Mode of execution: Attachment of property

Chapter - I

1. INTRODUCTION:

Law has wider scope in all the filed, for easier understanding it has been enveloped itself into two blocks i.e. Substantive law and Procedural law. The name itself denotes its nature and functions are distinct from each other but both act inter-dependently. The link between them is that ‘the procedural law which puts the life into substantive law’ by providing working requirements of the remedies, which envisages the well-known maxim “Ubi jus ibi remedium”[2] in force.

The Code of Civil Procedure is also a product of procedural law which is intended to regulate the procedures followed by the Civil Court. The very main objective of CPC is to consolidate and amend the law relating to the procedures in the Courts of Civil Judicature. To consolidate means to collect all the laws relating to the particular subject and to bring it down to the date in order that it may form a useful code which is applicable to the circumstances existing at the time when the consolidating the Act enacted. The Code is not too technical it is literally constructed and interpreted so that it leaves a room for reasonable justification. This Code is not exhaustive, the rules of procedure are intended to be the handmaid to the administration of justice and they must, therefore be constructed liberally and in such manner as to render the enforcement of substantive rights effective. As the general principle of law counts on the principle of interpretation of statutes of the procedural law are always retrospective in nature unless expressly provided by law itself. The reason is that no one can have a vested right in forms of procedure. But the Code of Civil Procedure is not retrospective in operation.

In this project I am going to deal with the post-stage of delivered judgment i.e. mode of execution of decree by attachment of property. The substantive part of it is covered under Sec.60 - 62 and the procedural part of it is covered under Order XXI Rule 43 – 54.

Chapter - II

2. MODE OF EXECUTION:

The civil proceeding commences at Trial Court by filing of plaint or petition according to the statutory requirement. After passing through the process of Trial the end product of Plaint is Judgment and decree. After delivery of Judgment the Judge of the Trial Court become functus officio in that case. Where Decree is the formal expression of the Court, which is the operative portion of the Judgment. The stage where the decree becomes operative is the execution stage.

2.1 Meaning of Execution:

The term ‘execution’ has not been defined in the Code. The expression “execution” signifies the enforcement or giving effect to a judgment or order of a Court of Justice. In other words, execution is the enforcement of decrees and order by the process of the Court, so as to enable the decree-holder to realize the fruit of the decree. The Execution is complete when the judgment - creditor or decree-holder gets money or other things awarded to him by the judgment, decree or order. The Supreme Court in Ghan Shyam Das vs. Anant Kumar Sinha[3] held that the Code of Civil Procedure contains elaborate and exhaustive provision relating to the execution of decree. The numerous rules and Order 21 of the Code takes care of different situation providing effective remedies not only to the judgment-debtor and decree-holder but also to claimant objectors, as the case may be.

2.2 Enforcement of Execution:

The Code lays down various modes of execution. After the decree-holder files an application for execution of a decree, the executing Court can enforce execution. There are various limitation and conditions prescribed under different provisions for various modes of execution[4]. A Decree may be enforced by delivery of any property specified in the decree, by attachment and sale or by sale without attachment of any property, or by arrest and detention in civil prison of the judgment-debtor or by appointing a receiver, or by effecting partition, or in such other manner as the nature of the relief may require [5].

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[1] S. Rajalakshmi, IV yr. B.A.LL.B(HONS), Tamil Nadu National Law School, Trichy.
[2] Halsbury’s Law of England (4th Edn.) Vol. 37, at p.11 para 3.
[3]Ghan Shyam Das vs. Anant Kumar Sinha, AIR 1991 SC 2251.
[4] Section 51 of Civil Procedure Code, 1908.
[5] Order XXI, See also Section 51 of Civil Procedure Code, 1908.