All About Order Xxi Of The Civil Procedure Code, 1908

Coverage of this Article

Key Takeaways

-The Civil Procedure Code of 1908 is an important statute in India that lays down the law of civil procedure in the country.

Introduction

-The Civil Procedure Code of 1908 is an essential legislation that governs civil proceedings in India

Order XXI of The CPC

-Order 21 of the Code of Civil Procedure, 1908, provides for the procedure to be followed when a decree is passed by a court.

Key Provisions of Order XXI

-Decree Holder and Judgment Debto

Procedure Under Order 21

-The decree-holder initiates the execution process by filing an execution application before the court that passed the decree. The application must contain relevant details of the decree, the judgment debtor, and the mode of execution sought.

Judicial Pronouncements

• Narsidas Nathubhai Vohra v. Manharsing Agarsing Thakor [(1931) 33 BOMLR 370]
• Shaukat Hussain @ Ali Akram and others Vs. Smt. Bhuneshwari Devi (dead) by L.R. & others [1973 AIR (SC) 528]
• Gurpreet Singh Vs. Union of India [2008 (2) RCR (Civil) 207]
• N. Chandra Chems vs Varma Mukherji Pvt. Ltd. And Ors [2007 (6) BomCR 606]

Conclusion

KEY TAKEAWAYS

• The Civil Procedure Code of 1908 is an important statute in India that lays down the law of civil procedure in the country.
• Order 21 of the Civil Procedure Code, 1908 deals with the process of execution of decrees. It provides the procedure for the execution of decrees, such as the attachment of property, sale of property, arrest, and detention of a judgment debtor, appointment of a receiver, etc.
• Having a thorough understanding of the key provisions and procedures outlined in Order 21, parties involved in civil litigation can navigate the execution process efficiently and effectively.

INTRODUCTION

The Civil Procedure Code of 1908 is an essential legislation that governs civil proceedings in India. The code was originally enacted in 1908 and has since been amended several times. The CPC outlines the rules of civil procedure, the general principles of law to be applied in civil cases, the procedures for enforcing judgments, the remedies available to parties who have suffered losses due to civil wrongs, etc. The CPC applies to all civil suits in India, except those in which the parties agree to be bound by other laws. It is supplemented by various other laws, such as the Specific Relief Act, the Indian Registration Act, and the Transfer of Property Act. Among its various provisions, Order 21 holds substantial significance as it deals with the execution of decrees and orders passed by civil courts. Order 21 provides a framework for enforcing the rights and remedies granted by the court to the successful party in a civil suit. This article aims to provide a comprehensive guide to Order 21 of the Civil Procedure Code, 1908, shedding light on its key aspects and procedures.

ORDER XXI OF THE CPC

Order 21 of the Code of Civil Procedure, 1908, provides for the procedure to be followed when a decree is passed by a court. This Order states that the decree must be signed by the judge, and then the decree must be entered in the register of decrees. It further states that the decree should be dated and authenticated by the judge's signature. The decree is to be entered in the register of decrees in chronological order and authenticated by the judge's signature or the court's seal. The decree shall be kept in the register of decrees and open to inspection by the parties to the suit or their representatives. The order also states that the court shall issue a certified copy of the decree to the parties or their representatives. The signed decree shall be deemed authentic and binding on the parties to the suit.

KEY PROVISIONS OF ORDER XXI

Decree Holder and Judgment Debtor:

Order 21 distinguishes between two parties involved in the execution process: the decree holder (the party in whose favor the decree or order is passed) and the judgment debtor (the party against whom the decree or order is passed). The decree-holder seeks to execute the decree, while the judgment debtor is obligated to comply with the terms of the decree.

Modes of execution:

Order 21 provides various modes of execution to enforce a decree. These modes include attachment and sale of property, arrest and detention, appointment of a receiver, and delivery of possession. These modes enable the decree-holder to recover the amount due to them or obtain relief granted by the court.

Attachment and Sale of Property:

The most common method of execution is the attachment and sale of the judgment debtor's property. Under Order 21, the court can attach the judgment debtor's property to secure the decree amount. The attached property can subsequently be sold through a public auction, and the proceeds are used to satisfy the decree.

