MODES OF

EXECUTION
Sec 51
QUESTIONS
 Explain the various modes of execution
of decree. (3)
 What are the different modes of
execution of a decree?
 What are the different modes of
executing a decree in a money suit?
Modes of execution - Section 51

 The decree holder chooses the mode in

which he wants to execute his decree.

 It is permissible in law to opt for even a

simultaneous execution but the court
may in its discretion to refuse execution
at the same time against the person
and the property of the judgment
debtor (Order 21 rule 21) - Anandilal vs
Ramsarup
Modes
 1. By delivery of any property is specifically
decreed. Property may be movable or
immovable.
 2. By attachment and sale of the property
or by sale without attachment of the
property.
 3. By arrest and detention
 4. By appointing a receiver.
 5. In such other manner as the nature of the
relief granted may require - residuary clause.
A. Delivery of property [Section 51(a) and
O 21 R31]

 Movable Property
 When the decree is for a specific movable property
it may be executed by –

 a. Seizure and delivery of the property or

 b. Detention of the judgment debtor or
 c. By attachment and sale of his property or
 d. By attachment and arrest both

 Movable property is to be in possession of the

judgment debtor and not third party.
 When the decree directs delivery of specific movable property the
court would have indicated the amount to be recovered in
the alternative if delivery of specific movable property cannot
be effected.

 If delivery of such property cannot be affected

 by seizure or
 by detention of judgment debtor in civil prison or
 attachment of the property,
 the court may award the decree holder the amount indicated in
the decree.

 If no such amount is indicated in the decree the executing court

would fix the compensation as it thinks fit and award it to the
decree holder.
 ‘Specific movable property’ does not include
‘money’. Decree of money is not executable under rule 31.
 Money decree is governed by Order 21 rule 30.

 Rule 30 Order XXI of Code of Civil Procedure 1908

"Decree for payment of money"
 Every decree for the payment of money, including a decree
for the payment of money as the alternative to some other
relief, may be executed by
 the detention in the civil prison of the judgment-
debtor, or
 by the attachment and sale of his property, or
 by both.
 Immovable property - Rule 35 and 36
 Decree for immovable property in possession of the
judgment debtor or person bound by the decree - it is
executed by removing the judgment debtor or any person bound
by the decree and by delivering possession thereof to the decree
holder.

 If property is in possession of the tenant or person entitled

to occupy and not bound by the decree, the delivery of the
property should be made by affixing a copy of the warrant at some
conspicuous place on the property and proclaiming to the occupant
by beat of drums or other customary mode at some convenient
place, the substance of the decree regarding the property.

 If person in possession does not afford free access, the

officers of the court may after giving reasonable warning and
facility to a pardanashin woman to withdraw, break open into the
building and put the decree holder in the possession thereof.
B. Attachment and sale of property -
Section 51(b) / O 21 R 54
 The court is empowered to order execution of a
decree
 1. By attachment and sale, or
 2. By sale without attachment, of any property.

 The words ‘attachment and sale’ are to be read

disjunctively and attachment of property is not a
condition precedent. Sale of property without
attachment is not void. Sale is not vitiated. It is a mere
irregularity.

 Executing Court is competent to attach the property if

it is situated within the local limits of the jurisdiction of
the court.
Rule 54 - Order of
attachment
 Before attachment the court has to be satisfied
about the judgment debtor's interest in the
property and exempted properties.

 In case of immovable property - The

immovable property is attached by :-
 making an order prohibiting the judgment
debtor from transferring the property,
 affixing a copy of the order on a conspicuous
part of the property and
 proclaiming it by beating drums and
 informing the collector.
Primary object of attachment

 a. It gives notice to the judgment debtor

not to alienate the property to anyone
and not create an encumbrance.
 b. Notice to general public not to
purchase.
 c. It protects the judgment debtor by
granting certain exemption to certain
properties from attachment and sale.
 All objections to attachment including questions of right, title,
interest in the property attached have to be decided by the
executing court and not by a separate suit.

 Where the decree is satisfied the attachment is removed.

 In case of injunction or specific performance

 Attachment is aimed at coercing the judgment debtor to
comply with the decree or expose him to penalty in case of
disobedience.

 In case of money decree

 It is primarily for sale of property for eventual satisfaction of the
decree out of sale proceeds.
C. Arrest and detention - Section 51(c)

 Arrest and detention can be ordered under Sec 51(c) which

needs to be read with the proviso and Sec 58.
 It states that - Where the decree is for payment of money,
execution by detention in civil prison should not be ordered
unless after giving the judgment debtor an opportunity of
showing cause why he should not be so detained.

 The court for reasons to be recorded in writing is satisfied-

 a. That the judgment debtor with the object of obstructing or
delaying the execution of the decree,
 I. is likely to abscond or leave the local limits of the jurisdiction
of the court
 II. has after the institution of the suit on which the decree was
passed, dishonestly transferred, concealed or removed any
part of his property or committed any other act of bad faith in
relation to his property, or
 b. That the judgment debtor has or has
had since the date of the decree, the
means to pay the amount of the decree
of some substantial part there of and
refuses or neglects or has refused or
neglected to pay the same, or

 c. That the decree is for a sum that the

judgment debtor was bound in
fiduciary capacity to account for.
 P. Narayan Bhat vs Syndicate Bank
 Law requires two things to be followed before issuing
warrant of arrest:-
 Firstly, that an opportunity to be given to the judgment
debtor to show cause and
 Secondly, the court has to record its satisfaction. Only in
case of disobedience to appear, it will be a ground to
issue of warrant.

 In case of specific performance and injunction -

rule 32
In case of a decree for specific performance of a contract
or for injunction a judgment debtor can be arrested
and detained.
Sec 58 – detention and
release
 (1) Every person detained in the civil prison
in execution of a decree shall be so detained,-
 (a) where the decree is for the payment of a
sum of money exceeding five thousand
rupees, for a period not exceeding three
months, and
 (b) where the decree is for the payment of a
sum of money exceeding two thousand
rupees, but not exceeding five thousand
rupees, for a period not exceeding six weeks
Contd
 Provided that he shall be released from such
detention before the expiration of the said period
of detention-
 (i) on the amount mentioned in the warrant for his
detention being paid to the officer in charge of the civil
prison, or
 (ii) on the decree against him being otherwise fully
satisfied, or
 (iii) on the request of the person on whose application
he has been so detained, or
 (iv) on the omission by the person, on whose
application he has been so detained, to pay
subsistence allowance
Contd
 Provided, also, that he shall not be released from such
detention under clause (ii) or clause (iii), without the
Order of the Court.

(1A) For the removal of doubts, it is hereby declared that

no Order for detention of the judgment-debtor in civil
prison in execution of a decree for the payment of money
shall be made, where the total amount of the decree does
not exceed two thousand rupees.

(2) A judgment-debtor released from detention under this

section shall not merely by reason of his release be
discharged from his debt, but he shall not be liable to be
re-arrested under the decree in execution of which he was
detained in the civil prison.
D. Appointment of receiver - Sec 51(d)

 Execution by appointment of receiver is entirely

at the discretion of the court.
 It cannot be claimed as a right and it is an
exception to the general rule that the
decree holder can choose the mode of
execution.
 Benefits to both decree holder and judgment
debtor needs to be shown rather than sale of
the attached property.
 No receiver can be appointed in respect of
property that is excluded from attachment.
E. Residuary clause -
Section 51(e)
 Where none of the above modes are
possible to be implemented, then the
court can grant the relief, in such other
manner as may be required.

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