Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.
Execution in case of cross-decrees:
ADVERTISEMENTS:
Cross-decrees are decrees held by the plaintiff and the defendant against each other in different suits so that a decree-holder in one suit is the judgment-debtor in the other. Such decrees are set-off against each other in execution proceedings.
Thus where A holds a decree against B for Rs. 5,000 and B holds a decree against A for Rs. 3,000, both the decrees will be set-off when A and B each applies for execution of his decree to a court which has jurisdiction to execute both the decrees. B, the holder of the decree for the smaller amount, will not be allowed to take out execution of his decree and execution will be allowed of A’s decree to the extent of Rs. 2,000 only.
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Where applications are made to a court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such courts, then
(a) If the two sums are equal, satisfaction shall be entered upon both the decrees; and
ADVERTISEMENTS:
(b) If the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum.
This rule shall not be deemed to apply unless
(i) The decree-holder in one of the suits is the judgment-debtor in the other and each party fills the same character in both suits; and
(ii) The sums due under the decree are definite.
ADVERTISEMENTS:
The above shall, however, apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.
The holder of a decree passed against several persons jointly and severally may treat it as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons. (Order XXI, Rule 18).
Illustrations:
(i) A, B, C, D and E are jointly and severally liable for Rs. 1,000 under a decree obtained by F. A obtains a decree for Rs. 100 against F singly and applies for execution to the court in which the joint decree is being executed. F may treat his joint decree as a cross-decree under this rule.
(ii) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.
(iii) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtains a decree for Rs. 1,000 against B. C cannot treat his decree as a cross-decree under this rule.
(iv) A obtains a decree against B for Rs. 1,000. C, who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000. B cannot treat C’s decree as a cross-decree under this rule.
Essential Conditions:
In order to apply the above rule to cross-decrees it is necessary that the following conditions must be fulfilled:
1. The cross-decrees must be for the payment of two sums of money;
2. The decree must have been obtained in separate suits;
3. Both the decrees must be capable of execution at the same time;
4. The decree-holder in one of the suits in which the decrees have been passed should be the judgment-debtor in the other, and each party fills the same character in both the suits; and
5. Both the decrees must be before the executing court for execution and applications should have been made for execution of both of them.
The provisions relating to cross-decrees for the payment of money also apply to decree for sale in enforcement of a mortgage or charge.
Cross-claims:
Where an application is made to a court for the execution of a decree under which two parties are entitled to recover sums of money from each other then, (a) if the sums are equal, satisfaction for both shall be entered upon the decree; and (b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree. (Order XXI, Rule 19).
Party seeking relief under Rule 19 of Order XXI has to show that he is entitled to recover a sum of money under the very same decree which is sought to be executed by the other side. In a suit two separate decrees were passed.
One was a money decree obtained by the plaintiff against the defendant and another was a final accounts decree passed in favour of the defendant against the plaintiff in defendant’s cross-claim which was analogous to a cross suit.
These were passed at different times. In execution proceedings of final decree, the application of plaintiff under Order XXI, Rule 19 seeking to adjust his own decretal amount is not maintainable.
Under this rule the person having the decree for the smaller sum cannot execute his decree at all and hence no question of limitation can ever arise.
Decree for payment of money:
Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed
(1) By the detention in the civil prison of the judgment-debtor; or
(2) By the attachment and sale of his property; or
(3) By both, (Order XXI, Rule 30).
Decree for specific movable property:
Decree for any specific movable property or for any share in a specific movable property may be executed
(1) By a seizure, if practicable, of the movable or share and by the delivery thereof to the party to whom it has been adjudged, or
(2) By the detention in the civil prison of the judgment-debtor, or
(3) By the attachment of his property, or
(4) By both.
When any attachment of property has remained in force for three months and 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 the amount fixed by the decree or such compensation, in cases where no amount has been fixed by the decree to be paid as an alternative to delivery of movable property, as the court thinks fit. The balance, if any, may be paid to the judgment-debtor on his application.
Where the judgment-debtor has obeyed the decree and paid all costs of executing the same or where, at the end of three months from the date of attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease. (Order XXI, Rule 31).
Decree for specific performance for restitution of conjugal rights, or for an injunction:
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil person, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has 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.
(3) Where any attachment under sub-rule (1) or sub-rule (2) 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 such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
Explanation:
For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.
Illustration:
A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B. A, in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him and by B and directing him to remove the building.
The Court is of opinion that no sum realizable by the state of A’s property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution proceedings. [Order 21, Rule 32],
The perpetual injunction was granted restraining the opening of window in joint wall of 1W width. The appellants constructed new wall of 9″ width in their own land and thereafter opened window in it. The decree cannot be executed against the appellants in view of changed circumstances.
Decree for restitution of conjugal rights:
Where the party against whom a decree for restitution of conjugal rights has been passed has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by the attachment of his property.
Where the 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 the court may award to the decree-holder such compensation as it thinks fit out of the proceeds and pay the balance, if any, to the judgment-debtor on his application.
Where the judgment-debtor has obeyed-the decree and paid all costs of executing the same or if, at the end of six months from the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease. (Order XXI, Rule 32).
