MODES OF EXECUTION CIVIL PROCEDURE CODE.

MODES OF EXECUTION (O.21)
Sec. 51 enumerates the various modes of the execution of a
decree:
i. Delivery of any property specifically decreed.
ii. Attachment and sale or sale without attachment of
property.
iii. Arrest and detention in prison of the judgment-debtor.
iv. By appointing a receiver.
v. Such other manner as the nature of the relief granted
may require.

Order 21 of the Civil Procedure Code (CPC) of India
deals with the execution of decrees. Rules 30 to 40 of
this order specifically pertain to the execution of
money decrees.
Rule 30: Decree for payment of money
This rule states that a decree for the payment of money
can be executed by:
•Detention of the judgment debtor in civil prison
•Attachment and sale of the judgment debtor's property
•Both of the above

Rule 31: Decree for specific movable property
If the decree is for specific movable property, the court can execute it by:
•Seizing the property and delivering it to the decree holder
•Ordering the judgment debtor to deliver the property to the decree holder
•Detaining the judgment debtor in civil prison
•Attaching and selling the judgment debtor's property
Rule 35: Decree for the delivery of movable property
When the decree is for the delivery of movable property, the court can
enforce it by:
•Taking possession of the property and delivering it to the decree holder
•Ordering the judgment debtor to deliver the property to the decree holder

Specific performance of contract/Injunction: Where a
decree is for specific performance of a contract or for
injunction, and the party against whom it has been passed
has wilfully failed to obey it, it may be executed by his
detention or by attachment of his property or both (Rule
32).
Restitution of Conjugal rights: If a party wilfully fails to
obey a decree of Restitution, it may be executed by the
attachment of property (Rule 32). If the decree is against
the husband, and he does not comply with it in a fixed time,
the court may order him to make periodical payments to
decree-holder (Rule 33).

Rule 34: Decree for execution of document, or endorsement of
negotiable instrument
This rule applies when a court decree orders a party to execute a
document (e.g., a sale deed) or endorse a negotiable instrument (e.g., a
check).
If the judgment debtor (the person required to execute or endorse) fails to
comply with the decree, the decree holder (the person who won the case)
can take certain steps.
Steps Involved:
•Draft Preparation: The decree holder prepares a draft of the document
or endorsement as per the terms of the decree and submits it to the court.
•Service of Draft: The court serves the draft on the judgment debtor,
along with a notice requiring them to raise any objections within a
specified time.

Objections: If the judgment debtor has objections, they must
submit them in writing within the given timeframe.
Court's Decision: The court considers the objections and may
approve the draft as it is or make necessary alterations.
Final Draft and Execution: The decree holder submits the final
draft, incorporating any changes directed by the court, on the
required stamp paper (if applicable). The judge or an authorized
court officer then executes the document on behalf of the
judgment debtor.
Registration:
•If the document requires registration under any law, the court
ensures it is registered accordingly.

Rule 36: Decree for delivery of immovable property when in
occupancy of tenant
This rule deals with the situation where a decree for possession
of immovable property is passed, but the property is occupied
by a tenant or other person who has a right to occupy it and is
not bound by the decree to relinquish possession.
Delivery of possession: The court will order delivery of
possession to be made by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming the
substance of the decree by beat of drum or other customary
mode at a

Occupancy rights: The rights of the tenant or other occupant who is
not bound by the decree are protected. The decree holder cannot
dispossess such a person.
Notice to occupant: The process of affixing the warrant and
proclaiming the decree serves as notice to the occupant about the
decree and the impending change of possession.
Purpose:
This rule aims to balance the rights of the decree holder to obtain
possession of the property with the rights of tenants and other
occupants who are not bound by the decree. It ensures that the process
of delivering possession is carried out in a fair and transparent manner,
with notice to all concerned parties.

Arrest and Detention in the Civil Prison
Rule 37: Discretionary Power to Permit Judgment Debtor to Show
Cause Against Detention in Prison
This rule grants the court the discretion to issue a notice to the judgment
debtor, asking them to appear in court and explain why they should not be
detained in civil prison for failing to comply with the decree.
his notice is typically issued instead of directly issuing a warrant for arrest.
Rule 38: Warrant for Arrest to Direct Judgment Debtor to Be Brought
Up
If the judgment debtor fails to appear in response to the notice under Rule
37, or if the court is satisfied that the judgment debtor is likely to abscond,
the court may issue a warrant for their arrest.
The warrant will direct the officer executing it to bring the judgment debtor
before the court as soon as possible.

Rule 39: Subsistence Allowance
This rule deals with the subsistence allowance for the judgment debtor while
they are detained in civil prison.
The decree-holder (the person to whom the money is owed) is required to pay a
subsistence allowance to the judgment debtor for their upkeep in prison.
Rule 40: Proceedings on Appearance of Judgment Debtor in Obedience to
Notice or After Arrest
When the judgment debtor appears in court, either voluntarily or after being
arrested, the court will hear both parties.
The court will give the judgment debtor an opportunity to explain why they
should not be detained in prison.
After considering the evidence and arguments, the court will decide whether to
detain the judgment debtor in civil prison.
The court may also, in its discretion, release the judgment debtor on certain
conditions, such as furnishing security for their appearance.

ARREST AND DETENTION (SECTION 55-59)
Section 55: Arrest and Detention
General Rule: A judgment debtor may be arrested and detained in civil
prison in execution of a decree.
Restrictions:
No dwelling house shall be entered after sunset and before sunrise for the
purpose of making an arrest.
The outer door of a dwelling house cannot be broken open unless it is in the
occupancy of the judgment debtor and he refuses or prevents access.
If the room is occupied by a woman who doesn't appear in public due to
customs, she must be given notice and reasonable time to withdraw.
If the decree is for payment of money, and the judgment debtor pays the
amount and costs of arrest to the officer, he shall be released immediately.

