the presentment of plaint.
Decree means operation or conclusiveness of judgement. Implementation of a decree
will be done only when parties has filed application in that regard. A decree or order will
be executed by court as facilitative and not as obligation. If a party is not approaching
court, then the court has no obligation to implement it suomotto. A decree will be
executed by the court which has passed the judgement. In exceptional circumstances,
the judgement will be implemented by other court which is having competency in that
regard.

Execution is the medium by which a decree- holder compels the judgement-debtor to

carry out the mandate of the decree or order as the case may be. It enables the decree-
holder to recover the fruits of the judgement. The execution is complete when the
judgement-creditor or decree-holder gets money or other thing awarded to him by
judgement, decree or order.[i]

CHAPTER 1: EXECUTION IN GENERAL

EXECUTION: MEANING

The term execution has not been defined in the code. The expression execution
means enforcement or implementation or giving an effect to the order or judgement
passed by the court of justice.[ii] Simply execution means the process for enforcing or
giving effect to the judgement of the court.[iii] Execution is the enforcement of decrees
and orders by the process of court, so as to enable the decree-holder to realise the
fruits of the decree. The execution is complete when the judgement-creditor or decree-
holder gets money or other thing awarded to him by the judgement, decree or order.

Illustration:

A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is the
decree-holder. B is the judgement-debtor, and the amount of Rs 10,000 is the
judgement- debt or the decretal amount. Since the decree is passed against B, he is
bound to pay Rs 10,000 to A. Suppose in spite of the decree, B refuses to pay the
decretal amount to A, and A can recover the said amount from B by executing the
decree through judicial process. The principle governing execution of decree and orders
are dealt with in Sections 36 to 74( substantive law) and order 21 of the
code( procedural law).

Supreme Court in Ghanshyam Das v. Anant Kumar Sinha[iv]dealing with provision of

the code relating to execution of decree and orders, stated, so far as the question of
executability of a decree is concerned, the Civil Procedure Code contains elaborate and
exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21
of the code take care of different situations providing effective remedies not only to
judgement-debtors and decree-holders but also to claimant objectors, as the case may
be. In an exceptional case, where provisions are rendered incapable of giving relief to
an aggrieved party in adequate measures and appropriate time, the answer is a regular
suit in the civil court.

CHAPTER 2: PRINCIPLES WITH REGARD TO EXECUTION OF DECREE AND

ORDER

Provision of Cpc relating to execution of decree and order shall be made applicable to
both Appeal and Sue.
A decree may be executed by the court which passed the judgement and decree or by
some other court which is having competency to implement the judgement passed by
such other court.
 The court which passed the decree may send it for execution to other court either on
application of the applicant (decree-holder) or by the court itself.

A court may order for execution of decree on the application of decree on the application
of decree holder (a) by delivery of any property which was in possession of judgement-
debtor and decree has been specifically passed concerning such property (b) by
attachment and sell of the property of the judgement-debtor (c) by arrest and detention
(civil imprisonment) (d) by appointing a receiver (e) in such other manner which depends
upon nature of relief granted by the court.

Upon the application of decree-holder, the court may issue percept to any other court
which is competent in that regard.

All questions arising between the parties to the suit in the decree shall be determined by
the court while executing the decree and not by separate suit.

Where a decree is passed against a party as the legal representative of a deceased

person and decree is for payment of money out of the property of deceased person, it
may be executed by attachment and sell of any such property.

A judgement-debtor may be arrested at any time and on any date shall required to be
brought before the court which has passed the decree and his detention may be in civil
prison of the district where decree shall have to be executed.

Where immovable property has been sold by the court in execution of a decree such sell
shall be absolute. The property shall be deemed to be invested in the favour of
purchaser, and the purchaser shall be deemed as a party to litigation.[v]

The court to which decree is sent for execution shall require certifying to the court which
has passed decree stating the manner in which decree has been implementing
concerning the fact of such execution.[vi]

CHAPTER 3.PROCEDURE IN EXECUTION:

Section 51 to 54 talks about procedure in execution or mode for execution.

Section 51: this section gives the power to court to enforce the decree in general. This
section defines the jurisdiction and power of the court to enforce execution. Application
for execution of decree under this section may be either oral (order 21 rule 10) or written
(order 21, rule 11). Party has to choose the mode of implementation of decree. Court
may execute decree as per the choice prayed by the decree-holder or as court may
thinks fit.
Mode of executing decree under section 51:

(a). By delivery of any property specifically decreed. Property may be movable or

immovable (b). By attachment and sale of the property or by sale without attachment of
the property. Under clause (B) of section 51 it is within the power of court to attach the
property if it is situated within its jurisdiction.

(c). Court can execute decree by mode of arrest and detention. no execution of decree
by arrest or detention of judgement-debtor unless reasonable opportunity is given in the
form of show cause notice as why he should not be imprisoned.