Notwithstanding anything said above, where .a decree against a husband for the restitution of conjugal rights has been passed, the court may order that, in the event of the decree not being obeyed within a fixed period, the judgment-debtor shall make to the decree-holder such periodic, 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. Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money. (Order XXI, Rule 33).
Decree for execution of document, or endorsement of negotiable instrument:
Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the court shall, on the decree-holder delivering to it a draft of the document or endorsement in terms of the decree, serve it on the judgment-debtor with a notice to make written objection within a time fixed therein.
On considering the objection, if any, the court may determine the draft. On the decree-holder’s delivering to the court a copy of the draft with the alterations directed by the court incorporated therein, upon the proper stamp paper, the Judge or the officer appointed by him in this behalf shall execute the document or endorse it as under :
“C.D., Judge of the court of…….. (or as the case may be), for A.B., in a suit by E.F. against A.B.”
It shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.
Where the registration of the document is required under any law for the time being in force, the court, or such officer of the court as may be authorised in this behalf by the court, shall cause the document to be registered in accordance with such law.
Where the registration of the document is, however, not so required, but the decree-holder desires it to be registered, the court may make such order as it thinks fit. Where the court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration. (Order XXI, Rule 34).
An appeal lies from an order on an objection to a draft conveyance or endorsement.
Decree for immovable property:
When a decree is for the delivery of any immovable property, possession thereof shall be delivered to the decree-holder, and, if necessary, by removing any person bound by the decree who refuses to vacate the property For putting the decree-holder in
possession of a building or enclosure, the court may, when the person in possession does not afford free access, after giving facility to any woman not appearing in public according to the customs of the country to withdraw, order that any lock or bolt be removed or opened, any door be broken open, or any other necessary act be done. This is termed as delivering actual or khas possession. (Order XXI, Rule 35).
In execution of decree for possession with police help once obstruction is noted by execution court. The warrant for possession with police help cannot be reissued without deciding independent right, title and interest in the decretal property of stranger obstruction in it.
As any other court would amount to by-passing amount to by-passing and circumventing the procedure laid down under Order II, Rule 97 in connection with removal of obstruction of purported stranges to the decree.
The judgment-debtor constructed shops and gave to tenants during the pendency of the suit for declaration of title and vacant. The suit was decreed. The execution court’s order to demolish such construction and deliver vacant possession was not without jurisdiction.
Structure raised during the pendency of the suit can be ordered to be demolished in execution of decree for eviction or possession in exercise of incidental, ancillary or inherent powers of court to deliver possession of property under R. 35 (3) of Order XXI.
Execution proceedings for delivery of vacant possession of land:
Rule 35(3) of Order XXI itself manifests that when a decree for possession of immovable property was granted and, delivery of possession was directed to be done, the court executing the decree is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession.
That power also includes the power to remove any obstruction or super-structure made pendente lite. The exercise of incidental, ancillary or inherent power is consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition.
But when the decree for possession had become final and the judgment-debtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any constructions on the property pending suit, the decree-holder is not bound by any such construction.
The relief of mandatory injunction is, therefore, consequential to or necessary for effectuation of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the court. Otherwise the decree becomes in-executable driving the plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceedings.
It is also not necessary that the tenant should be made party to the suit when the construction was pending suit and the tenants were inducted into possession without leave of the Court. It is settled law that a tenant who claims title, right or interest in the property through the judgment-debtor or under the colour of interest through him, he is bound by the decree and that, therefore, the tenant need not be impleaded as a party defendant to the suit, nor it be an impediment to remove obstruction put up by them to deliver possession to the decree-holder.
What is relevant is only a warning by the bailiff to deliver peaceful possession and if they cause obstruction, the bailiff is entitled to remove the obstruction; cause the construction to be demolished and deliver vacant possession to the decree-holder in terms of the decree.
When in occupancy of tenant:
When the immovable property is in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. The possession thus delivered is called’ symbolic or formal possession. (Order XXI, Rule 36).
The executing court and appellate court by concurrent findings rejected the objections against execution. New tenancy without particulars thereof is not entertainable in revision.
Joint Possession:
Delivery of joint possession of immovable property as opposed to actual possession of immovable property is by the same mode as discussed in the preceding paragraph, i.e., where the immovable property is in the occupancy of tenant. Possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum the substance of the decree. [Order XXI, Rule 35(2)].
Execution of decree against Firm:
Where a decree has been passed against a firm, execution may be granted: (a) against any property of the partnership; (b) against any person who has appeared in his own name or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner; and (c) against any person who has been individually served as a partner with a summons and has failed to appear.
Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than a person referred to above as being a partner in the firm, he may apply to the court, which passed the decree, for leave, and, where the liability is not disputed, such court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.
When such liability has been tried and determined, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree (Order XXI, Rule 50).
The erstwhile partner is liable to pay the tax arrears due from partnership relating to the period when he was partner.
Trial of disputed questions:
Where Letter of Credit was opened by Bank in favour of party, there were interim orders of Court for keeping letter of credit alive but the bank seriously disputed its liability under letter of credit to pay. Liability of bank was not adjudicated upon by the Court.
Decree passed in terms of Arbitral Award and bank was called upon to make payment of amount under letters of credit. Held, that as Bank was not party to Arbitral Award, its liability to make payment would be akin to principles laid down for garnishee. Therefore, order directing banker to make payment of amount was liable to be set aside.