1

A paper on Execution of
Decrees.
(Prepared by Chandrashekhar .U District Judge, Presently
working as Senior Faculty Member, KJA, updated on
31.05.2022)
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PAPER ON EXECUTION OF DECREES

(Paper prepared by Chandrashekhar U. Senior Faculty Member, KJA

updated on 31-05-2022)

1. How many types of decrees are there?

There are money decrees, decrees for Specific

performance of the contract, decrees for mandatory injunction
and permanent injunction, decrees for restitution of conjugal
rights in case of Muslims, decrees in partition suits, decrees
for possession etc. Decree may be preliminary or final, partly
preliminary and partly final. To understand the scope of
execution of decrees, it is necessary to know the definition of
decree, order and judgment as contained in CPC.

Sec. 2(2) defines ‘decree’ as the formal expression of an

adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question
within Sec. 144, but shall not include-
a) any adjudication from which an appeal lies as an appeal
from an order, or
b) any order of dismissal for default.
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Explanation.- A decree is preliminary when further

proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely
disposes of the suit. It may be partly preliminary and partly
final;

Classes of decrees
i. Preliminary
ii. Final decree; and
iii. Partly preliminary and partly final decree

Refer the decision in the case of Shankar vs. Chandrakant,

reported in (1995) 3 SCC 413= AIR 1995 SC 1211
Preliminary decree is one which decides the rights of the
parties but does not completely dispose of the suit. Final
decree is one which completely and finally adjudicates the
right.

The code provides for passing of preliminary decree in the

following cases;

1. Suits for possession and mesne profits;

2. Administration suits;
3. Suits for pre-emption;
4. Dissolution of partnership;
5. Suits for accounts between principal and agent;
6. Suits for partition and separate possession;
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7. Suits for foreclosure of a mortgage;

8. Suits for sale of mortgaged property;
9. Suits for redemption of a mortgage.

Deemed decree.

The term “deemed” is generally used to create a statutory

fiction for the purpose of extending the meaning which it does
not expressly cover. Refer the decision in the case of Hira H
Advani vs. State of Maharastra, reported in (1969) 2 SCC
662.

Sec. 2(9) defines ‘judgment’ as the statement given by the

Judge on the grounds of a decree or order.

Sec. 2 (14) defines ‘order’ as the formal expression of any

decision of a Civil Court which is not a decree.

2. Which Court can execute the decree?

Decree can be executed by the Court which has passed

the decree or the Court to which a decree is transferred (See
Ss. 36 and 39 of CPC).

2A) How may preliminary and final decrees can be passed?

In a suit for partition, the Court may pass final decree at

the first instance relating to urban properties and as far as
Agricultural properties, preliminary decree may be passed.
Like wise, in a suit for partition, any number of preliminary or
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final decrees can be passed to avoid multiplicity of suits. (For

eg. Death of the party after passing final decree)

3. What is the duty of the Court when an Execution

Petition is filed?

The Court has to see whether the decree sought to be

executed is in time i.e., 12 years is the time to file an execution
petition from the date of decree. If installments are granted
with default clause, the time till default will have to be
excluded while computing 12 years. The Court has to register
it by giving number. Execution EP 1/08. If the Execution
Petition is within 2 years, steps like attachment of property
and salary can be ordered straight away. If the Execution
petition is filed more than 2 years from the date of decree, a
show cause notice as to why the execution of decree should
not be ordered (See Order 21 Rule 22 CPC). In respect of
decree for mandatory injunction, 3 years is the limitation (See
Article 135 of the Limitation Act. In respect of execution of
decree for permanent injunction, there is no limitation (See
proviso to Art. 136 of Limitation Act)

3A. Whether pensionary benefits converted into fixed

deposit by JDR can be attached?

No. Even if it is converted as fixed deposit. Refer the decision

reported in AIR 2009 SUPREME COURT 930 – Radhey
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Shyam Gupta vs. Punjab National Bank, wherein, it is held

that

“Having considered the submissions made on behalf of the

respective parties, we are inclined to accept Mr. Mehta's
submission that the order impugned in the revision petition
before the High Court did not attract the bar of the proviso to
sub-section (1) of Section 115 of the Code as it sought to
finally decide the manner in which the decree passed in Suit
No. 66 of 1992 by the learned Additional District and Sessions
Judge, Bayana, Rajasthan, was to be satisfied. However, we
are also of the view that having regard to proviso (g) to Section
60(1) of the Code, the High Court committed a jurisdictional
error in directing that a portion of the decretal amount be
satisfied from the fixed deposit receipts of the appellant
held by the Bank. The High Court also erred in placing the
onus on the appellant to produce the Matador in question for
being auctioned for recovery of the decretal dues. In other
words, the High Court erred in altering the decree of the Trial
Court in its revisional jurisdiction, particularly when the
pension and gratuity of the appellant, which had been
converted into Fixed Deposits, could not be attached under the
provisions of the Code of Civil Procedure. The decision in the
Jyoti Chit Fund case (supra) has been considerably watered
down by later decisions which have been indicated in
paragraphs 15 and 16 hereinbefore and it has been held that
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gratuity payable would not be liable to attachment for

satisfaction of a Court decree in view of proviso (g) to Section
60(1) of the Code.”

4. What is the effect of change of jurisdiction?

U/s.42 CPC the Court executing the decree upon

transfer, has the same powers as if it had been passed by
itself. Refer the decision reported in AIR 1956 SUPREME
COURT 359 Jai Narain Ram Lundia vs. Kedar Nath Khetan,
AIR 1987 SUPREME COURT 1739 Binod Mills Co. Ltd.,
Ujjain vs. Suresh Chandra Mahaveer Prasad Mantri,
Bombay and ILR 1991 Kar 4533.

Upon an application by the decree holder, the Court

which has passed the decree may issue a precept to any other
Court which would be competent execute such decree attach
any property belonging to the JDr u/s.46 of CPC. The Court
to which the precept is issued shall have to attach the
property forthwith. The attachment would continue for two
months unless the Court which passes the decree, extends the
period of attachment or the decree is transferred to the court
which attached the properties for purposes of execution.