(d). It can be executed by appointing a receiver. Within the purview of this section it is
permissible to appoint decree-holder himself as the receiver of the judgement-debtors
land.

(e). Clause (e) is the residuary clause and comes into play only when the decree cannot
be executed in any of the modes prescribed under clause (a) to (d).[vii]

Section 52: Enforcement of decree against Legal representative:

Section 52 deals with a case where the decree is passed against the legal
representative of the judgement-debtor.

Section 52 (1) empowers a creditor to execute his decree against the property of
deceased in the hands of legal representative so long as it remains in his hand. For
application of this clause the decree should have passed against the party as the legal
representative of the deceased person, and it should be for the payment of money out of
the property of the deceased.

Section 52 (2) empowers a creditor to execute his decree against the legal
representative personally if he fails to accounts for the properties received by him from
deceased person.

Exception to section 52: 1. Court can implement the decree against the personal
property of the legal representative provided if he is avoiding, neglecting or evading to
make the payment from the property of deceased.

1. Where he has misutilized the property of deceased and where the legal representative
has alienated the property of the deceased person.[viii]
Section 53: Liability of ancestral property.

No legal representative should be held personally accountable where the suit has been
filed against a joint Hindu family unless he has received some property of joint Hindu
family.

Under pious obligation if has received the property of joint Hindu family then will be held
liable. Where the decree has been passed against Karta, no execution be made against
the son under pious obligation if the decree is passed after partition. Event after
partition a son can be held liable if suit was pending before partition.

The son will be held accountable if after the death of Karta the decree has been
executed and son has distributed the property of Karta among themselves. The member
of joint Hindu family will be held liable if Karta has taken debt for moral purpose or family
purpose.

The nature of suits determines how decree should be implemented.

Illustration: a promissory note has been executed by the father for the purpose of
borrowing money. After the death of father the creditor instituted proceeding against
son.

Where suit is filed basing on promissory note first it will be seen that whether suit is
maintainable or not- if it is filed within three year then the suit will be maintainable.
General rule is that son will be held liable if they have received ancestral property.

Where the son is not having knowledge about execution of promissory note, in such
case will not be held liable even though has received the ancestral property.[ix]

Section 54: Partition of estate or separation of share.

Section 54 comes into play when a decree has been passed for partition, or for the
separate possession of a share of an undivided state paying revenue to the government,
that is the partition of the state or share will be made by the collector. However if the
collector refuses to make the partition of the revenue paying property, the civil court can
do so.[x] To attract the provision of this section it is not necessary that the plaintiff
should ask for the division of government revenue.
Section 54 deals with a case where though the civil court has the power to pass a
decree yet it is not competent to execute the same. Under this section the execution of
decree shall be made by collector.

CHAPTER 4: PROCESS FOR EXECUTION

Order 21 rule 24 and 25 talks about process for execution.

Rule 24: process for execution

The court has inherent power to defer issue of process as envisaged under rule 24 and
can give time to judgement-debtor in appropriate cases.

Rule 24 prescribes the procedure in case of execution of decree. In these matters

the [xi]court exercises judicial discretion, which cannot be interfered with by the district
judge by issuing administrative order.

According to 24(3) execution must be completed by the date specified on the process
for the purpose- Warrants for delivery of possession, therefore, ceased to be executable
after expiry of the date appearing on the warrant.

After the process of execution is issued, rule 17 of order 21 cannot be invoked for
amendment of execution application. If the amendment seeks to change the nature of
execution, the power under section 151 and 153, also cannot be invoked.

Execution proceeding on the death of the decree-holder:-

Possession certificate under Section 214 of Indian Succession Act 1925, will not be
necessary for continuation of proceeding by his legal Heirs, even if legal Heirs are not
brought on record, the execution proceeding will not abate.

Delivery of possession to the decree-holder without notice to Judgement-debtor is not

proper:

Application by judgement-debtor for re-delivery of the possession on the ground that he

had no notice of the execution proceedings, dismissed by the trial court, however
allowed by the High Court in revision, held, re-delivery of possession to the judgement-
debtor was not proper, however, compensation of Rs, 2,000 was awarded to the
judgement-debtor.
Execution of decree

Notice under Order 21 Rule 21 is necessary only when the decree holder files an
execution of decree for the first time against the legal representative of the deceased.

RULE 25: Endorsement on process :

The officer who entrusted with the execution of the process, shall endorse upon the
same date and the manner in which it was executed and also endorsed upon in the
reason of delay and in case the process was not executed, will also state reasons
thereof. However a person cannot be re- arrested on the ground of absence of
endorsement.[xii]

CHAPTER 5: MODE OF EXECUTION.

The code lays down various mode of execution. After the decree-holder files an
application for execution of decree, the executing court can enforce execution.

