Application for execution by transferee of decree: O21 R16

 Code of Civil Procedure

 

16. Application for execution by transferee of decree.—Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:

Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution:

Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.

¹[Explanation. —Nothing in this rule shall affect the provisions of Section 146, and a transferee of rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.]

Note: 1. The Explanation ins. by Act 104 of 1976, s. 72 (w.e.f. 1-2-1977).

 

 

Code of Civil Procedure

 

Explanation:

When an application for the execution of a decree is made, under the provisions of Order XXI, Rule 16, of the Code of Civil Procedure, by a person claiming to be entitled to the benefit of the decree in consequence of a transfer of the same to him from the original decree-holder by an assignment in writing, the Court must cause notice of the application to be given to the transferor, and it cannot grant the application unless it is satisfied after the transferor has had an opportunity of being heard that the transfer has in fact been effected.

In cases in which the Court grants the application, it should record its reasons for so doing and make an order that thenceforward the name of the applicant shall stand on the record as decree-holder instead of that of the original decree-holder.

Application for execution by joint decree-holder: O21 R15

 

Code of Civil Procedure

 

15. Application for execution by Joint decree-holders.—(1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application.

 

Code of Civil Procedure

Explanation:

When an application is made to judicial officer, under Order XXI, Rule 15, of the Code of Civil Procedure, for the execution of the whole decree by one or more persons, not being all the persons in whose favour the decree appears to be, he should cause notice thereof to be given to the remaining decree-holders or their representatives, and he ought not to grant the application unless, after all these parties have had an opportunity of being heard, he is satisfied that there is good reason for the application.

Where the decree is severally in favour of more persons than one, specifying what each is entitled to there may be applications for partial execution. But where the decree is jointly in favour of more persons than one, the application must be for the execution of the entire decree, so far as it remains unexecuted or unsatisfied; and if the application is for execution of a fraction or a proportionate part of the decree only, it should be refused.

Procedure on receiving application for execution of decree: O21 R17

Code of Civil Procedure

 

17. Procedure on receiving application for execution of decree.—(1) On receiving an application for the execution of a decree as provided by Rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, ¹[the Court shall allow] the defect to be remedied then and there or within a time to be fixed by it.

²(1A) If the defect is not so remedied, the Court shall, reject the application:

Provided that where, in the opinion of the Court, there is some inaccuracy as to the amount referred to in clauses (g) and (h) of sub-rule (2) of rule 11, the Court shall, instead of rejecting the application, decide provisionally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for the amount so provisionally decided.]

(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

(3) Every amendment made under this rule shall be signed or initialled by the Judge.

(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application:

Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.

Note: 1. Subs. by s. 72, ibid., for certain words (w.e.f. 1-2-1977).

2. Ins. by s. 72, ibid. (w.e.f. 1-2-1977).

 

Code of Civil Procedure

 

Explanation:

When the application for execution is in order, or has been amended under Order XXI, Rule 17, of the Code of Civil Procedure, 1908, and is within time, the Court shall proceed as directed in Order XXI, Rule 17 (4) and shall cause the application to be entered in the proper register. A copy of the decree need not be filed when execution is taken out in the Court by which the decree was passed. If in any case it is not possible to verify the correctness of the application from the Court register, the original decree should be sent for and examined by the court.

It should be noted that according to Order XXI, Rule 17(1) Civil Procedure Code, the Court can either reject the application if it is not in order or allow the defect to be remedied. The Punjab High Court has amended this rule so as to make it compulsory for the Court to fix a time within which the defect shall be remedied.

Whenever, on an application for the execution of a decree, or whenever, in the course of execution proceedings, it is necessary to ascertain the amount of money which is or which remains due under the decree, the judicial officer should form his own conclusion on the matter there from. He should not rely on mere kaifyats or office notes made by ministerial officers.

Power to require certified extract from Collector’s register in certain cases: O21 R14

Code of Civil Procedure

 

14. Power to require certified extract from Collector's register in certain cases.—Where an application is made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing any transferable interest in, the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.

