ashok kumar (Social Worker) 18 September 2014

Decree execution-without proper notice

Decree Execution-Without proper Notice

In 2003, Decree granted ex-parte in Favour of the Bank for sale of the property mortgaged. The Bank did nothing for execution till 2013. In 2013 the Judgment Debtor’s LR (Son) approached the Bank with a written offer of the settlement. The Bank did not respond but in 2014 the Bank filed an execution in January. The Bank sent notices at the old address and the notices were returned unserved consequent to which, the Bank got the Notices published in the local Newspaper.

The LR stays in a city other than the City where the proceedings took place and where the execution is now filed and the Bank knew the new address of the LR (since he had approached the Bank with an offer to settle in writing and that letter contains LR’s new address). However the Bank deliberately dispatched the notice at old address. Meanwhile the LR came to know of the execution proceedings

What should be the correct legal recourse by the LR?

Can the execution proceedings be stayed at this stage?

What would have been the remedy if the execution had been completed and property been sold by the Bank?

Pl provide a detailed reply alongwith the relevant provisions of the CPC

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2 Replies

adv.raghavan (Advocate,9444674980) 18 September 2014

1,LR should get impleaded,2,Execution proceedings cannot be stayed at this stage, it can be deferred for some time, till LR gets impleaded, 3, Bank cannot off load the property without impleading LR in execution proceedings, having sufficient knowledge on death of judgement debtor. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code or Civil Procedure.1