Section 56: Prohibition of Arrest or Detention of Women
Women cannot be arrested or detained in civil prison in
execution of a decree for the payment of money.
Section 57: Subsistence Allowance
The State Government may fix scales of monthly allowances
for the subsistence of judgment debtors in civil prison.
Section 58 of the Code of Civil Procedure, 1908,
addresses the detention and release of individuals in civil
prison in execution of a decree. This section outlines the
conditions under which a person can be detained and the
circumstances that lead to their release.

Detention periods:
• For decrees exceeding Rs 5000: A person can be detained for a
maximum period of three months.
• For decrees between Rs 2000-5000: The detention period is limited
to six weeks.
• No detention for decrees under Rs 2000: The law explicitly states
that no order for detention shall be made if the total amount does
not exceed Rs 2000.
Conditions for release:
A person detained can be released before the expiration of their
detention period under the following conditions:
•Payment of the amount specified in the warrant for detention to the
officer in charge of the civil prison.

•Full satisfaction of the decree against them.
•Request from the applicant who initiated their detention.
•Failure of the applicant to pay subsistence allowance
Post-Release Status:
A judgment-debtor released under this section does not discharge their
debt solely due to release from detention. However, they cannot be re-
arrested under the same decree for which they were detained.
Section 59: Release on ground of illness
This section deals with the release of a judgment debtor from civil
prison on medical grounds. It empowers the court to order the release
of a judgment debtor who is suffering from a serious illness and is not
in a fit state of health to be detained in the civil prison. The section
also allows for the release of a judgment debtor on the ground of an
existing infectious or contagious disease.

Property liable to attachment and sale in
execution of decree (Section 60)
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, hundies, promissory notes, govt. securities, bonds
or other securities for money, debts, shares in a corporation
and save as hereinafter mentioned, all other saleable property,
movable or immovable, belonging to the judgment-debtor or
over which, 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 judgment-debtor or by another person
in trust for him or on his behalf:

Provided that the following properties shall not be liable to such
attachment or sale, namely:
• The necessary wearing apparel, cooking vessels, beds and
beddings of the judgment debtor, his wife and children, and
such personal ornaments as, in accordance with religious
usage, cannot be parted with by any woman;
• Tools of artisans and, where the judgment-debtor is an
agriculturist; his implements of husbandry and such cattle and
seed grain as may, in the opinion of the court be necessary to
enable him to earn his livelihood as such, and such portion of
agricultural produce or of any class of agricultural produce as
may have been declared to be free from liability under the
provision of the section 61 of CPC.

• Houses or other buildings (with the materials and the sites thereof
and the land immediately appurtenant thereto and necessary for their
enjoyment) belonging to an agriculturist or a labourer or a domestic
servant and occupied by him
• Books of account
• A mere right to sue for damages
• Any right of personal service
• Stipends and gratuities allowed to pensioners of the govt. or of local
authority or of any other employer or payable out of any service
family pension fund notified in the official gazette by the Central
govt. or the State govt. in this behalf, and political pensions
• The wages of labourers and domestic-servants, whether payable in
money or kind.

Section 61 of the Code of Civil Procedure (CPC) 1908 deals with the
partial exemption of agricultural produce from attachment in
execution of a decree.
Purpose: This section aims to protect farmers and their families by
ensuring they have enough agricultural produce for:
•Cultivation until the next harvest
•Sustenance of themselves and their families
State Government's Power: The State Government can, through an
order published in the Official Gazette, declare that a specific portion of
agricultural produce (or a class of agricultural produce) is exempt from
attachment. This can be a general order applying to all cases or a special
order for a specific situation.
Scope: This exemption applies to the agricultural produce of the
judgment debtor (the person who owes money under the court decree).

Section 62 of the Code of Civil Procedure (CPC) in India deals with the
seizure of property in a dwelling-house during the execution of a decree.
Time Restrictions:
•No person executing a process for the seizure of movable property can enter
a dwelling-house after sunset and before sunrise. This ensures that such
actions are not carried out during odd hours, respecting the occupants' privacy
and peace.
Breaking Open Doors:
•The outer door of a dwelling-house cannot be broken open unless:
• The dwelling-house is in the occupancy of the judgment-debtor (the
person against whom the decree was passed).
• The judgment-debtor refuses or prevents access to the dwelling-house.
•Even after gaining lawful entry, any room door can be broken open if
necessary for the seizure.

Protection of Women:
•If a room within the dwelling-house is occupied by a
woman who, according to customs, does not appear in
public, the person executing the process must:
•Give her notice that she is free to withdraw.
•Allow her reasonable time to withdraw.
•Only after this can the person proceed with the seizure.
Section 63 of the Code of Civil Procedure (CPC) in India
deals with situations where the same property is attached in
execution of decrees by more than one court.

Hierarchy of Courts: When multiple courts have attached the same
property, the court of the highest grade will ultimately handle the
property, its realization (sale), and any claims or objections related to
the attachment.
Same Grade Courts: If the attaching courts are of the same grade, the
court that first attached the property takes precedence.
Purpose:
Section 63 aims to avoid confusion and conflicting orders when
multiple courts are involved in the execution of decrees against the
same property. It establishes a clear mechanism for determining which
court has the authority to proceed with the sale and distribution of
proceeds.

Private Alienation of Property After Attachment
Section 64 of the Civil Procedure Code (CPC) of 1908 addresses private
alienation of property after attachment.
 It states that any private transfer or delivery of attached property, or
any interest therein, is void against all claims enforceable under the
attachment.
This provision primarily aims to prevent fraud on decree-holders and
protect the rights of attaching creditors who are entitled to satisfaction
from the judgment-debtor's assets.
•Object: The attachment of property aims to notify the judgment-debtor
not to alienate the property and the public not to deal with it. The
provision ensures that the rights of decree-holders are protected,
preventing judgment-debtors from circumventing legal obligations by
transferring property after attachment.