In the decision in the case of Itel Industries (p) Ltd.,

Ind. solders and Alloys (p) Ltd., – 2008 SCC online Madras
975 it is held that the main object of Section 46 is to enable
attachment of property of judgment letter within jurisdiction of
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another Court so as to defer judgment letter from alienating or

otherwise dealing with property till further proceedings. It
does not affect the jurisdiction of the Court.

The Apex Court in the case of Mohit Bharghava vs.

Bharath Bhooshan Bharghava – (2007) 4 SCC 795 has held
that the Court which executes the decree can send the decree
to outside the jurisdiction of the Court by sending the order of
attachment in respect of property outside the jurisdiction of
the Court. But Section 136 clearly excludes execution of
decrees from within its purview.

In the event of the Jdr. Dying during the execution

proceedings and the decree is not satisfied, the legal
representatives can be brought on record for prosecution of
the execution subject only to the limitation of liability for
satisfaction of the decree only to the extent of the assets of the
deceased in the hands of the legal representatives. (See
Sections 50, 52 of CPC) Refer the decision reported in AIR
1952 SC 170 Pannalal vs. Naraini. Also refer the latest
decision in the case of Sundaram Finance Limited vs. Abdul
Samad And Anr reported in AIR 2018 SC 965.

Our High Court in the case of B.S.Ashok vs. Investment

Trust of India Limited reported in (2010) 2 KCCR 822, has
held that in case of execution of Decree against Legal heirs,
unless and until it is shown that the Judgment debtor is given
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an opportunity of showing cause why he should not be

committed to prison. In case if he is brought under arrest, the
DHR has to satisfy the Court about commit in the JDR to
prison by showing the means to pay this amount. (Officers to
read the decision without fail)

A well considered order has been passed by the executing

court that when a person disobeys the interim order during
the pendency of the suit, it is always open to either move the
court for contempt or to execute the interim order passed by
the court. Refer the decision in the case of Bhimshen Rao vs.
Amba Rao reported in ILR 1998 KAR 4236, 1998 (5) KAR
LJ 282.

5. Whether decree for permanent injunction can be

executed against the LRS of the Judgment
debtor/defendant? If so, to what extent?

Yes. It can be executed against the LRS of deceased

defendant. Refer the decision reported in (2002) 9 SCC 28 –
Government of Orissa vs. Ashok Transport Agency. It is
held in the above decision that though the decree for
injunction does not run with the land, such a decree can be
executed against the LRS of the deceased defendant. Any
violation of the decree for injunction by the legal
representatives can therefore be stopped by resorting to
proceedings under Sec. 50 CPC. Such liability would be
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limited to the attachment of property of the deceased in the

hands of the legal representatives. The other relief of detention
of the legal representatives under O 21 Rule 32 cannot be
resorted or enforced against the legal representatives at all.

5A. Whether decree for mandatory and perpetual

injunction can be executed against the judgment debtor
for continued obstruction? Whether subsequent
obstruction gives rise to take action under Sec. 22 of
Easements Act?

Yes, it can be executed. After removal of obstruction by the

Court, if there is any obstruction by the JDR, the same can be
removed. It is not necessary to file another suit based on
easement. Refer the decision reported in AIR 1997 SUPREME
COURT 3765 – Jai Dayal vs. Krishan Lal Garg.

5B. Whether Police protection be granted to enforce the

decree for Permanent injunction?

No. When there is decree, it has to be executed as per Or. 21

rule 32 CPC, by detention of JDR or attachment of property.
Police protection cannot be granted to protect the possession
of the DHR. Refer the decision reported in the case of
Chikkamuniyappa vs. Chikkappaiah reported in 2003 TLKr
97.
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6. Whether the LRS of Decree holder, in a decree for

possession are required to obtain succession certificate? If
not when succession certificate is necessary?

No. For taking possession Succession certificate is not

necessary. But, for recovery of money under money decree it is
necessary. Refer the decision reported in 2001 AIHC 259.

7. What is the procedure for the arrest of a public servant?

In case of arrest of public servant, 7 days notice shall be

given to the immediate official superior of the person to be
arrested (See Rule 110 of Civil Rules of Practice).

In case of decree against the Government or against a

Public Officer, execution can be taken out only if the decree
remains unsatisfied, for a period of 3 months from the date of
the decree or award (See Sec. 82(2) CPC)

In case of arrest and detention in Civil Prison, the Decree

Holder is liable to deposit the prescribed subsistence
allowance before the Judgment debtor is committed to Civil
Prison and has to continue to deposit the subsistence
allowance to cover the period of detention. In the event of the
subsistence allowance is exhausted, the Judgment Debtor gets
released automatically.(See Rule 111 and 112 of Civil Rules of
Practice) Refer the decision reported in (1986) 2 MLJ 300.
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In case of immovable property, the Amin has to follow the

procedure mentioned in Rule 115 of Civil Rules of Practice. He
has to make special enquiry as to (a) the nature of soil and the
cultivation, (b) whether the land is dry, wet or garden, (c) the
number of wells or other means of irrigation, (d) the number
and kind of trees, (e) the means of communication, (f) the
vicinity of markets, (g) the estimated annual produce, and if
leased, for how long on what terms and to whom, (h) in the
case of a house, the material of which it is built, the extent of
the compound and its rental if any, and (i) the estimated
value. Above information shall be attested by Village
Accountant and three respectable inhabitants.

In case of moveable property, list has to be furnished

before issue of attachment warrant. (See Rule 116 of Civil
Rules of Practice)

Under Rule 129 of Civil Rules of Practice the interest of

JDr in property has to be mentioned by way of Affidavit and
the Dhr has to furnish encumbrance certificate.

After filing of sale papers as per Order XXI Rule 68, the
office has to make note of interest of JDr, encumbrance if any
etc., over the property attached.
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Under Rule 138 of Civil Rules of Practice spot sale &

Court sale are mandatory – ILR 1986 Kar. 3536 –
Channabasappa vs. Nanjundappa..

