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48 Execution Part 2

The document outlines the procedures and requirements for filing an application for execution of a decree in court. It details who may apply, against whom execution can be filed, the contents of the application, and the process for receiving and hearing the application. Additionally, it discusses limitations on execution, the possibility of staying execution, and the conditions under which notice may be dispensed with.

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2 views

48 Execution Part 2

The document outlines the procedures and requirements for filing an application for execution of a decree in court. It details who may apply, against whom execution can be filed, the contents of the application, and the process for receiving and hearing the application. Additionally, it discusses limitations on execution, the possibility of staying execution, and the conditions under which notice may be dispensed with.

Uploaded by

diyajayaraj168
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPTX, PDF, TXT or read online on Scribd
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EXECUTION

Part 2
Application for execution
All proceedings in execution commences with
the filing of an application for execution.

The application should be made to

a. the court which passed the decree or

b. where the decree has been transferred to


another court, to that court.
Who may apply?
The following persons may file an application for
execution.
a. Decree holder
b. LR’s of the decree holder
c. Representative of or a person claiming under
the decree holder
d. Transferee of the decree holder, in some
cases.
e. One or more of the decree holders, where it is
for the benefit of all or no contrary intention is
indicated.
Against whom can an execution be filed?
a. Judgment debtor, if he is alive
b. LR’s of the judgment debtor, if judgment
debtor is dead.
c. Representatives of or any person claiming
under the judgment debtor.
d. Surety of the judgment debtor.
Contents of the application – between
rules 11 to 14
1. Number of the suit.
2. Names of the parties.
3. Date of the decree.
4. Whether an appeal has been preferred from the
decree.
5. Whether any, and if any, what payment or other
adjustment, of the matter in controversy has been
made between the parties subsequently to the
decree.
6. Whether any, and if any, what previous application
has been made for execution of the decree, the dates
of such application and their results.
7. The amount of interest if any due upon the decree or
other relief granted thereby together with particulars of
any cross decree (decrees held by plaintiff and
defendant against each other) whether passed before or
after the date of the decree sought to be executed.

8. The amount of costs, if any, awarded.

9. The name of the person against whom execution is


sought.

10. Mode in which the assistance of the court is required


namely by delivery of property specifically decreed, by
arrest and detention, by appointment of receiver etc.

11. Application should be in writing, signed and verified


by the applicant.
Contents of application in relation to
specific type of property
1. Where the application is made for attachment
of movable property belonging to a judgment
debtor, but not in his possession, the
application for execution must be accompanied by
an inventory of the property to be attached
containing a reasonably accurate description of
the same.

2. Where the application is for attachment of


growing crop it shall specify
the time at which it is likely to be harvested.
 3. Where the application is for attachment of immovable
property of the judgment debtor it shall contain -
 a. The description of such property is sufficient to identify
the same, and
 b. The specification of the judgment debtor’s share or
interest therein.

 4. Where the application is for arrest and detention the


judgment debtor it shall state or be accompanied by
 an affidavit stating the grounds on which the arrest is
applied for.

 5. Where the application is for attachment of land,


registered in the office of the collector, the court may
require
 the applicant to produce a certified extract from such
register.
Receiving application
1. Admission - Rule 17
There is a duty cast on the court to see whether the
execution application complies with the above
requirements between rules 11 to 14.

If they are complied with the court must admit and
register the application.

If it is not complied with the court shall allow the defect
to be remedied then and there or within the time fixed by
it.

If the defect is not remedied within that period, the


court shall reject the application.
2. Notice of execution - Rule 22
 As a general rule the law does not require any notice to be
issued for execution.

 But in the following cases ‘Show Cause Notice’ must be issued


by the court as to ‘why the decree should not be executed
against him?’

 a. Where an application is made two years after the date of the


decree or more than two years after the date of the last order
made on any previous application for execution, or

 b. Where the application is made against the LR’s of the JD.

 c. Where an application is made for execution of a decree passed by


any of the superior courts for any reciprocating territory, or
 d. Where an application is made against the assignee
or receiver in case of insolvency where the JD has been
adjudged to be an insolvent.
 Assignee in insolvency represents the interests of the
creditors and may recover property for their benefit.

 e. Where the decree is for payment of money and the


execution is sought against the person of the JD
(arrest) or

 f. Where an application is made against a person who


has furnished security or given a guarantee for the
performance of a decree or for the restitution of
property or for the payment of money to render him
personally liable or to sell his property or

 g. Where an application is made by the transferee or


assignee of the decree holder.
Object
To afford the judgment debtor an
opportunity to put forward objections
about maintainability of the execution
application and to prevent him from being
taken by surprise.

To enable him to satisfy the decree before


execution is issued against him.
Dispensation of notice
Rule 22(2) empowers the court to dispense
with the notice if it would cause
unreasonable delay or would defeat the
ends of justice.

But reasons have to be recorded for


dispensation of notice.
Procedure after notice
Rule 23
If notice is issued under Rule 22 and he does
not appear/ show cause, against execution,
the court shall, unless it sees any cause to the
contrary, issue process for the execution of
decree.

But where such person offers his objections


against execution of decree, the court shall
consider them and pass such order as it
thinks fit.
3. Hearing of the application - Rules 105, 106
Rule 105
The court before which an application is pending may fix
a date for the hearing of such application.

 When the application is called on for hearing and


applicant is not present, the court may dismiss the
application.

On the other hand if the applicant is present and the


opposite party is not present the court may hear the
application exparte and pass such order as it thinks fit.
Rule 106
If the application is dismissed for default or an
ex parte order is passed, then the aggrieved
party may apply to the court to set aside such
order and

The court shall set aside that order if sufficient


cause is shown.

An order rejecting an application under rule


106(1)is appealable.
Limitation
Period of limitation for execution of a decree
other than a decree granting a mandatory
injunction is 12 years from the date of the
decree.

Limitation for execution of a decree for


mandatory injunction is three years from
the date of the decree.
Stay of execution - Order 21 rule 26
 Executing Court or transferee court can stay
execution of decree for a reasonable time to enable
the judgment debtor to apply for stay.

 The only courts that can stay the execution


proceedings are:
 A) Court which has passed the decree or
 B) The Appellate court.

 The court shall require security or impose conditions


upon the judgment debtor as it thinks fit, before making
an order to stay the execution.
***********

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