Effect of Attachment: Section 64 puts a ban on alienation of
property after attachment. Any private transfer or delivery of
the attached property or any interest, and any payment to the
judgment-debtor contrary to the attachment, is void against
all claims enforceable under the attachment.

ATTACHMENT OF PROPERTY
Rule 41: Examination of judgment-debtor as to his property
This rule empowers the court to examine the judgment-debtor (the
person against whom the decree has been passed) to ascertain the
details of their property and assets that can be used to satisfy the
decree. This examination can be done orally or through an affidavit.
Rule 42: Attachment in case of decree for rent or mesne profits or
other matter, amount of which to be subsequently determined
This rule deals with situations where the decree involves matters like
rent, mesne profits (profits from property), or other amounts that need
to be determined later. In such cases, the court can order the
attachment of the judgment-debtor's property even before the exact
amount owed is ascertained.

Rule 43: Attachment of movable property, other than agricultural
produce, in possession of judgment-debtor
This rule outlines the procedure for attaching movable property
(excluding agricultural produce) that is in the possession of the judgment-
debtor. The attachment is typically done by actual seizure of the property,
and the attaching officer is responsible for its custody.
Rule 43A: Custody of attached movable property
This rule elaborates on the custody and preservation of attached movable
property. It lays down the responsibilities of the person entrusted with the
custody of the property and ensures that it is not misused or damaged.
Rule 44: Attachment of agricultural produce
Applicability: This rule applies when the property to be attached in
execution of a decree is agricultural produce.
.

Mode of Attachment: The attachment is made by affixing a copy of
the warrant of attachment:
Growing Crops: On the land where the crop is growing.
Harvested Produce: On the threshing floor or place of storage.
Additional Copy: Another copy of the warrant must be affixed on
the outer door or a conspicuous part of the house where the
judgment-debtor resides or carries on business.
Purpose:
To give notice to the judgment-debtor and the public that the
agricultural produce has been attached and is under the custody of
the court.
To prevent the judgment-debtor from disposing of or removing the
attached produce.
.

Example:
A decree is passed against a farmer for non-payment of a
debt. The decree-holder seeks to attach the farmer's standing
crop of wheat. The court issues a warrant of attachment, and
a copy of the warrant is affixed to the field where the wheat
is growing and another copy on the door of the farmer's
house. The wheat is now under attachment and cannot be
sold by the farmer without the court's order.
Rule 45: Rule 45 of Order 21 of the Code of Civil Procedure
(CPC) 1908, pertains to the attachment of agricultural
produce.

Rule 45 of the Code of Civil Procedure (CPC) pertains to the
attachment of agricultural produce: when a court orders the seizure of
such produce. The court will arrange for its safe keeping, for which any
application for the attachment of a growing crop must specify when it
will likely be ready to be harvested.
The judgment-debtor may tend to, cut, gather, and store the produce to
mature or preserve it, and if they fail to do so, the decree-holder may,
with the court's permission, do so themselves, recovering the costs from
the judgment-debtor.
Agricultural produce attached as a growing crop remains under
attachment even after being severed from the soil. If attachment of a
growing crop is made long before it is ready to be cut, the court may
suspend the order and prohibit removal of the crop until harvest time,
ensuring the attachment order is made at least twenty days before
harvesting.

Rule 46: Attachment of debt, share and other property
not in possession of judgment-debtor
Order 21 Rule 46 of the Code of Civil Procedure (CPC)
provides the basis for garnishee orders, which allow a court
to attach a debt in the hands of a third party (the
garnishee). This prevents the garnishee from paying the
judgment debtor and instead directs them to pay the
judgment creditor. The rule applies to debts due to the
judgment debtor, except those secured by a mortgage or
charge. The attachment serves as a preliminary step to ensure
the debt is preserved for satisfying the judgment.

GARNISHEE ORDER (Rule 46A- 46I)
A Garnishee Order is a court order under Rule 46 of Order
21 of the Code of Civil Procedure (CPC), 1908, that allows a
judgment creditor to recover debts from a third party (the
garnishee) who owes money to the judgment debtor. Order
21, Rules 46 A to 46 I of the CPC, inserted by the
Amendment Act of 1976, detail the procedures in garnishee
cases. The primary aim of a garnishee order is to make the
debt due by the debtor of the judgment debtor available to
the decree holder in execution without needing to file a suit.

Rule 46A: Notice to the Garnishee
Rule 46A mandates that the court issue a notice to the garnishee once a
creditor applies for a garnishee order. This notice directs the garnishee to
either pay the debt into court or show cause as to why they should not do so.
The application for this notice must be made on an affidavit, where the
creditor affirms that the garnishee is indebted to the judgment debtor. This
rule ensures that the garnishee has an opportunity to respond before the
court orders the payment.
Rule 46B: Compliance by the Garnishee
If the garnishee fails to comply with the notice issued under Rule 46A—by
either paying the debt or appearing before the court to contest the claim—
the court may pass an order compelling the garnishee to make the payment.
The order is treated as a decree against the garnishee, which means that the
court can initiate execution proceedings to recover the amount if the
garnishee does not voluntarily comply.

Rule 46C: Disputed Liability of the Garnishee
In cases where the garnishee disputes their liability to the judgment
debtor, Rule 46C provides that the court must conduct a trial to
determine the issue. The court will treat the dispute as an issue in a suit
and decide the garnishee’s liability based on the evidence presented.
The garnishee can contest the garnishment on several grounds, such as
claiming that they owe nothing to the judgment debtor, or that the debt
is contingent and not immediately due.
Rule 46D: Third-Party Claims
If a third party claims to have a lien or other interest in the debt, Rule
46D requires the court to allow the third party to appear and prove
their claim. The court may then decide how to deal with the third
party’s interest before issuing the garnishee order.