8. Whether Executing Court can go beyond the decree?

No. Refer the decision reported in (1996) 5 SCC 728 –

Rameshwar Gupta vs. State of Uttar Pradesh, (2003) 7 SCC
522 – Rajasthan Financial Corporation vs. Man Industrial
Corporation Ltd.

9. What are the questions that can be determined by the

Court executing the decree?

Sec. 47 CPC deals with it. A question as to the title of the

property in attachment and sale between the parties to the
suit and their representatives are matters coming within Sec.
47. Refer the decision reported in AIR 1952 SUPREME
COURT 170 – Pannalal vs. Naraini.

If there is any dispute regarding the identity or the substance

of the subject matter of the decree, no other Court except
Executing Court can decide it. Refer the decision reported in
AIR 1956 SC 359 – Jai Narain Ram Lundia vs. Kedar Nath
Khetan.

The question whether an award requires registration and

stamping is within the ambit of Sect 47 of CPC and not
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covered by Sec 34 of Arbitration Act. Refer the decision

reported in (2001) 10 SCC 432 – Muncipal Board Kotdar vs.
District Judge Pauri Garhwal.

Whether a decree was completely satisfied and the Court

became functus officio is a matter relating to execution,
discharge or satisfaction of the decree and hence has to be
enquired into by the Executing Court. Even redelivery can also
be ordered. Refer the decision reported in AIR 1961 SC 272 –
B.V. Patankar vs. C.G. Sastry.

If the execution proceedings are held violations of Rule 138 of

the Karnataka Civil Rules of Practice, there is no sale at all
and Sec. 47 is attracted. The dismissal of an application
under Order 21, Rule 90 does not de-bar the judgment –debtor
from resorting to Sec.47 of CPC. Refer decision reported in ILR
1986 Kar 3536 – Channabasappa vs. Nanjundappa.

Under Sec. 47 all questions relating to execution, discharge, or

satisfaction of the decree should be determined by the
executing Court alone. The pre-sale illegalities committed in
the execution are amenable to the remedy under Sec. 47. Post
sale illegalities or irregularities causing substantial injury to
the judgment-debtor are covered O. 21 Rule 90 CPC. In such
case, the applicant must prove substantial injury. Refer the
decision reported in (1994) 1 SCC 131 – Desh Bandhu Gupta
vs. M.L. Anand & Rajinder Singh.
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The scope of Sec. 47 has been explained by the Apex Court in

AIR 1996 SC 1005 = (1996) 2 SCC 371 – Umashasnkar vs.
Sarabjeet.

In the decision in the case of Sneh Lata Goel vs.

Pushplata and Ors., reported in AIR 2019 SC 824, it is held
that “objection to validity of decree for want of territorial
jurisdiction, would not lie before Executing Court”.

The Apex Court has held that there is no conflict between

Sec.47 and O. 21 Rule 2 in Sultana Begum vs. Prem Chnd
Jain, 1997 (1) SCC 373. Even if there is any conflict, general
provision contained in Sec. 47 must yield to the special
provisions contained in O. 21 Rule 2 CPC.

Question whether decree was obtained by collusion having

arisen for consideration. Supreme Court in AIR 2006 SC
1706 – Mohammad Masthan vs. Society Congregation
Bros, S. Heart has held that such question did not and could
not have arisen before the executing Court.

10. Whether question of tenancy can be decided by the

executing Court?

No. Refer the decision reported in (2005) 8 SCC 41 – TCI

Finance Ltd vs. Culcutta Medical Centre Ltd.
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Order XXI Rule 1 provides for the mode of execution and

recovery of the decreetal amount (See Order XXI Rules 11A,
12, 13 and 17).

11. Whether a decree, which does not stipulate any

direction to be complied with by the judgment-debtor, can
be executed ?

No. Refer the decision reported in ILR 1999 Kar 3896= 1999
(4) KCCR 2735

Order XXI Rule 2 provides for recording of satisfaction of

the Decree, out of Court and the Judgment Debtor or his
surety, shall have to report such satisfaction within 30 days
from the date of payment to the Court, failing which the
settlement would not be recognized in law.

Notice to Show Cause against execution in certain cases

is contemplated under Rule 22 of Order 21 before further
proceedings are taken in execution of the Decree. (The
relevant rule is to be seen and followed). But for reasons to be
recorded, without issuing notice, execution is permissible if
the Court finds that to prevent the ends of justice being
defeated or to avoid unnecessary delay.

The requirement of O. 21 rule 2 is not confined to money

decree alone. The provision would apply to other decrees. An
application under O. 21 Rule 2 to record satisfaction is
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governed by Article 174 of the Limitation Act. Refer the

decision reported in AIR 1963 Mys 79.

Provisions of the Section are not applicable in case of a

compromise decree and an executing Court cannot go behind
a compromise decree to invoke the provisions of the Section.
Refer the decision reported in ILR 2000 Kar Sh.note page
173= 2000 (3) Kar LJ 195 – Sri. B.V.Basavaraj vs.
N.R.Chandran.

12. Whether the executing Court can recover the amount

excess to its pecuniary jurisdiction?

Yes, provided the Court of Original jurisdiction must have had

the pecuniary jurisdiction to pass the decree. Refer (1994) 1
SCC 131 – Desh Bandhu Gupta vs. M.L. Anand & Rajinder
Singh.

12A: What is the limitation to execute the decree for

possession of immovable property?

12 years from the date of judgment and decree and not from
the date of engrossing of decree on the stamp paper, as it
relates back to date of judgment and decree. Refer the decision
reported in AIR 2006 SC 2248 – Ram Bachan Rai vs. Ram
Udar Rai.
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13. Whether the executing Court can implead a third party

or amend the decree?

No. Refer the decision reported in (1996) 4 SCC 469 –

Ramesh Singh vs. State of Haryana.

14. Is it necessary to state the grounds for arrest by way

of affidavit?

