In case a decree for recovery of money is passed against a Person, Court may execute such decree:
(a) by his detention in civil prison; or
(b) by attachment and sale of his property
(c) or by both ways
If the decree is for a specific movable property, it may be executed by:
(a) the seizure of the movable property and by its delivery to the party held entitled to the same;
(b) detention of the judgment debtor in civil prison; or
(c) Attachment of property of judgment debtor, or by both
Where the judgment debtor fails to comply with the decree within three months, while his property has remained attached, decree-holder may apply for sale of the property. Court then orders sale of such property of the judgment debtor. On sale of this property, Court is to award to the decree holder any amount as ordered in the decree as an alternative to the delivery of movable property. In case no such amount has been ordered to be paid, Executing Court may order for payment of compensation and for payment of balance to the Judgment debtor on his application.
It may be mentioned here that if decree holder fails to apply for sale of the attached property of the judgment debtor, court would release the same from attachment. Property is also to be released from attachment when the judgment debtor obeys the decree.
Where the judgment debtor, despite opportunity, fails to obey the decree for specific performance, court is empowered to get the same executed by:
(a) detention of judgment debtor;
(b) attachment of property; or
(c) both modes i.e. detention and attachment
In case one has a decree of restitution of conjugal rights in his or her favour, but the judgment debtor fails to comply with the same, in such a situation, the decree holder is entitled to seek execution of the decree by attachment of property of the judgment debtor.
In case one has a decree of restitution of conjugal rights in his or her favour, but the judgment debtor fails to comply with the same, in such situation, the decree holder is entitled to seek execution of the decree by attachment of property of the judgment debtor.
It is important to note that in a suit for restitution of conjugal rights against a husband, at the time of passing of such a decree or at any time subsequently, Court may order execution of such a decree in the manner as:
That in the event of decree not being obeyed within the prescribed period by the Court, the judgment debtor shall make to the decree holder such periodical 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.
However, Court may from time to time vary or modify any order made under sub-rule (2) for periodical payment of money, either by altering the time of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid and again revive the same, either wholly or in part as it may think just.
Any such money ordered to be so paid is recoverable as if it were payable under a decree for payment of money i.e., it can be recovered by detention in civil prison of the judgment debtor, or by attachment and sale of his property, or by both modes. Order XXI, Rule 33.
Where the judgment debtor fails to comply with such a decree within six months, while his property has remained attached, decree holder may apply for sale of the property. Court would then order for sale of such property of the judgment debtor. On sale of this property, court is to award to the decree holder compensation and for payment of balance to the judgment debtor on his application. Property is also to be released from attachment when the judgment debtor obeys the decree.
Execution of Decree of Specific Performance of Contract or for injunction by getting the Requisite act done by the Decree holder or some other person.
It is significant to note that there is other mode of execution of decree of specific performance of contract or injunction. When judgment debtor fails to obey such a decree, 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. IN such a situation, cost for getting such an act done is to be borne by the judgment debtor. Similarly, in case of prohibitory as well as mandatory injunction, if the judgment debtor fails to obey the decree, Court may appoint anyone for getting the needful done for compliance with the decree.
Where a decree is for the delivery of any immovable property like building, possession of the immovable property is required to be delivered to the decree holder, decree holder may appoint any person to receive on his behalf. Where possession of any building is to be delivered and the person in possession bound by the decree, is not affording fee access, Court may give reasonable warning to the person to withdraw, remove or open any lock of bolt or break open any door or do any other act to put the decree holder in possession of the property.
There may be a case where an application is for execution of decree for payment of money by arrest and detention in civil prison of a judgment debtor, who is liable to be arrested. In such situation the court is to issue a notice calling upon the judgment debtor to appear and show cause why he should not be committed to civil prison. Where the judgment debtor fails to appear before the court, warrant of arrest has to be issued against the judgment debtor.
Where the judgment debtor appears on service of the notice under rule 37 or is brought before the Court after arrest, Court shall proceed to hear the decree holder and take all such evidence in support of his application for execution. Therefore the judgment debtor shall get opportunity to show cause as to why he should not be committed to civil prison. Pending enquiry Court may order detention of the judgment debtor in custody or for his release on furnishing security for his appearance as and when required. He may be rearrested.
On completion of enquiry the court may order for detention of the judgment debtor in civil prison. If the court does not find any ground for an order of detention, court shall disallow the application of the judgment debtor and order for his release, if he is in custody.
It is not trustworthy that before a judgment debtor is got arrested in execution of warrant for his detention in civil prison, decree holder is required to deposit court subsistence allowance. Where the judgment debtor is sent to civil prison in execution of a decree, court is to fix for his subsistence such monthly allowance as he may be entitled to according to scales fixed under section 57. Where there is no scale fixed, decree holder is to deposit such amount as the court considers sufficient with reference to the class to which he belongs. As per Order XXI, rules 39-40 of CPC such amount is required to be deposited in advance before the first day of each month.
Judgment debtor arrested and sent to civil prison can be released before the expiration of the period of detention.
(a) when decree is fully satisfied
(b) on payment of the amount mentioned in the warrant
(c) at the request of the decree holder
(d) When subsistence allowance is not deposited by the decree holder.
(e) by State Government on the ground of existence of any infectious or contagious disease, or
(f) by the committing court or any court to which that court is subordinate, on the ground of his suffering from any illness.
A judgment debtor released from detention under section 58 does not stand discharged form debt, merely because of his release from detention. But he cannot be re-arrested under the decree in execution of which he was detained in civil prison.
A judgment debtor released under section 59 i.e. on the ground of illness may be rearrested, but the period of his detention in civil prison cannot exceed the aggregate prescribed by section 58.
Attachment of Property
In execution of a decree, following property is liable to attachment and sale:
(a) lands, houses or other buildings;
(b) goods, money, bank notes, cheques, bills of exchange, hundies, promissory notes, Government securities, bonds or other securities for money;
(c) debts, shares in a corporation
(d) save as otherwise provided, all other saleable property, movable or immovable of the judgment debtor.
(e) the property over which or the profits of which, judgment debtor has a disposing power which he may exercise for his own benefit. Whether the same be held in the name of the judgment debtor or by another person in trust for him or his behalf.