Rule 46F: Payment by Garnishee as Discharge
Once a garnishee makes a payment in compliance with the
garnishee order, it acts as a valid discharge of their liability
to the judgment debtor. Even if the judgment is later reversed
or set aside, the garnishee will not be held responsible for the
amount paid.
Example:
If person A owes 1,000 to person B, and person B owes
₹
1,000 to person C, a garnishee order may direct person A to
₹
pay person C instead of person B, because person B owes
that amount to person C, who obtained the order.

Important Cases
Mackinnun Mackenzie & Co. v. Anil Kumar(AIR 1975 CAL 150 ):
The court held that where garnishee disputes their liability, the court
must raise an issue and determine the liability of the garnishee.
Surinder Nath Kapoor v. Union of India( AIR 1988 SC 1777 ): It was
held by the Supreme Court that garnishee order is an immense power
of the court and it is based on the principles of fairness and used
judicially according to the prevailing conditions.
Global trust bank Ltd. V. Fargo freight (AIR 2002 DELHI 13): The
court held that Rule 46A not only applies to the debt of the party other
than mortgage debt but the negotiable instrument can also be attached
by the court. Further, it was observed that it is the prima facie duty of
the garnishee to reveal the liability dispute before the court of law.
•:

Rule 47: Deals with the attachment of movable property in the
possession of the judgment debtor: Where the property to be attached
consists of the share or interest of the judgment-debtor in movable
property belonging to him and another 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
Rule 48: Attachment of salary or allowances of servant of the
Government or railway company or local authority:This rule
specifically addresses the attachment of salaries and
allowances for public servants. It allows a court to order
that a portion of an employee's salary be withheld to
satisfy a debt. The court can direct this withholding
either in a lump sum or through monthly installments.
•.

Rule 48A: Attachment of salary or allowances of private
employees: When a court needs to recover money from a
private employee's salary or allowances, it can order that the
money be taken from the salary or allowances. The court
order can stipulate that the money be taken in one lump sum
or in monthly installments, as the court deems appropriate.
Upon receiving the court's order, the person responsible for
paying the employee must comply with the directive. If a
portion of the employee's salary is already being withheld
due to a previous attachment order, the disbursing officer
must return the subsequent order to the court, providing full
details of the existing attachment.

Rule 49: Attachment of partnership property: states that property
belonging to a partnership cannot be attached or sold in execution of a decree
unless the decree is against the partnership firm itself or against the partners
as a group. This means that individual partners' properties cannot be seized
solely based on debts incurred by the partnership unless specific legal
provisions are met. If a creditor has a judgment against an individual partner,
they can request the court to charge that partner's share in the partnership
property and profits. The court may appoint a receiver to manage this share
and can order the sale of that interest if necessary.
Rule 50: Execution of decree against firm: Execution may be granted
•Against any property of the partnership.
•Against any person who has appeared in their own name under Rule 6 or
Rule 7 of Order XXX, or who has admitted on the pleadings that they are a
partner, or who has been adjudged to be a partner.
•Against any person who has been individually served as a partner with a
summons and has failed to appear

If a decree-holder seeks to execute the decree against a
person not mentioned in sub-rule (1) clauses (b) and (c), as a
partner in the firm, they may apply to the Court for
permission. The court may grant such leave where the
liability is not disputed. Where such liability is disputed, the
court may order that the liability of such person be tried and
determined.
Rule 51: Attachment of Negotiable instruments: Where
the property is a NI 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.

Rule 52: Attachment of property in custody of court or public
officer
Applicability: This rule applies when the property to be attached is
already in the custody of a court or a public officer. This could be due
to various reasons, such as the property being involved in another legal
case or being held by a government official.
Mode of Attachment: The attachment is made by issuing a notice to
the court or public officer who has custody of the property. This notice
requests them to hold the property subject to the further orders of the
court that issued the attachment order.
Determination of Claims: If the property is in the custody of a court,
any disputes regarding ownership or priority between the decree-
holder and any other person (excluding the judgment-debtor) will be
resolved by that court.

Rule 53: Attachment of Decrees
When the property to be attached is a decree for the payment of money, or for
sale in enforcement of a mortgage or charge, the attachment shall be made as
follows:
• If the decrees were passed by the same Court, then by Order of such Court
• If the decree sought to be attached was passed by another Court, then by
the issue to such other Court of a notice by the Court which passed the
decree sought to be executed, requesting such other Court to stay the
execution of its decree unless and until
• the court which passed the decree sought to be executed cancels the notice,
or
• the holder of the decree sought to be executed, or his judgment-debtor
with the previous consent in writing of such decree-holder, or with the
permission of the attaching Court, applies to the Court receiving such
notice to execute the attached decree.

Rule 54: Attachment of immovable property
Prohibitory order: When attaching immovable property, the court
issues an order that prohibits the judgment-debtor from transferring or
charging the property in any way. The order also prevents anyone from
benefiting from such transfer or charge.
Notice to judgment debtor: The order requires the judgment-debtor
to attend court on a specified date to be informed about the date for
settling the terms of the sale proclamation.
Proclamation of the order: The order must be proclaimed at a
location on or near the property via a customary method such as beat
of drum. A copy of the order is affixed to a conspicuous part of the
property, the court-house, the office of the Collector of the district (if
the land pays revenue to the government), and the office of the Gram
Panchayat if the property is in a village.

Purpose: The mandatory prohibition under sub-rule (1) of Rule 54 of
Order 21 is intended to ensure proper enforcement of the decree.
Continuation of Attachment: An attachment of property remains in
effect until the property is sold and the sale is confirmed, unless it is
removed or determined according to the law.
Rule 55: Removal of attachment after satisfaction of decree
Attachment may be terminated under the following circumstances:
• When the decreed amount, including costs, charges, and expenses
resulting from the attachment, is paid into the Court
• When satisfaction of the decree is otherwise made through the Court
or certified to the Court
• When the decree is set aside or reversed.