Yes. O. 21 Rule 11A and refer the decision reported in AIR

2007 SC 1349 – Manager ICICI Bank Ltd vs. Prakash Kaur.

15. Whether decree can be assigned? If so, when and to

whom it can be assigned or transferred.
15a. Who cannot be arrested?

1. A woman (Sec. 56)

2. Judicial officers, while going to, presiding in, or
returning from their Courts; Sec.135(1)
3. The parties, their pleaders, mukthars, revenue agents
and recognized agents and their witnesses acting in
obedience to a summons, while going to or attending
or returning from Court; Sec.135(2)
4. Members of legislative bodies; (Sec. 135A)
5. Any person or class of persons, whose arrest,
according to the State govt., might be attended with
danger or inconvenience to the public; (Sec.55(2))
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6. A judgment debtor where the decretal amount does not

exceed Rs. 2000/-

Yes. Or. 21 Rule 16. Refer the decision reported in AIR 1955
SC 376 Jugalkishore Saraf vs. M/s. Raw Cotton Co. Ltd. In
the above decision, the doctrine of equitable assignment has
been discussed. However the decree for permanent injunction
cannot be assigned as it is personal. Refer ILR 1974 Kar
1506.

16. Whether succession certificate is necessary for the

LRS of the deceased DHR to recover the debt?

Yes. Refer the decision reported in ILR 1999 Kar 4411, AIR
2003 Kar 142 – Sangapp Mallappa Kuri vs. Special Land
Acquisition Officer. However, succession certificate is not
necessary to execute a decree for possession.

17. Whether simultaneous execution petitions can be filed

against the JDR by seeking attachment of immovable
property and arrest?

Yes. O. 21 Rule 30. Refer the decision reported in AIR 1969

SC 897 Padrauna Raj Krishna Sugar Works Ltd. vs. Land
Reforms Commissioner, U.P. (para 10), AIR 1992 SC 1740
State Bank of India vs. Messrs. Index port Registered (para
22), 2000 AIHC 2181 (kant). It is held in the above decision
of the Apex Court that the observation of Supreme Court in
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the earlier decision reported in AIR 1987 SC 1078 is contrary

to law. Also refer the case in the case of Pafco 2916 Inc.
vs. Kingfisher Airlines Limited, Bengaluru, reported in AIR
2017 KARNATAKA 10, wherein it is held that

“A decree holder would be entitled to file two petitions for

realizing or recovering the decretal amount due from two
judgement debtors, when judgment and decree passed against
them is joint and several. As such, the reasoning adopted by
the Executing Court either in holding that two petitions filed
by the decree holder against the principal debtor and the
guarantor is not maintainable or directing the decree holder to
amend the e petitions so as to conform the claim made in two
petitions would not exceed the decretal amount put together
cannot be sustained. (Paras 20 21)

The decree holder would be entitled under law to proceed

against different judgment debtors simultaneously and in the
instant case judgment debtors being separate and decrees
being separate, two petitions filed by decree holder will
necessarily have to be held as maintainable which is also
finding given by executing Court. However direction issued to
the decree holder to amend the petitions so that the amount
claimed in the petitions filed against principal borrower and
guarantor would result in claim being halved and same is
impermissible. In the background of undertaking given by
counsel appearing for decree holder on 07.04.2016 which is to
the effect that in the event of decree holders were to realise
any amounts from either of the judgment debtors amounts
claimed in respective petitions would be given set off or
deducted from the total claim deserve to be accepted for the
purpose of holding petitions would be maintainable. Judgment
debtors cannot be heard to contend that decree holder is
required to restrict their claim in all these petitions to the
extent of 50% only. However to alley the apprehension of
judgment debtors that decree holder may suppress the fact of
amounts realized, it would suffice if decree holder is directed
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to file an affidavit of undertaking thereunder that as and when

amounts are realised in any of the petitions i.e., filed against
borrower or guarantor they would file memo indicating the
amounts realized or received or recovered from the respective
judgment debtors. As such the impugned orders cannot be
sustained. (Paras 18)

However, rule 30 has no application for decree for specific

performance. Refer the decision reported in AIR 1994
SUPREME COURT 2256 – Amal Kumar Ghatak vs. United
Bank of India.

O. 21 Rule 32.

The Court executing a decree for specific performance is

competent to give possession. Refer the decision reported in
AIR 1972 SC 1826 Hungerford Investment Trust Ltd. (In
voluntary Liquidation) vs. Haridas Mundhra.

In executing a decree for injunction property of the officer or

official cannot be attached. Refer the decision reported in
(1992) 2 SCC 504-Yashpal Singh vs. VIII Addl. District
Judge & others.

Rule 32 of O. 21 authorizes correction of any error committed

while drafting the sale deed in a decree for specific
performance or when the measurements or boundaries are not
delineated in the map, the same can be rectified by resorting
to Sec. 47 of CPC. Refer the decision in (2003) 2 SCC 330 –
Prathibha Singh vs. Shanti Devi Prasad.
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The main object and purpose of Rule 32 is to see that the

judgment debtor obeys and performs his obligation under the
decree for injunction. If the conditions are fulfilled then only it
is permissible for the Executing Court to grant compensation.
Thus, an Executing Court cannot convert a decree for
injunction into a decree for compensatory costs. The Court
has to be satisfied about willful disobedience. Refer the
decision reported in ILR 1989 Kar 3371.

Rule 35 presupposes the existence of lawful decree. (2005) 7

SCC 791 – Harshad Chiman Lal Modi vs. DLF Universal
Ltd.

When decree holder put in possession of land it includes

possession of standing crops and in such an event Decree
holder is to be directed to give cost of the crop. Refer the
decision reported in (1982) 1 SCC 377 – Kamal Bai vs.
Bhikchand Kishan Lal.

Reaction of Apex Court to the delay in executing decree for

eviction by Rent Control and Eviction Court is apparent in the
decision reported in (2007) 3 SCC 113 – Jagdish Prasad vs.
Sampatraj. The Supreme Court further directed in the
following terms.