A decree may be enforced by delivery of any property specified in the decree, by

attachment and sale or by sale without attachment of the property, or by arrest and
detention, or by appointing a receiver, or by effecting partition, or any such manner
which the nature of relief requires.

ARREST AND DETENTION

One of the modes of executing a decree is arrest and detention of the judgement-debtor
in civil imprisonment.

Where the decree is for payment of money, it can be executed by arrest and detention of
teh judgement-debtor.

A judgement-debtor may be arrested at any time on any day in execution of a decree.

After this arrest, he must be brought before the court as soon as practicable. For the
purpose of making arrest, no dwelling house may be entered after sunset or before
sunrise. Further, no outer door of a dwelling house may be broken open unless such
dwelling house is in the occupancy of the judgement-debtor and he refuses or prevent
access thereto.
No order of detention of the judgement-debtor shall be made where the decretal amount
does not exceed Rs.2000.

Where the judgement-debtor pays the decretal amount and costs of arrest to the officer,
he should be released once.

A women, judicial officers, the parties, their pleaders, member of legislative bodies, a
judgement-debtor where the decretal amount does not exceed Rs 2,000, these person
cannot be arrested and detained in civil imprisionment.

A decree for money cannot be executed by arrest and detention where the judgement-
debtor is a woman, or a minor, or a legal representative of a deceased judgement-
debtor.[xiii]

ATTACHEMENT OF PROPERTY

A decree may also be executed on the application of the decree-holder by attachment

and sale only sale without attachment of property. The code recognizes the right of the
decree-holder to attach the property of the judgement debtor in execution proceeding
and lays down the procedure to effect attachment. Sections 60 to 64 and rules 41 to 57
of Order 21 deals with the subject of attachment of property. The code enumerates
properties which are liable to be attached and sold in execution of a decree. It also
specifies properties which are not liable to be attached or sold. It also prescribes the
procedure where the same property is attached in execution of decrees by more than
one court. The code also declares that a private alienation of property after attachment
is void.

Section 60(1) declares what properties are liable to attachment and sale in execution of
a decree, and what properties are exempt therefrom. All saleable property( movable or
immovable) belonging to the judgement-debtor or over which or the portion of which he
has a disposing power which he may exercise for his own benefit may be attached and
sold in execution of a decree against him.

Section 61 deals where the judgement-debtor is agriculturalist. It state that judgement-

debtor is agriculturalist. Any agriculturalist produce is subject matter of agriculturalist.
The quantum of attachment of agricultural product depends upon the quantum of
decretal amount.
Section 63 where two different courts have attached the same property through different
decree, then it will be looked, that which court is superior. The value of the property will
determine whether further attachment can be done or not.[xiv]

PERCEPT

Section 46- precept means a command, an order, a writ or a warrant. A percept is an

order or direction given by court which passed the decree to a court which would be
competent to execute the decree to attach any property belonging to the judgement-
debtor.

Section 46 provides that court which passed a decree may, upon an application by the
decree-holder, issue a percept to that court within whose jurisdiction the property of the
judgement-debtor is lying to attach any property specified in the percept.

A percept seeks to prevent alienation of property of the judgement-debtor not located

within the jurisdiction of the court which passed the decree so that interest of the
decree-holder is safeguarded and protected.

It is interim attachment of the property which lies outside the jurisdiction of court which
has passed the order. To protect the interest of the decree holder on his application will
issue percept to the court in whose jurisdiction property is situated to attach the property
of the judgement-debtor. The interim order for attachment is valid for the period of only 2
months.

GARNISHEE ORDER

It is the proceeding by which the decree-holder seeks to reach money or property of the
judgement-debtor in the hands of a third party (debtor of judgement-debtor).

Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the

court may require A not to pay money owed by him to B, but instead to pay C, since B
owes the said amount to C, who has obtained the order.

Garnishee order is an order passed by a court ordering a garnishee not to pay money
to the judgement-debtor because the latter is indebted to the garnisher.
SALE OF THE PROPERTY

A decree may be executed by attachment and sale or sale without attachment of any
property. Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating
to sale of movable and immovable property.

Power of court: Rule 64-65

Rule 64: a court may sell the property, which he has taken into custody under an
attachment under order 60.

Rule 65: appointment of officer by the court who will be charged to sell the property.
Officer will be the representative of the court and will sell the property for execution of
decree.[xv]

Proclamation of sale: Rule 66-67

It is a kind of order or declaration. It operates as a public notice regarding the sale. Its
says that people can participate in auction and sale. Proclamation can be in writing or
by customary mode.