Rule 56: Order for payment of coin or currency notes to party entitled
under decree
Order 21, Rule 56 of the Code of Civil Procedure (CPC) deals with situations
where the attached property during the execution of a decree consists of current
coin or currency notes. In such cases, the court can order the payment of these
coins or currency notes, or a sufficient portion thereof, to satisfy the decree.
Rule 57: Determination of attachment
Dismissal of Execution Application: When an application for execution of a
decree is dismissed by the court, the court must decide what happens to any
property that has been attached during the execution process.
Court's Direction: The court must specifically direct whether the attachment
should continue or cease. If the court decides that the attachment should
continue, it must also state how long the attachment will remain in effect.
Deemed Cessation: If the court fails to give any direction regarding the
attachment, it is automatically considered to have ceased.

Rule 58: Concerns the adjudication of claims and
objections to the attachment of property
It allows parties to raise objections or claims related to the
attachment, which the court must then adjudicate.
According to sub-rule (2), questions of title or interest in the
attached property arising between parties in the proceeding
are to be determined by the court dealing with the claim or
objection, not by a separate suit. The court can then allow or
disallow the claim, release the property, or continue the
attachment subject to any existing interests.

Key aspects of Rule 58:
•Investigation of Claims and Objections: This rule provides a
mechanism for investigating claims and objections to the
attachment of properties.
•Grounds for Objection: A claim or objection can be made on
the grounds that the property attached is not liable to such
attachment.
Conditions for Entertaining Claims: The court may refuse to
entertain a claim if:
•The property has already been sold before the claim is preferred
or the objection is made.
•The court believes that the claim or objection was designedly or
unnecessarily delayed.

•Adjudication Process: The court dealing with the claim will
determine all questions relating to the right, title, or interest
in the property attached. This determination will be made by
the court and not through a separate suit.
Orders of the Court: After determining the questions, the
court may:
•Allow the claim or objection and release the property from
attachment, either wholly or partially.
•Disallow the claim or objection.
•Continue the attachment subject to any mortgage, charge, or
other interest in favor of any person.

•Third-Party Interests: Order 21 Rule 58 CPC protects the
interests of third parties who may have an interest in the
attached property.
•Attachment Requirement: There must be an existing
attachment of the property for a claim to be maintained
under Order 21 Rule 58. The rule applies to both movable
and immovable properties.
If an objection is raised by a party or their representatives, it
falls under Section 47 of the CPC and is decided by the
executing court. If a third party raises the objection, they
must file an application under Order XXI, Rule 58 CPC
before the executing court.

PRECEPTS (SECTION 46)
Section 46 of the Code of Civil Procedure (CPC) deals with
precepts. A precept is a written order issued by a court to another
court to attach property of the judgment debtor.
Key points:
Purpose: To prevent the judgment debtor from disposing of their
property before the decree can be executed.
Issuance: The court that passed the decree can issue a precept to
any other court that would be competent to execute the decree.
Application: The decree holder must apply to the court for the
issuance of a precept.

Attachment: The court to which the precept is sent must attach
the property as directed in the precept.
Duration: The attachment under a precept cannot continue for
more than two months unless extended by an order of the court
that passed the decree or the decree is transferred to the court that
made the attachment.
Important Considerations:
• The court issuing the precept must be competent to execute
the decree.
• The court to which the precept is sent cannot question its
validity.
• The attachment under a precept is temporary.

Example:
Application for precept: Rajesh (the decree-holder) applies to
the Mumbai court (which issued the decree) to issue a precept.
Issuance of precept: The Mumbai court issues a precept to the
Delhi court, instructing it to attach Suresh's property located in
Delhi.
Action by receiving court: Upon receiving the precept, the
Delhi court attaches Suresh's property according to legal
procedures.
Duration and further action: This attachment will last for
two months unless extended or if Rajesh applies for further
action within that timeframe.

Important Cases
M.L. Kapoor & Sons v. Union of India(AIR 1974 SC 87 ): The
SC held that executing court has the same powers in executing
the decree as if it had been passed by itself. This means that the
executing court can take all necessary steps to enforce the decree,
including issuing a warrant of arrest or attachment of property,
appointing a receiver, selling property, and making payments to
the parties.
Syed Abdur Rahman v. Tripura Modern Bank Limited [1974] 44
Comp Cas 201 (Gauhati) : The Gujarat HC clarified that an
attachment made under a precept is only valid for two months. It
emphasized that further proceedings under the CPC are necessary
for extending the attachment beyond this period.

SALE
Section 65: Purchaser’s title
Where immovable property is sold in execution of a decree and
such sale has become absolute, the property shall be deemed to
have vested in the purchaser from the time when the property is
sold and not from the time when the sale becomes absolute.
Section 67: Power of State Government to make rules as to
sales of land in execution of decrees for payment of money
Section 67 of the Code of Civil Procedure (CPC) of 1908
addresses the power of the State Government to make rules
regarding land sales when executing decrees for payment of
money.

Rule-making power: The State Government may, via notification in
the Official Gazette, create rules for local areas regarding the sale of
land when executing decrees for payment of money. This is applicable
when the land interests are uncertain, making it impossible to
determine their value.
Special rules in force: If special rules regarding land sales were
already in effect when the Code came into operation, the State
Government can declare these rules to remain in force or modify them
through notification in the Official Gazette. The notification must
detail the rules that are continued or modified.
Legislative review: Every rule made under this section must be
presented before the State Legislature as soon as possible after it is
made.