“Delivery of possession of the premises in question

shall be affected in favour of the land used after
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evicting the tenant therefrom any time after 31-12-

2006 but not later than 31-1-2007. If for evicting
delivery of possession, the executing Court requires
any armed force to be deputed, the same shall be
requisitioned from the Superintendent of Police
concerned who shall depute the same within 48
hours from the date of the requisition is received. It
is made clear that in case of any person other than
the judgment debtor is found in possession of the
subject matter, he shall also be evicted by the
armed force”.

17A. Whether Court can direct the plaintiff in a suit

for Specific Performance or any other suit to deposit
or undertaking to deposit huge amount on the ground
of heavy pendency and likelihood of delaying the
proceedings?

No. Court cannot direct for such deposit as held in the

case of Vinod Seth vs. Devinder Bajaj reported in 2010
TLPRE 380.

18. Is it necessary to know about the ability of JDR

to pay the decree amount before sending him to Civil
Prison?
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Yes. If it is shown that he has no means to pay the

decreetal amount, then he cannot be committed to Civil
Prison. Enquiry can be done before issuing arrest
warrant or when he is brought before the Court under
Arrest warrant. Refer the decision reported in AIR 2007
SC 1349 – ICICI Bank vs. Prakash Kaur.

19. What is the liability of garnishee?

Whenever there is a notice of decree and pendency of

execution petition, the garnishee cannot deal with the
money. If Garnishee meddles with money, then he is
liable to pay the amount as if the decree is passed
against him. Refer the decision reported in 1988 (1) KLJ
379.

‘Garnishee’ means a judgment debtor’s debtor. He is a

person, who is liable to pay a debt to a judgment-debtor or to
deliver any movable property to him.

If garnishee fails to make payment into the Court, nor appears

and shows any cause in answer to the notice, the Court may
order Garnishee to comply with such notice as if such order
were a decree against him.

In respect of execution of Decrees of various kinds, the

Presiding Officer will have to refer to the specific provisions
under Order XXI CPC and act accordingly.
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Where immovable property is attached under Order XXI

Rule 54, the Court has to ensure service of the prohibitory
order against alienation of the property attached, on the
Judgment Debtor.

Rule 54 is for safeguarding the right of the decree holder as

well as the JDR. By the notice the JDR is put on notice that
his property is attached and would be sold unless he pays off
his debt to the decree holder. Refer the decision reported in
(1993) 4 SCC 414 – Satyanarayana Bajora vs. Ramnarain
Tibrewal.

Order 21 Rule 58:

Where a claim is made by a third party that the property

attached belongs to him and not liable for attachment, an
enquiry as contemplated under Order XXI Rule 58 has to be
made. The decision taken is liable for challenge in a suit.

The Apex Court in the case of Kancherla Lakshminarayana

vs. Mattaparthi Syamala and others reported in (2008) 14
SCC 258 has held that in case of attachment of immovable
property, a duty is cast executing Court to find out as to
whether it is a collusive decree or not. It is essential
consideration for adjudication.
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In the case of S.K. Gangadhara vs. Ramachandra – (2015) 3

KCCR 2449 it is held that where the transferee comes before
the executing Court has objector under Order 21 Rule 58 CPC,
it is enough if the decree holder invokes Section 53 of TP Act
the way of defence and satisfies the ingredients to succeed in
securing dismissal of the application though it is a summary
proceedings.

If there is deliberate or unnecessary delay, then, claim cannot

be entertained. Refer the decision reported in (2001) 7 SCC 94
– Barnes Investments Ltd vs. Raj K. Gupta.

An Order dismissing an application for raising attachment is a

decree. It is appealable and not revisable (AIR 2002 Kar 324)

When a false claim is made under Order 21 Rule 58 based on

fraudulent document then claim is not sustainable refer
Takur Dongar Singh vs. Ladli Prasad Bhargava (Dr), (1973)
2 SCC 263.

20. Whether objection to attachment be filed even after

auction Sale?

Yes, refer the decision reported in 2008 AIR SCW 2800

Kancherla Lakshminarayana vs. Mattaparthi Shyamala,
wherein, it is held that
“Mere holding of auction sale does not bar the raising of
objection to attachment of property. The word "sold" in Clause
 28

(a) of the proviso to Rule 58 has to be read meaning thereby a

complete sale including the confirmation of the auction. In
considering the "time factor" of challenging the sale, the "locus
standi factor" on account of any prior interest of the objector
in the suit property has also to be considered. The attachment
cannot be free from the prior obligations. The necessary
sequatur is that even after the factum of sale the objection
would still lie before the sale is made absolute. AIR 1983 Pat
303, Overuled. AIR 1962 Pat 403, AIR 1937 Cal 390, AIR 1924
Pat 76, Held not good law.”

O. 21 Rule 64

In case of sale of property, a portion which is sufficient to meet

the claim has to be sold and not the entire property. Refer the
decision reported in AIR 1990 SUPREME COURT 119
Ambati Narasayya vs. M. Subba Rao, (1997) 4 SCC 356 and
ILR 2001 Kar 2499 – Geetabai & others vs. State Bank of
India and others.

Sale of property on the basis of preliminary decree cannot be

brought for sale in an execution case. Only final decree can be
executed. Refer the decision reported in (2007) 2 SCC 355 –
Hashan Abbas Sayyad vs. Usman Abbas Sayyad.

Under Order XXI Rule 66 all particulars regarding sale of

immoveable properties are to be furnished. It speaks about
drawing of proclamation in the language of Court (Kannada),
 29

place time and date of sale, extent of property to be sold, the

revenue assessed on the property amount to be recovered,
encumbrance if any, and any other thing which Court
considers material. If attachment already is affected before
the proclamation, then it is not necessary to give notice. The
court has to estimate the value of property and fix the upset
price in the proclamation.

The DHr has to file a verified statement to the said

effect (Order XXI Rule 66).

21. Whether Court is required to put its valuation of the

property brought for sale in the proclamation?

After amendment to CPC in the year 1976, now the Court is

not required to put its valuation. However, the Court is
required to put the value on the basis estimate given by both
the parties.

