No payment made even after money decree.
YOGESH KUMAR
(Querist) 08 May 2013
This query is : Resolved
1. A MONEY DECREE HAS BEEN PASSED IN FAVOUR OF THE PLAINTIFF. THE DEFENDANT DOESN'T PAY ANY AMOUNT AND FILES AN APPEAL IN THE COURT OF HON'BLE ADJ. ON FIRST HEARING, HON'BLE ADJ ASKS THE APPELLANT TO DEPOSIT THE DECREE AMOUNT, I.E. PRINCIPAL + UPTODATE INTEREST IN THE TREASURY WITHIN 15 DAYS.
THE APPELLANT DOES NOT DEPOSIT THE FULL AMOUNT AS STATED ABOVE, BUT MOVES AN APPLICATION BEFORE THE NEXT DATE OF HEARING STATING THAT HE HAD DEPOSITED ROUGHLY 50% OF THE AMOUNT ABOUT EIGHT YEARS BACK DURING THE COURSE OF LITIGATION.
MY QUERY IS AS FOLLOWS:
1. WILL THE HON'BLE ADJ DISMISS HIS APPEAL FOR NOT COMPLYING WITH ORDER 41 RULE 1(3) CPC, OR WILL HE BE ALLOWED TO PURSUE HIS APPEAL?
2. ON WHAT BASIS THE DEFENDANT CAN GET THE APPEAL DISMISSED AND GET THE DECREE EXECUTED AT THE EARLIEST?
PLS ELABORATE THE COMPLETE PROCEDURE AND PROFORMA OF THE DOCUMENTS TO BE PREPARED FOR FILING BEFORE THE COURT TO GET THE DECREE EXECUTED. THANKS IN ADVANCE.
Advocate M.Bhadra
(Expert) 08 May 2013
Payment of 50% of decreed amount allow to the judgement debtor,it own discretion of ld.court.
Read a judgement as follows:-
Sastry v. Bank of India, 1978 (2) APLJ 217, in which order
21 Rule 37 has been elaborately dealt with as under :
1.The court has power conferred upon it under Section 51 of the Code to order the execution of a decree for the payment of money by arrest and detention of the judgment debtor in prison on the application of a decree holder.
2. The condition precedent for the exercise of that power is that it should be prescribed by the court's affording an opportunity to the judgment debtor of showing cause as to why he should not be committed to civil prison.
3. The court should be satisfied, for reasons to be recorded in writing that the judgment debtor has or has had, since the date of the decree, the means to pay the amount of the decree or some substantial part thereof an that the judgment debtor has refused or neglected to pay the same.
4. The court shall, instead of issuing a warrant for the arrest of the judgment debtor, shall have to issue notice calling upon the judgment debtor to appear before the court and show cause why he should not be committed to the civil prison.
5. Where no such appearance is made in-obedience to the notice and if the decree holder so requires, it is rendered obligatory on the part of the court to issue a warrant for the arrest of the judgment debtor."
Raj Kumar Makkad
(Expert) 08 May 2013
The respondent should ensure the compliance of the order of the appellate court in letter and spirit by agitating against the application moved by appellant and if appeal gets decided at the earliest then only the respondent/plaintiff can get the desired relief.
YOGESH KUMAR
(Querist) 09 May 2013
SHOULD THE RESPONDENT MOVE APPLICATION UNDER ORDER 41, RULE 1(3), READ WITH SECTION 151 C.P.C., OR UNDER ORDER 21, RULE 37, SEPARATELY, OR BOTH THE SECTIONS BE COVERED UNDER SINGLE APPLICATION?
adv. rajeev ( rajoo )
(Expert) 09 May 2013
He has to comply the court order, otherwise it will be dismissed for not complying the oourt order.