SALE AND DELIVERY OF PROPERTYUNDER
EXECUTION OF DECREE (Rule 65-73)
A decree may be executed by attachment and sale or by sale
without attachment of any property. Rules 64-106 (O.21 and
Secs.65-72 deal with the subject relating to sale and delivery of
movable and immovable properties.
General provisions (Rule 64-73)
i. A court executing a decree may order that any property
attached by it and liable to sale (or such portion of property as
may be sufficient to satisfy the decree) may be sold and
proceeds of it to be paid to the decree-holder (Rule 64).
ii. Every sale is to be conducted by an officer of the court in
public auction (Rule 65).

iii. Before such auction, a proclamation of the intended sale
is to be made by the court, after notice to the decree-holder
and the judgment-debtor; the proclamation is to contain all
material information regarding the property to be sold (Rule
66).
iv. Every proclamation shall be made by beat of drum or
other customary mode and a copy of it must be affixed on a
conspicuous part of the property and of the courthouse and
also in the Collector’s office gram panchayat if the property
is land-paying revenue. If the court directs, it should also be
published in the Official Gazette or a local newspaper (Rule
67).

v. Except in the case of property subject to speedy and
natural decay, or the property keeping of which is expensive,
no sale without the consent in writing of the judgment-debtor
can take place before 15 days in case of immovable property
and before 7 days in case of movable property from the date
of proclamation in the court-house (Rule 68).
vi. The court may adjourn a sale, but if it is adjourned for 30
days or more, a fresh proclamation is to be issued, unless the
judgment-debtor consents to waive it. Every sale shall be
stopped if before the property is knocked down, the debts
and costs are tendered to the officer conducting the sale, or
paid into the court (Rule 69).

vii. A decree-holder cannot, without the express permission
of the court purchase the property sold in execution of his
own decree. If the court permits him, he is entitled to a set-
off; but if not so permitted, the court may set aside the sale
upon the application of the judgment-debtor (Rule 72). Thus,
such a sale is not void ab initio, but merely voidable.
viii. A mortgage of immovable property cannot, without the
court’s leave, purchase the property sold in execution of a
decree on the mortgage (Rule 72-A). Any officer/person
having any duty to perform in connection with an execution
sale, cannot bid for, acquire, etc. any interest in the property
sold in execution (Rule 73).

SALE OF MOVABLE PROPERTY (RULE
74-81)
Rule 74: Sale of agricultural produce
Growing crops: If the agricultural produce is a growing crop, it
must be sold on or near the land where it has grown.
Cut or gathered produce: If the produce has been harvested, the
sale should occur at or near the threshing floor or storage area
where it is kept. The court may direct that the sale be held at a
public place if it believes this would enhance the sale price
Postponement of Sale: f a fair price is not offered during the
initial sale attempt, and if the owner or an authorized
representative requests a postponement, the sale can be delayed
until the next day or until the next market day.

Court’s Discretion: The court has the authority to determine
whether to postpone sales based on market conditions and
potential price improvements.
Rule 75: Special provisions relating to growing crops
Order 21, Rule 75 of the Code of Civil Procedure (CPC) 1908,
addresses special provisions for selling growing crops. If the
crop can be stored, the sale should be scheduled to allow
enough time for harvesting and preparation for storage, and
the sale cannot occur until after the crop is cut, gathered, and
ready for storage. However, if the crop cannot be stored, it can
be sold before it is cut and gathered, and the purchaser has the
right to enter the land to tend to, cut, or gather the crop.

Rule 76: Negotiable instruments and shares in corporation
Where the property to be sold is a NI 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 of share through a broker.
Rule 77: Sale by public auction
Order 21 Rule 77 of the Code of Civil Procedure, 1908, governs the
sale of movable property by public auction. According to this rule,
the purchaser is required to pay the auction price either at the time
of sale or as directed by the auctioneer shortly thereafter. If the
purchaser fails to make this payment, the property will be re-sold
immediately. Upon successful payment, the auctioneer must issue a
receipt, confirming that the sale has become absolute. Additionally,
if a co-owner participates in the bidding, their bid is treated as that
of a co-owner, ensuring fair representation in the auction process

Rule 78: Irregularity not to vitiate sale, but any person
injured may sue
Order 21 Rule 78 of the Code of Civil Procedure, 1908, addresses
the issue of irregularities in the sale of movable property during
execution proceedings. Specifically, it states that no irregularity in
the publication or conduct of the sale shall vitiate the sale itself.
However, it provides a significant caveat: any person who is
injured by such irregularity retains the right to sue for damages.
This provision ensures that while procedural missteps do not
invalidate the sale, individuals adversely affected by those
missteps can seek redress through legal action. The rule aims to
balance the need for efficient judicial processes with the
protection of individual rights in cases where improper
procedures may lead to harm or unfairness.

Rule 79: Delivery of movable property, debts and shares
Order 21, Rule 79 of the Code of Civil Procedure (CPC) outlines the procedure for
the delivery of movable property, debts, and shares that have been sold. Where the
sold property is movable and has been seized, it is to be delivered to the purchaser. If
the movable property is in possession of someone other than the judgment debtor, the
delivery to the purchaser is made by notifying the person in possession.
This notice prohibits them from delivering the property to anyone except the
purchaser. In cases where the property sold is a debt not secured by a negotiable
instrument, or is a share in a corporation, the delivery is executed through a written
order from the Court. This order prohibits the creditor from receiving the debt or any
interest and the debtor from making payments to anyone except the purchaser.
The order also prevents the person in whose name the share is standing from
transferring the share or receiving dividends, and it restricts the corporation's officers
from permitting such transfers or payments to anyone but the purchaser.

Rule 80: Transfer of negotiable instruments and shares
Order 21, Rule 80 of the Code of Civil Procedure addresses
the transfer of negotiable instruments and shares during execution
proceedings. This rule stipulates that when a court is executing a
decree that involves negotiable instruments or shares, it may
appoint a person to receive any interest or dividends due on those
instruments or shares until the actual transfer occurs. This
provision ensures that the rights of the decree-holder are
protected by allowing them to benefit from any income generated
by the instruments or shares during the period leading up to their
transfer. This mechanism is crucial for maintaining the financial
interests of the decree-holder while ensuring that the process
adheres to legal protocols regarding ownership and transfer rights

Rule 81: Vesting order in case of other property
Order 21, Rule 81 of the Code of Civil Procedure, 1908,
pertains to the issuance of vesting orders for movable
property not specifically addressed in earlier provisions.
According to this rule, the Court is empowered to issue an
order that vests such movable property in the purchaser or as
directed by the purchaser. This means that upon the Court's
order, ownership of the specified movable property is
transferred accordingly, ensuring that the purchaser receives
clear title to the property without further encumbrances.