Sale proclamation has to be done after giving notice to the

DHR and JDR. The Proclamation should be in the language of
the Court.

It is necessary to issue sale notice to the JDR about the

proposed sale by way of proclamation and subsequent sale at
spot and Court. Judgment debtor should be given an
opportunity to give his estimate of property brought for sale.
Refer the decision reported in (1994) 1 SCC 131 – Desh
 30

Bandhu Gupta vs. N.L. Anand, (2005) 10 SCC 235 – S.

Mariyappa vs. Siddappa.

Failure to comply with the requirement of Rule 67 is material

irregularity rendering the sale voidable, furnishing a cause of
action for filing an application under O. 21 Rule 90 CPC Refer
AIR 1964 SC 1300 – Dhirendra Nath Gorai vs. Sudhir
Chandra Ghosh.

The Court has to fix the time for spot sale and Court sale
by giving two different dates. After bid at the spot and Court,
the successful bidder has to deposit 25% of the purchase
money on the same day and to pay the remaining amount
within 30 days as per Rules 84 & 85 of Order XXI.

After auction and accepting the highest bid, it has to be

called after 60 days for confirmation of sale. After 60 days, the
sale has to be confirmed and auction purchaser is entitled to
sale certificate on production of required stamp papers (non-
judicial). (refer Order XXI Rule 94 CPC)

Order XXI Rule 90 deals with application for setting aside

sale on the ground of irregularity or fraud.

1. Where any immoveable property has been sold in

execution of a decree the decree holder or the purchaser or
any other person entitled to share in a rateable distribution of
assets or whose interests are affected by the sale, may apply to
 31

the Court who set aside the sale on the ground of material
irregularity or fraud in publishing or conducting it.

2. No sale shall be set aside on the ground of fraud in

publishing or conducting it unless, upon the facts proved the
Court is satisfied that the applicant has sustained substantial
injury. (O.21 90(2) of CPC,)

3. No application to set aside a sale under this rule shall be

entertained upon any ground which the applicant could have
taken on or before the date on which the proclamation of sale
was drawn up. (O.21 rule 90(3) of CPC)

Explanation: The mere absence of, or defect in the attachment

of the property sold shall not by itself, be a ground for setting
aside a ground under this rule.

In case of attachment of salary of a Government Servant

servant of a railway company or local authority or of a servant
or a corporation engaged in any trade or industry, which is
established by a Central, Provincial or State or a Government
Company as defined in Sec. 617 of the Companies Act 1956
the attachment shall be effected in accordance with Rule 48 of
Order XXI of the Code.

Under O. 21 Rule 72, the DHR can be permitted to participate

in auction.
 32

22. Salary means what?

In the decision reported in AIR 1952 SC 227 – Union of India

vs. Hira Devi, it is stated that salary includes arrears but
excludes PF deductions.

1964 (1) Mys.L.J. 166 – The question whether the sale would
become void under prevention of Fragmentation Act and
Consolidation of Holdings Act does not arise under Order XXI
Rule 90.

AIR 1967 SC 608 – "Janak Raj vs. Gurdial Singh"– Where

after sale but before confirmation, decree itself is set aside, the
purchaser is nevertheless entitled to confirmation of sale.

Where no application is made under Rule 89, 90, 91 or if

made and disallowed, then, the Court has to confirm the
same. (refer Order XXI Rule 92 CPC)

If the claim is preferred, then Court has to wait till

disposal of such claim or objection. Under sub-rule 2, if
application is made under Rule 89 and allowed and if JDr
makes payment within 60 days from the date of sale then
Court has to set aside the sale.

If deposit is made within 60 days in all such cases

whether the period of 30 days within which deposit has to be
 33

made, has not expired before the commencement of Code of

Civil Procedure (Amendment) Act, 2002.

In the decision reported in 1982 (1) KLJ 356 in the case of

K.P. Krishnappa vs. B. Gangappa (dead) by LRS. & others,
it is held that if bid is not offered before the presiding officer,
then bid is not valid.

If the judgment debtor does not insist for sale on spot, the
Court should proceed to sell the property on the spot. Refer
decision reported in ILR 1986 Kar 912 – Manjamma vs.
Suryanarayana Rao. The purpose of Spot sale is to protect
the interest of the judgment debtor.

AIR 1987 SC 1443 "Ganpat Singh vs. Kailash Shankar"

speaks about Application of Art 134 of Limitation Act

AIR 1990 SC 1828 "Chinnamal vs. P. Arumugham" speaks

about restitution.

Once sale becomes absolute, then sale certificate has to

be issued. Refer B. Aravind Kumar vs. Government of India
(2007) 5 SCC 745.

If there is mistake in number of plot in final decree for

sale and sale certificate, it will not affect in identity of property
sold when Khatha No. and boundary are given. Refer
Sheodhyan Singh vs. Sanichara Kuer, (1962) 2 SCR 753.
 34

The act of granting sale certificate is ministerial and not

judicial – AIR 1991 SC 1825 Sagar Mahila Vidyalaya, Sagar
vs. Pandit Sadashiv Rao Harshe.

Under Rule 93, where sale is set aside under Rule 92, the
purchaser shall be entitled to an order of repayment of his
purchase money with or without interest as the Court may
direct against any person to whom it has been paid.

An objector can file objection to sale before its confirmation.

Once the sale is made absolute, such objection cannot be
entertained. In this regard, the decision reported in AIR 2008

AIR 1990 SUPREME COURT 2221 Hindi Pracharak

Prakashan vs. M/s. G.K. Brothers – Compensation is granted
with interest at 12% per annum payable by the JDr to
purchaser.

Sale certificate need not be registered. Refer 2007 AIR

SCW 4080B=2007-KCCR-2-1783=2007-AIRKarr-4-611-
B.Arvind Kumar vs. Government of India.

Auction purchaser is entitled to protection in case of

setting aside sale, but not the DHr if he himself purchases –
AIR 1982 SC 989 Sardar Govindrao Mahadik vs. Devi
Sahai.
 35

Rule 95 deals with delivery of property in occupancy of

JDr and Rule 96 deals with delivery of property in occupancy
of tenant.

