Endorsement on process: O21 R25

Code of Civil Procedure

 

25. Endorsement on process.—(1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in, which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason of the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the Court.

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court shall examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.

 

Code of Civil Procedure

Explanation: 

Attention is invited to the provisions of Order XXI, Rules 24 and 25, regarding processes for execution.

Rule 24 requires that in every case a day shall be specified on or before which the process is to be executed. Rule 25 makes it incumbent on the Court to examine the officer entrusted with the execution, when the process is not duly executed, to satisfy itself as regards the reasons for its non-execution and to record the result of its inquiry. If the Courts make careful inquiry in such cases and do not blindly accept the reports on the processes, the percentage of infructuous applications will appreciably diminish.

Process for execution: O21 R24

 

Code of Civil Procedure

 

24. Process for execution.—(1) When the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

(2) Every such process shall bear date the day on which it is issued, and shall be signed by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.

¹[(3) In every such process, a day shall be specified on or before which it shall be executed and a day shall also be specified on or before which it shall be returned to the Court, but no process shall be deemed to be void if no day for its return is specified therein.]

Note: 1. Subs. by Act 104 of 1976, s. 72, for sub-rule (3) (w.e.f. 1-2-1977).

 

Code of Civil Procedure

Explanation: 

Attention is invited to the provisions of Order XXI, Rules 24 and 25, regarding processes for execution.

Rule 24 requires that in every case a day shall be specified on or before which the process is to be executed. Rule 25 makes it incumbent on the Court to examine the officer entrusted with the execution, when the process is not duly executed, to satisfy itself as regards the reasons for its non-execution and to record the result of its inquiry. If the Courts make careful inquiry in such cases and do not blindly accept the reports on the processes, the percentage of infructuous applications will appreciably diminish.

Notice to show cause against execution in certain cases: O21 R22

 

Code of Civil Procedure

 

22. Notice to show cause against execution in certain cases.—(1) Where an application for execution is made—

(a) more than ¹[two years] after the date of the decree, or

(b) against the legal representative of a party to the decree ¹[or where an application is made for execution of a decree filed under the provisions of section 44A], ³[or]

⁴[(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent,] the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than ⁵[two years] having elapsed between the date of the decree and the application for execution if the application is made within ⁵[two years] from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

Note: 1. Subs. by Act 104 of 1976, s. 72, for “one year” (w.e.f. 1-2-1977).

2. Ins. by Act 8 of 1937, s. 3.

3. Ins. by Act 104 of 1976, s. 72 (w.e.f. 1-2-1977).

4. Ins. by Act 104 of 1976, s. 72 (w.e.f. 1-2-1977).

5. Subs. by s. 72, ibid., for “one year” (w.e.f. 1-2-1977).

 

Code of Civil Procedure

Explanation:

When an application is made more than two years after the date of decree or against the legal representatives of a party to the decree, the Court must first issue a notice to the person against whom execution is applied for requiring him to show cause why the decree should not be executed against him, unless the case falls within the proviso to sub-rule 1 of Rule 22 of Order XXI, or the Court dispenses with the notice under sub-rule (2) of the same Rule in which latter case the failure to record any reasons is now deemed to be only an irregularity not amounting to a defect in jurisdiction (vide the rule as amended by the Punjab High Court).

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.