SALE OF IMMOVABLE PROPERTY
Rule 82: What courts may order sales
Sales of immovable property in execution of decrees may be
ordered by any court other than a Court of Small Causes.
Rule 83: Postponement of sale to enable judgment-debtor
to raise amount of decree
Order 21, Rule 83 of the Code of Civil Procedure (CPC)
allows a judgment-debtor to apply for a postponement of the
sale of their immovable property if they can convince the
court that they can raise the decree amount through
mortgage, lease, or private sale of the property or any other
of their properties.

The court has the discretion to postpone the sale on terms and for
a period it deems proper, to enable the debtor to raise the
necessary funds. In such cases, the Court grants a certificate to
the judgment-debtor, authorizing them to proceed with the
proposed mortgage, lease, or sale within a specified period,
notwithstanding anything contained in section 64.
Rule 84: Deposit by purchaser and re-sale on default
Order 21 Rule 84 of the Code of Civil Procedure (CPC) outlines
the requirements for purchasers in the auction of immovable
property. Upon being declared the purchaser, an individual must
immediately deposit 25% of the purchase price with the officer
conducting the sale. If this deposit is not made, the property is
subject to immediate resale.

Furthermore, the remaining 75% of the purchase price must be paid
within fifteen days from the auction date. Failure to comply with
this requirement leads to forfeiture of the deposit and mandates a
resale of the property, effectively nullifying the initial sale. The
Supreme Court has emphasized that these provisions are mandatory;
noncompliance results in no valid sale occurring at all, reinforcing
that the court is obligated to resell the property in such cases.
Rule 85: Time for payment in full of purchase-money
Order 21 Rule 85 of the Code of Civil Procedure (CPC) stipulates
that the full amount of the purchase money must be paid by the
purchaser into the court before it closes on the fifteenth day
following the sale of the property. This rule is mandatory, meaning
that failure to comply with this requirement renders the sale null and
void.

Rule 86: Procedure in default of payment
In the context of the Civil Procedure Code, Order 21 Rule
86 outlines the procedure to be followed in case of default of
payment by a purchaser in a sale of immovable property. If the
purchaser fails to make the required payment within the specified
time frame, the court has the authority to forfeit the deposit made
by the purchaser after covering the expenses related to the sale.
Consequently, the property will be re-sold, and the defaulting
purchaser will lose all claims to both the property and any portion
of the proceeds from its subsequent sale. This rule emphasizes the
mandatory nature of timely payment and establishes a clear
consequence for non-compliance, ensuring that the sale process
can proceed without undue delay.

Rule 87: Notification on re-sale
Order 21, Rule 87 of the Code of Civil Procedure, 1908, pertains to
the notification on re-sale of immovable property. This rule mandates
that whenever there is a re-sale due to the default in payment of the
purchase money, a fresh proclamation must be issued. This proclamation
should follow the same procedures and timeframes as those established
for the original sale. The intent behind this rule is to ensure transparency
and provide adequate notice to potential bidders about the re-sale,
thereby safeguarding the interests of all parties involved in the
transaction.
Rule 88: Bid for co-sharer to have preference
Where the property sold is a share of undivided immovable property and
two or more persons, of whom one is a co-sharer, respectively bid the
same sum for such property or for any lot, the bid shall be deemed to be
the co-sharer.

SETTING ASIDE OF SALE (RULE 89-92)
Rules 89-92 deal with setting aside of sale; an application to set aside
sale cannot be made on any other ground not covered by these rules.
The grounds and the persons who may apply for setting aside sale are:
a. On the deposit of the amount specified in the proclamation of sale,
by the judgment-debtor or other interested person, and paying 5%
of the purchase-money to the purchaser (Rule 89).
b. On the ground of material irregularity or fraud in publishing or
conducting the sale; the decree-holder/purchaser/any other
interested person can apply for setting aside, if it is shown that
such irregularity, etc. has substantially injured such a person (Rule
90).

Rule 91 enables the auction-purchaser to apply for setting
aside the sale on the ground that the judgment-debtor had no
saleable interest in the property. This provision is an
exception to the general rule of caveat emptor (let the buyer
beware) and to the principle that a court-sale carries with it
no guarantee that the property sold is the property of the
judgment-debtor.
Rule 92 lays down that no sale of immovable property shall
become absolute until it is confirmed by the court (where no
application to set aside the sale is made or, if made such
application is disallowed). Where such application is allowed
or the deposit required by Rule 89 is made within 60 days
from the date of sale, the sale shall be set aside.

RESISTANCE OF DELIVERY OF POSSESSION TO
DECREE-HOLDER OR PURCHASER (RULE 97-106)
Rule 97: Resistance or obstruction to possession of immovable
property
Order 21 Rule 97 of the Code of Civil Procedure (CPC) addresses
resistance or obstruction to the possession of immovable property
during the execution of a decree. It allows a decree holder, or an
auction purchaser, to apply to the executing court if they face
resistance or obstruction in obtaining possession of the property. The
court then adjudicates the matter obstruct the possession. The
executing court has the power to address claims by all persons resisting
the delivery of possession. The Karnataka High Court has held that
applications under Order 21 Rule 97 can be dismissed if the obstructor
cannot prove their right to resist execution.