In deciding an application under Rule 95 the executing

Court cannot stay delivery of possession of immoveable
property on the ground of JDr were to succeed in appeal –
1988 (3) KLJ 317.

An auction purchaser who is not a decree holder can file

an application under Order XXI Rule 95 or file a separate suit
for possession or resort both, the suit for possession is not
barred by dismissal of the application under Order XXI Rule
95.

ILR 1995 Kar. 2214, 1993 (3) SCC 644, is held that tenant
acquiring title from lessor or any one claiming under him need
not surrender possession.

Under Order XXI Rule 97 the decree holder or purchaser

can file an application for removal of obstruction of any
property sold in execution of decree by taking possession.

If an application is made under sub-rule 1 of Rule 97 of

Order XXI the Court has to adjudicate upon the application in
accordance with the provisions contained therein.

(2004) 2 SCC 511 – Nature and scope of Rule 97 is explained.

 36

Though Order XXI Rule 97 empowers the DHr or the

purchaser to file application for removal of obstruction, in view
of Sec.47 CPC even a third party can also file application
under the above provision. In this regard the decision of Apex
Court in the case of Brahmadeo Choudhary vs. Rishikesh
Prasad Jaswal & another reported in AIR 1997 SC 856 and
AIR 1998 SC 754 in the case of Silver line Forum Pvt. Ltd.,
vs. Raju Trust & another are relevant.

Third person other than Judgment Debtor complained of

its dispossession from suit property by decree holder are
purchaser in execution of decree held can no longer be put
back into possession merely on establishing there that it that
is such Third party was in possession prior to being
dispossessed from the suit property. All questions including
right, title or interest in the property between the parties to the
proceeding arising on the application under Rule 99 by such
third person, are required to be adjudicated by executing
Court itself dealing with application. Only thereafter question
of possession of suit property can be decided no separate suit
is required. Order of adjudicating Court shall be treated as
decree. Refer Shamsher Singh and another vs. Lieutenant
Colonel Nahar Singh (dead) through and others, (2019) 17
SCC 279.
 37

Where obstruction to execution of decree being caused,

held it is for decree holder to take appropriate steps under
Order 21 Rule 97 for removal of obstruction and to have the
rights of the parties including the obstructionist adjudicated
under Order 21 Rule 101 of CPC. Refer Anwarbi vs. Pramod
D.A. Joshi, (2000) 10 SCC 405.

In the case of Asgar Mohan Varma – (2020) 16 SCC 230

it is held that a stranger to a decree is entitle to agitate
his/her grievance and claim for adjudication for an
independent right, title and interest in the decretal property,
even after being dispossessed in accordance with Order 21
Rule 99.

The frivolous objection to execution petition has to be

dealt with scrupulously. Refer the edition in the case of Bool
Chand vs. Rabia reported in (2016) 14 SCC 270.

Order XXI Rule 98 deals with orders after adjudication of

questions referred to in Rule 101. Rule 101 deals with
question which are determined in a proceeding on an
application under Rule 97 or 99. No separate suit is
maintainable. If any obstruction petition is made then the
Court has to formulate points after enquiry and dispose of
such claim or obstruction. Refer the decision in the case of
Har Vilas vs. Mahendranath, reported in (2011) 15 SCC
377.
 38

In case of independent title canvassed by the third party,

then such claim has to be treated as a suit by framing issues.

Order XXI Rule 98, 100 don’t apply in case of transfer

pendente – lite.

If obstructer claims under the JDr on the ground of legal

heirship, he cannot maintain petition under Order XXI Rule
97.

Order passed under Rule 98 or 100 to be treated as

decrees.

In the decision reported in AIR 2008 SC 225 Niyamat Ali

Molla vs. Sonargon Hsg Co-op. Society Ltd., it is held that
“so far as the application for impleadment of the applicants are
concerned, they being not parties to the suit are not bound by
the decree. They would, thus, be entitled to take recourse to
such remedies which are available to them in law including
filing of an application under Order 21 Rules 97 and 99 of the
Code of Civil Procedure, if any occasion arises therefor. As and
when the said applicants take recourse to law, the same has to
be determined in accordance with law”.

In the decision reported in AIR 2008 SC 1272 Barkat Ali vs.

Badri Narain, it is held that “Order XXI, Rule 22, C.P.C.
culminates in end of one stage before attachment of the property
 39

can take place in furtherance of execution of decree. The

proceedings under Order XXI, Rule 23 can only be taken if the
executing Court either finds that after issuing notice, under
Order XXI Rule 21 the judgment debtor has not raised any
objection or if such objection has been raised, the same has
been decided by the executing Court. Sub-rule (1) as well as
sub-rule (2) under Order XXI, Rule 22, operates simultaneously
on the same field. Sub-rule (1) operates when no objection is
filed. Then the Court proceeds and clears the way for going to
the next stage of the proceedings, namely, attachment of the
property and if the Court finds objections on record then it
decides the objections in the first instance and thereafter clears
the way for taking up the matter for attachment of the property
if the objections have been overruled. Whether the order is made
under sub-rule (1) or sub-rule (2), it has the effect of determining
the preliminary stage before the attachment process is set in
motion. In this background, the order of the Court to proceed
with attachment on finding that no objection has been raised
also operates as an order deciding the preliminary stage of the
execution proceedings and operates as if the judgment debtor
has no objection to file. If thereafter, the judgment debtor wants
to raise an objection in the same proceedings in the absence of
any modification of order passed under Order XXI, Rule 22,
sub-rule (1) or (2), he has to take recourse to get rid of the order
by way of appeal. There is no dispute and it has not been
agitated that the order for proceeding by the judgment under
 40

