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Modes of Execution of Decree
Question: After filing the first application for execution of decree within three years, the decree-holder may file any new application for any number of decrees within three years of the disposal of each previous application, but not later than 3 years from the date of the decree. Explain the statement in the light of Section 48 of the Code of Civil Procedure, 1908. Is there any exception to such limitation?
Answer:
Section 48 of the Code of Civil Procedure provides the maximum limit for filing a suit for execution. According to this section, the application can be filed within 12 years, but there is no time limit for filing the first application in Section 48. In this case, Article 182 of Schedule 1 of the Limitation Act has to be followed. If the decree holder fails to file an application for execution within 3 years, he will be barred by limitation and in this case he will not be able to avail of the 12-year limitation period under Section 48. The deadline for filing the first application is stated, but if for any reason the first issued application is dismissed or reissued application needs to be filed again, all the last applications can be made within 3 years from the date of ordering. Such applications can be filed up to 12 years as many times as the decree holder wants, but at no option it can be filed after 3 years from the order or decree.
Exceptions to such limitation:
As per section 48 (2) of the Code of Civil Procedure, in case of obstruction of execution of decree by fraud or use of force by the judgment-debtor within 12 years immediately preceding the date of application, the decree-holder may file an application for execution after 12 years.
Question: Describe the modes of execution under Section 51 of The Code of Civil Procedure, 1908
Answer:
Modes of execution:
According to section 51 of the Code of Civil Procedure, a decree may be executed on the following manners:
(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;
(d) by appointing a receiver, or
(e) in such other manner as the nature of the relief granted may require:
If the decree is for money suit, the judgment debtor shall not be sent to civil prison, however the court may send the judgment debtor to civil prison in the following cases:
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-
(a) that the judgment-debtor, with the object or effect 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, or
(ii) has, after the institution of the suit in 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 or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
Question: X obtains a decree of recovery of possession against Y in a civil case. Y did not grant possession to X within the time fixed by the court. For this reason, X filed a decree against Y. The court's Nazir provided X the possession of Z's property in lieu of Y's property and the court disposed of the case in Y's favor. Does Z have any chance to get back the said land? Discuss briefly.
Answer:
Description of facts:
X obtains a decree of recovery of possession against Y in a civil case. Y did not grant possession to X within the time fixed by the court. For this reason, X filed a decree against Y. The court's Nazir provided X the possession of Z's property in lieu of Y's property and the court disposed of the case in Y's favor.
Issue:
Does Z have any chance to get back the said land?
Legal explanation:
According to rule 100 of order 21-
(1) Where any person other than the judgment-debtor is disposed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. Dispossession by decree-holder or purchaser.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
According to rule 101 of order 21-Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.
Question: What is the procedure for execution of decree in the following suits? Suits for specific performance of a contract, suit for injunction, and a suit for restitution of conjugal rights, decree for delivery of possession of movable property
Answer:
In specific performance of a contract:
According to rule 32 of order 21, a decree for specific performance of a contract can be
executed in the following manner:
1. By detention in the civil prison, or
2. by the attachment property, or
3. by both.
Where the party against whom a decree for specific performance has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
Suit for injunction:
According to rule 32 of order 21, a decree for injunction can be executed in the following manner:
1. By detention in the civil prison, or
2. by the attachment property, or
3. by both.
Where the party against whom a decree for injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
Restitution of conjugal rights:
According to rule 32 of order 21, a decree for restitution of conjugal rights can be executed in the following manner:
1. by the attachment property.
According to rule 33 of order 21, if the court finds that the decree is not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments. The amount of security shall depend on the social status and ability of the husband and wife.
Decree for delivery of possession of movable property:
Where the decree is for any specific movable, or for any share in a specific movable, it may be executed by the seizure, if practicable, of the moveable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.
Where any attachment has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree-holder.