Contents of proclamation:-

1. Time and place of sale

2. Property to be sold

3. Revenue, if any, assessed upon the property;

4. Encumbrance, if any, to which property is liable;

5. Amount to be recovered;

6. Details relating to property, such as title deed, length etc.

Time of sale: Rule 68

No sale without the consent in writing of the judgement-debtor can take place before
fifteen days in case of immovable property and before 7 days in case of movable
property from the date of proclamation in the courthouse. A sell can be conducted
immediately if the property is of perishable nature.

Adjournment of sale: rule 69

If the judgement-debtor after the issue of proclamation and before sell has paid the
amount, or has partly promised to pay on the given date before completion of public
order, if there is any justified reason, in those circumstances, court has discretionary
power to postponed the sell. If it has been postponed for period of 30 days, fresh
proclamation has to be issued and again the process of rule 67, 68 and 69 will follow.

Sell cannot be postponed where judgement-debtor dies before the date of sell or after
the issue of proclamation, or on the date of auction.

Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the
property sold in execution of his own decree.

A mortgagee of immovable property cannot, without the leave of the court, purchase the
property sold in execution of decree on the mortgage.

Any officer or other person having any duty to perform in connection with the execution
sale cannot either directly or indirectly, acquire or any attempt to acquire any interest in
the property sold in execution.

Rule 78-78 talks about sale of movable property.[xvi] Rules 74 and 75 relates to the sale
of agricultural produce and growing crops. Rule 76 covers negotiable instruments and
shares. Sale of movable property should be held by public auction. A sale of movable
property will not be said aside on the ground of irregularity in publishing or conducting
the sale (rule 78).

Rule 82-94 talks about sale of immovable property.[xvii] Rule 83 enables the executing
court to postpone sale to enable the judgement-debtor to raise decretal dues by private
alienation.[xviii]

Rule 84-85 provide for payment of purchase money by auction-purchaser. Rule 86 talks
about cases of default by auction-purchaser in making requisite payment and resale of
property. Rule 89-91 and 93 deals with setting aside sale and effect thereof. Rules 92-
94 provide confirmation of sale and issuance of sale- certificate. Section 65 declares the
effect of sale.[xix]

CHAPTER6: CONCLUSION
From the above discussion it clearly appears that execution is the enforcement of
decrees and orders by the process of court, so as to enable the decree-holder to realise
the fruits of the decree. The execution is complete when the judgement-creditor or
decree-holder gets money or other thing awarded to him by the judgement, decree or
order.

Order 21 of the code contain elaborate and exhaustive provision for execution of
decrees and order, take care of different type of situation and provide effective remedies
not only to the decree-holder and judgement-debtors but also to the objectors and third
parties.

A decree can be executed by various modes which include delivery of possession,

arrest and detention of the judgement-debtor, attachment of the property, by sale, by
appointment of receiver, partition, cross-decrees and cross-claims, payment of money
etc.

On exceptional situation, where provisions are rendered ineffective or incapable of

giving relief to an aggrieved party, he can file suit in civil court.

[i]Takwani, C.K., Civil Procedure with Limitation Act,1963.7 th Edition.Eatern Book

Compny. Pg. 616..

[ii]Halsburys Laws of England (4thedn.)Vol. 17 at p.232; Concise Oxford English

Dictionary (2002) at p.497.

[iii]Overseas Aviation Engineering, In re, (1962) 3 All ER 12: 1963 Ch D 24 (per Lord
Dening)

[iv](1991) 4 SCC 379: AIR 1991 Sc 2251

[v]http://www.legalserviceindia.com/article/l419-.concept_of _execution_html as
accessed on 16th Oct, 2013.

[vi]Takwani, C.K., Civil Procedure with Limitation Act,1963.7 th Edition.Eatern Book

Compny.Pg. 643.

[vii]Takwani, C.K., Civil Procedure with Limitation Act,1963.7 th Edition.Eatern Book

Compny.Pg. 631.
[viii]ibid

[ix]Takwani, C.K., Civil Procedure with Limitation Act,1963.7 th Edition.Eatern Book

Compny.Pg. 645.

[x]Sewakram v. chunnilal, AIR 1951 Nag 359.

[xi]AIR 1962 Manipur 24.

[xii]http://civillawyersindia.wordpress.com/2013/05/12/section-44a-of-c-p-c-execution-of-
decrees-passed-by-courts-in-reciprocating-territory/ as accessed on 16th Oct, 2013.

[xiii]Takwani, C.K., Civil Procedure with Limitation Act,1963.7 th Edition.Eatern Book

Compny.Pg. 652.

[xiv]Takwani, C.K., Civil Procedure with Limitation Act,1963.7 th Edition.Eatern Book

Compny.Pg. 668.

[xv]Takwani, C.K., Civil Procedure with Limitation Act,1963.7 th Edition.Eatern Book

Compny.Pg. 693.

[xvi]http://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/index.php?
Title=Code%20of%20Civil%20Procedure,%201908

[xvii] ibid

[xviii] ibid

[xix] ibid