Order XXI, Rule 22 amounts to a decree under Section 47 of

C.P.C. and it is appealable as a decree i.e. to say it is not an
appeal against the interim order but an appeal against the
decree which is provided against the final order. It means that
at the different stages of the execution, orders passed by the
executing Court have attained finality unless they are set aside
by way of appeal before the higher forum. Otherwise they bind
the parties at the subsequent stage of the execution proceedings
so that the smooth progress of execution is not jeopardised and
the stage which reached the finality by dint of various orders of
the Order XXI, operates as res judicata for the subsequent stage
of the proceedings, where a judgment debtor has an opportunity
to raise an objection which he could have raised but failed to
take and allowed the preliminary stage to come to an end for
taking up the matter to the next stage for attachment of property
and sale of the property under Order XXI Rule 23 which fell
within the above principle, the judgment debtor thereafter
cannot raise such objections subsequently and revert back to
earlier stage of proceedings unless the order resulting in
termination of preliminary stage which amounts to a decree is
appealed against and order is set aside or modified. The
principles of res judiciata not only apply in respect of separate
proceedings but the general principles also apply at the
subsequent- stage of the same proceedings also”
 41

In the decision reported in AIR 2008 SC 1997 Usha Sinha vs.

Dina Ram, it is held that the purchaser pendete-lite, cannot
raise objection to execution and execution cannot be stayed.

In the decision reported in AIR 2008 SC 2061 – Mahakal

Automobiles, M/s. vs. Kishan Swaroop Sharma, it is held
that notice should be given to the Judgment debtor at every
stage of the execution petition.

The Officers are requested to read the decisions reported in

ILR 1991 Kar 254 – M/S. Paramound Industries vs. CM
Malliga and ILR 2007 Kar 4396 – Gajanana vs. Jayamma
and another for better understanding.

SOME MODEL ORDERS

In case of arrest of JDR:

Sri. AB Advocate files EP for execution of decree in

O.S.12/2007 passed by this Court. Decree is in time.
Necessary court-fees paid. Hence for orders.

Sd/-

CMO
 42

Date
DHR by Issue cause notice to
the
JDR returnable by ………

Date
DHR by
For appearance Sri. K.K.Files Vak for JDR
And prays time for
objection
Objection by…….

Date Sri. K.K. files objection stating

DHR by that the JDR has no means to
pay the decreetal amount. To
JDR by
prove means by
Date DHR is present. Files an
DHR by application for receiving
JDR by documents. Sri.K.K. Orally
opposes the application.
Heard. Application is allowed.
Enquiry by….
Date DHR files his affidavit
DHR by evidence in lieu of
JDR by examination-in-chief. Ft chief
is over. Ex.P1 and 2 are
marked. DHR side is closed.
Evidence of JDR’s evidence
by…
Date JDR and his counsel is
DHR by absent. No representation.
JDR by Hence evidence on behalf of
JDr is taken as nil. To hear by
….
Date Heard DHR and JDR orders
DHR by by…
JDR by
Date Orders pronounced vide
 43

DHR by separate order. It is held that

JDR by the JDR has got means to pay
the decreetal amount. For
payment by..
Date JDR is absent. Payment is not
DHR by made. Issue A.W to JDR if P.F
JDR by and subsistence allowances
are paid by…..
Date Jdr is brought under arrest
DHR by warrant. Subsistence
JDR by allowance is paid. JDR is not
prepared to pay the decreetal
amount. Hence, he is
committed to Civil Prison for
30 days. Call by.

In case of arrest of public servant a seven days notice should

be given to the official superior to facilitate the arrest of the
JDR.

In case of attachment of salary of JDR

Date Advocate for DHR prays for

DHR by issue of attachment of salary
of the JDR. For furnishing
salara particulars by…
Date Adv for DHR files application
DHR by under Sec.151 CPC for calling
JDR by. for salary particulars of JDR.
Heard allowed. Call for salary
particulars of JDR from his
pay drawing officer by…
Date Salary certificate is received.
DHR by Perused. Issue attachment
JDR by. warrant of salary of JDR to
the tune of Rs. By…
 44

Date Salary At/Wt executed. Await

DHR by amount by…
JDR by.
Date Amount not received. Issue
DHR by reminder and await amount
JDR by. by…
Date Amount not received. No reply
DHR by submitted. Steps by…
JDR by.
Date Advocate for DHR files
DHR by application under 151 CPC to
JDR by. take coercive steps against the
pay drawing officer of the
JDR. Heard, allowed. Issue
show cause notice to the PDO
why action should not be
taken against him for
disobedience of attachment
order and that why the
amount should not be
recovered from him by…

Note: After recovering the amount, the amount shall be paid to

the DHR upon an application submitted by him.

Attachment of immovable property.

Date Issue attachment of schedule

DHR by property (if property is not
JDR by. already attached) by….
Date Attachment duly executed.
DHR by JDR has not filed any
JDR by. objection. DHR to file Sale
particulars as per O21 Rule
66 by….
Date Sale papers with verified
DHR by affidavit filed. Office to check
 45

JDR by. and put by…

Date Sale particulars filed by the
DHR by JDR is in accordance with the
JDR by. Rule 66. There is no other
charge as could be seen from
EC. Hence issue sale notice to
JDR by…
Date JDR is present. Objection not
DHR by filed(if filed verify whether it is
JDR by. tenable). Hence issue
proclamation and sale warrant
for spot sale and Court sale
by…. And….
Date Case called in the open Court.
DHR by Bidders are present. Auction
JDR by. held in the open Court. XY
offered highest bid. Bid
offered by XY is accepted. He
is directed to pay 25 % of sale
amount to the Court today
itself and balance within 15
days from today. Call
on…(Note: post the case after
60 days, as the sale has to be
confirmed after sixty days and
JDR has got opportunity to
file application for setting
aside within the period of 60
days)
Date Case called. No application
DHR by filed for setting aside sale.
JDR by. Hence sale held in favour of
XY is made absolute. XY to
furnish necessary NJ stamps
for preparing Sale Certificate.
Sufficient NJ stamp papers Issue Sale Certificate.
furnished.
 46

Officers are requested to read relevant provisions of CPC

and Civil Rules of Practice. As far as orders relating to
means of JDR, there shall be a small speaking order.