 

Code of Civil Procedure

Explanation:

An application for execution must be in writing except when an oral application is made under Order XXI, Rule 11 (i). Upon an application for execution being filed, the Court shall scrutinize it to see that all the requirements of Order XXI, Rules/11(2),12, 13 and 14 of the Code of Civil Procedure, 1908, have been duly complied with. The application should state distinctly the mode in which the assistance of the Court is sought and the proceedings should be confined to that mode, unless any amendment has been allowed. When an application is for the attachment of immovable property, special care shall be taken that the specification and verification required by Order XXI, Rule 13, of the Code have been furnished. The Court may also require the applicant to produce the authenticated extract mentioned in Order XXI, Rule 14, when the property is land registered in the Collector's office.

Application for attachment of immovable property to contain certain particulars: O21 R13

Code of Civil Procedure

 

13. Application for attachment of immovable property to contain certain particulars.—Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot—

(a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and

(b) a specification of the judgment-debtor's share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

 

Code of Civil Procedure

Explanation:

An application for execution must be in writing except when an oral application is made under Order XXI, Rule 11 (i). Upon an application for execution being filed, the Court shall scrutinize it to see that all the requirements of Order XXI, Rules/11(2),12, 13 and 14 of the Code of Civil Procedure, 1908, have been duly complied with. The application should state distinctly the mode in which the assistance of the Court is sought and the proceedings should be confined to that mode, unless any amendment has been allowed. When an application is for the attachment of immovable property, special care shall be taken that the specification and verification required by Order XXI, Rule 13, of the Code have been furnished. The Court may also require the applicant to produce the authenticated extract mentioned in Order XXI, Rule 14, when the property is land registered in the Collector's office.

Application for attachment of movable property not in judgment-debtor’s possession: O21 R12

Code of Civil Procedure

 

12. Application for attachment of movable property not in judgment-debtor's possession.—Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.

 

Code of Civil Procedure

Explanation:

An application for execution must be in writing except when an oral application is made under Order XXI, Rule 11 (i). Upon an application for execution being filed, the Court shall scrutinize it to see that all the requirements of Order XXI, Rules/11(2),12, 13 and 14 of the Code of Civil Procedure, 1908, have been duly complied with. The application should state distinctly the mode in which the assistance of the Court is sought and the proceedings should be confined to that mode, unless any amendment has been allowed. When an application is for the attachment of immovable property, special care shall be taken that the specification and verification required by Order XXI, Rule 13, of the Code have been furnished. The Court may also require the applicant to produce the authenticated extract mentioned in Order XXI, Rule 14, when the property is land registered in the Collector's office.

Oral application and Written application: O21 R11

 

Code of Civil Procedure

 

11. Oral application.—(1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court.

(2) Written application.—Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely :—

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) 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;

(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

(g) the amount with, interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;

(h) the amount of the costs (if any) awarded;

(i) the name of the person against whom execution of the decree is sought; and

(j) the mode in which the assistance of the Court is required whether,—

(i) by the delivery of any property specifically decreed;

¹[(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;]

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) otherwise, as the nature of the relief granted may require.

(3) The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.

Note: 1. Subs. by Act 104 of 1976, s. 72, for sub-clause, (ii) (w.e.f. 1-2-1977).

 

Code of Civil Procedure

Explanation:

An application for execution must be in writing except when an oral application is made under Order XXI, Rule 11 (i). Upon an application for execution being filed, the Court shall scrutinize it to see that all the requirements of Order XXI, Rules/11(2),12, 13 and 14 of the Code of Civil Procedure, 1908, have been duly complied with. The application should state distinctly the mode in which the assistance of the Court is sought and the proceedings should be confined to that mode, unless any amendment has been allowed. When an application is for the attachment of immovable property, special care shall be taken that the specification and verification required by Order XXI, Rule 13, of the Code have been furnished. The Court may also require the applicant to produce the authenticated extract mentioned in Order XXI, Rule 14, when the property is land registered in the Collector's office.