Arrest and detention:

In certain cases, where a judgment debtor fails to comply with the decree despite the attachment of property, the court may order their arrest and detention. However, arrest and detention are generally considered a last resort when other methods of execution have failed.

Appointment of a Receiver:

Order 21 empowers the court to appoint a receiver to manage and administer the property during the pendency of execution proceedings. The receiver acts as an agent of the court and ensures the preservation and proper utilization of the property until execution is complete.

Delivery of possession:

Where the decree involves the delivery of possession of immovable property, Order 21 provides a mechanism to enforce such delivery. The court may issue a warrant for the delivery of possession, and the decree-holder can seek assistance from the court or the relevant authorities to obtain physical possession.

PROCEDURES UNDER ORDER 21

Filing an Execution Application:

The decree-holder initiates the execution process by filing an execution application before the court that passed the decree. The application must contain relevant details of the decree, the judgment debtor, and the mode of execution sought.

Notice to Judgment Debtor:

Upon receiving the execution application, the court issues a notice to the judgment debtor. This notice informs them of the application and offers them an opportunity to contest or satisfy the decree. If the judgment debtor fails to respond or comply, the execution process continues.

Execution by the Court:

The court, after examining the execution application and any objections raised by the judgment debtor, can proceed with execution. The court has the authority to issue warrants, attach property, order arrest, or take any other necessary measures for the decree's execution.

Third-party claims:

Order 21 also addresses situations where third parties claim an interest in the property attached or sought to be sold. The court allows such claims to be adjudicated and decides the validity of the claims before proceeding with the execution.

JUDICIAL PRONOUNCEMENTS

• Narsidas Nathubhai Vohra v. Manharsing Agarsing Thakor [(1931) 33 BOMLR 370]

The Bombay High Court made the following observation in this case, "If the execution of a decree is transferred for execution to another court and a suit is brought in the court where the execution proceedings were first commenced against the holder of a decree of that court, the court in which the suit is brought would be entitled to pass an Order under Order XXI, rule 29, despite the fact that the execution proceedings may be pending before another Judge to whom the Court may have transferred them.."

• Shaukat Hussain @ Ali Akram and others Vs. Smt. Bhuneshwari Devi (dead) by L.R. & others [1973 AIR (SC) 528]

The Supreme Court of India in the present case held that using section 47 of the Civil Procedure Code, a judgment-debtor may request that a sale in execution of a decree be set aside. In addition, he may request that the sale be set aside due to material irregularities or fraud that occurred in publishing or conducting the sale under special circumstances attracting the provisions of Order XXI rule 90, provided that he proves that substantial harm has been sustained.

• Gurpreet Singh Vs. Union of India [2008 (2) RCR (Civil) 207]

In this case, the property had been sold in execution of a mortgage decree and the question was about the appropriation of the sale proceeds. According to the Supreme Court of India, Sections 28 and 34 of the Code of Civil Procedure exclude the normal rule of appropriation contained in Order XXI Rule 1 of the Code of Civil Procedure relating to the execution of orders for the recovery of money. Under the Act, the principles of Order XXI Rule 1 cannot be extended to the execution of award decrees.

• N. Chandra Chems vs Varma Mukherji Pvt. Ltd. And Ors [2007 (6) BomCR 606]

The appellant in the case sought direction from the respondent under Order 21, Rule 41(2) of the Civil Procedure Code. However the same was rejected by an impugned order which was challenged by the appellant in the Bombay High Court. The learned advocate for the appellants contended that the Civil Procedure Code nowhere requires that to seek information regarding the properties of the judgment debtor, there must be an application under Order 21, Rule 41(2) of the Civil Procedure Code on record. As opposed to this, such information is necessary for the decree-holder to file an application under Rule 11(2) and for attaching the property of the judgment debtor to recover the amount due.

CONCLUSION

Order 21 of the Civil Procedure Code of 1908 provides the procedure for the execution of decrees. It plays a crucial role in facilitating the enforcement of decrees and orders passed by civil courts in India. It provides a clear framework for executing decrees, ensuring that the court's rights and remedies are upheld. By understanding the key provisions and procedures outlined in Order 21, parties involved in civil litigation can navigate the execution process efficiently and effectively. Both decree holders and judgment debtors need to familiarize themselves with the provisions of Order 21 to safeguard their respective interests and ensure fair and just execution proceedings.