Rule 98: Orders after adjudication
Order 21, Rule 98 of the Code of Civil Procedure (CPC) pertains to
orders made by the court after adjudicating claims regarding possession
of property. According to this rule, once the court resolves the questions
referred to in Rule 101, it must either allow the application and direct
that the applicant be put into possession of the property or dismiss the
application. Additionally, the court has the discretion to pass any other
order it deems appropriate based on the circumstances of the case.
Furthermore, if the court finds that any resistance or obstruction to
possession was caused without just cause by the judgment-debtor or
their instigator, it is mandated to direct that the applicant be put into
possession of the property. The orders passed under this rule are treated
as decrees and are subject to appeal, reinforcing their legal significance
in adjudicating disputes related to property possession.

Rule 99: Dispossession by decree-holder or purchaser
Order XXI Rule 99 of the Code of Civil Procedure, 1908
(CPC) addresses the rights of individuals who are
dispossessed of immovable property by a decree holder or a
purchaser during the execution of a decree. Specifically, it
states that if any person other than the judgment debtor is
dispossessed, they may file an application to the court to
contest this dispossession. This provision is particularly
significant for those who are not parties to the original suit,
allowing them to seek redress for their loss of possession.

Rule 100: Order to be passed upon application complaining
of dispossession
Order 21 Rule 100 of the Code of Civil Procedure (CPC)
addresses applications made by individuals who claim to have
been dispossessed of immovable property. Upon receiving such
an application, the court is required to make a determination
regarding the dispossession. Specifically, the court may either
allow the application and order that the applicant be restored to
possession of the property or dismiss the application altogether.
This rule ensures that individuals who believe they have been
wrongfully dispossessed can seek redress through the judicial
system, allowing for a fair assessment of their claims and rights
concerning the property in question.

Rule 101: Questions to be determined
Order 21 Rule 101 empowers the executing court to determine all
questions related to right, title, or interest in the property that
arise during execution proceedings. This rule ensures that such
questions are resolved within the execution process rather than
requiring a separate suit. The court is deemed to have jurisdiction
to decide these issues, regardless of other laws that may suggest
otherwise.
Rule 102: Rules not applicable to transferee pendente lite
This rule allows for the stay of execution if there is a pending suit
concerning the same property. If a party claims a right to
possession that conflicts with the decree being executed, this rule
may apply

Rule 103: Orders to be treated as decrees
Orders made under Rules 98 or 100 are treated as decrees for all
intents and purposes. This means they carry the same force as a formal
decree and are subject to appeal just like any other decree.
Rule 104: Order under rule 101 or rule 103 to be subject to the
result of pending suit
Any order made under Rule 101 or Rule 103 is subject to the outcome
of any pending suit regarding the property. If a party has sought to
establish a right to possession in a separate suit, that suit's outcome
will affect the execution order.
Rule 105: Hearing of application
This rule outlines procedures for restoring execution applications that
have been dismissed due to default by the decree holder. It provides
specific timelines for filing such applications.

Rule 106: Setting aside orders passed ex parte, etc.
Order 21, Rule 106 of the Code of Civil Procedure (CPC) provides a
mechanism for setting aside ex parte orders in execution proceedings. This
rule allows an aggrieved party, against whom an order has been made without
their presence (ex parte), to apply to the court for the order to be set aside.
The applicant must demonstrate sufficient cause for their absence when the
order was made. If the court is satisfied with the explanation, it may set aside
the order and appoint a new date for further hearings.
The application under this rule must be made within thirty days from the date
of the order or from when the applicant became aware of it if proper notice
was not served. Additionally, the court will not entertain such applications
unless notice has been given to the other party involved. In cases where there
is a delay beyond this period, certain amendments allow for the invocation of
Section 5 of the Limitation Act, permitting the court to condone delays if
justified.

IMPORTANT JUDGMENTS
1. Receiver in execution proceedings
B.R. Ray v. Ganesh & Co. [AIR 1971 Cal. 195 (197)]:It was held
that the court may appoint a receiver of property outside the local
limits of its territorial jurisdiction.
2. Period in civil detention (Section 58)
Samiran Sen v. Arpita Sen (AIR 2009 Cal 229): The detention of
a judgment-debtor in civil prison beyond 3 months is illegal. It
amounts to violation of Article 21 of the Constitution. This
particularly so because release from detention from a civil prison
does not amount to a discharge of the debt owed by the debtor
[Section 58(2)].

3. Property liable to attachment and sale in execution of decree
(Section 60)
Radhey Shyam Gupta v. Punjab National Bank, (2008) 8 Supreme 670:
The HC order directing satisfaction of a part of the decree amount from
the FDR of the judgment-debtor was held to be without jurisdiction.
Retiral benefits such as pension and gratuity cannot be attached.
4. Claim cannot be entertained after sale
Southern Steel and Alloys Ltd. v. B.M. Steels, Madras, (1978) 1 MLJ
468: The adjudication referred to under Order 21, Rule 58 not being
summarily heard as by it is the intention of the legislature under Rule 58
that it should be a decision as if rendered in a regular suit which could
ultimately be decided and adjudicated on all questions including questions
relating to right, title or interest in the property attached which either
directly or indirectly arise b/w the parties to the proceedings.

5. Mode of making proclamation
Desh Bandhu v. Anand, (1994) 1 SCC 131: The purpose of issuing
proclamation is two-fold: firstly, it protects the interests of the
intending purchasers by giving them all material information
regarding the property to be sol, and secondly, it protects the interest
of the judgment-debtor by facilitating the fetching of proper market
price for his property and preventing it being knocked down at public
auction for a price much below the market price.
6. Irregularity in mode of attachment
N.K. Laskar v. S.C. Rama, AIR 1971 Cal. 275: When a property was
attached with leave of the court and the judgment-debtor had notice
of the application for sale and contested the same, the irregularity, if
any, in the attachment of the property must be deemed to have been
considered and rejected.

MODES OF EXECUTION CIVIL PROCEDURE CODE.

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