Free Judiciary Notes · CPC Notes
CPC S.36-54
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36. APPLICATION TO ORDERS
The provisions of this Code relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment an order)
37. DEFINITION OF COURT WHICH PASSED A DECREE.
1. The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include, -
a. Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
b. where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
EXPLANATION
The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.
The expression 'Court which passed a decree' is defined tinder which section Civil Procedure Code
a. 2(2)
b. 2(3)
c. 37
d. 38
Ans. (c)
38. COURT BY WHICH DECREE MAY BE EXECUTED.
A decree may be executed either by the court which passed it, or by the court to which it is sent for execution.
A decree may be executed under CPC by:
a. Collector
b. Sub-Collector
c. Tehsildar
d. The Court which passed the decree
Ans. (d)
A decree may be executed under Section 38 of CPC by which of the following Courts?
a. High Court
b. District Court
c. Either by the Court which passed it or by the Court to which it is sent for execution
d. All of the above
Ans. (c)
Court not competent to execute the decree:'—
a. Court which has passed the decree.
b. Court to which it is sent for execution
c. Both (a) and (b)
d. Court of collector
Ans. (d)
During proceeding for execution of a decree, if. a question arises as to whether any person is or is not the representative of a party, such question shall be determined by
a. The court which passed the decree
b. The court executing the decree
c. The Appellate Court
d. A separate suit
Ans. (b)
Temporary injunction may be granted:
a. To restrain any election
b. To restrain dispossession from property
c. To restrain any intended disciplinary action against public servant
d. In all the above circumstances
Ans. (b)
39. TRANSFER OF DECREE
1. The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction, -
a. if the person against whom the decree is passed (judgment debtor) actually, and voluntarily resides or carries on business, or personally, works for gain, within the local limits of the jurisdiction of such other Court, or
b. if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
c. if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
d. if the Court which passed the decree consider for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
2. The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
3. For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.
4. Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.
(Clause 4 was inserted by Amendment Act 2002)
Which of the following statements is correct? The court which passed the decree may transfer it to another competent court if the :
a. Judgment debtor carries on business within the jurisdiction of the latter court.
b. Judgment debtor has no property within the jurisdiction of the former court sufficient to satisfy such decree but has property within the jurisdiction of the latter court.
c. Decree directs the sale of immovable property situated outside the local jurisdiction of the former court.
d. All these.
Ans. (d)
For transfer of a suit from one court to another by defendant where both courts are subordinate to different High Courts, the application lies to
a. State Government
b. To Supreme Court
c. To High Court in whose jurisdiction the court in which suit is brought is situated
d. To any two of High Court's
Ans. (c)
The application for execution of decree may be transferred from one court to another court: —
a. If the party feels that there is a possibility of delay in justice on the part of court
b. If the defendant lives or does business in the jurisdiction of that court where the application for execution of decree have to transfer
c. If the plaintiff has gone from the jurisdiction of the court which has passed the decree
d. Not included in these
Ans. (b)
Provisions of Section 39 of CPC are:
a. Permissive and not mandatory
b. Mandatory and not permissible
c. Mandatory and discretionary
d. None of the above
Ans. (a)
Words 'competent jurisdiction' under Section 39 of C.P.C. refers to
a. Pecuniary jurisdiction of transferee Court
b. Territorial jurisdiction of the transferee Court
c. Pecuniary and territorial jurisdiction of the transferee Court
d. None of the above
Ans. (c)
40. TRANSFER OF DECREE TO COURT IN ANOTHER STATE.
Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.
41. RESULT OF EXECUTION PROCEEDINGS TO BE CERTIFIED.
The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.
42. POWERS OF COURT IN EXECUTING TRANSFERRED DECREE.
1. The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
2. Without prejudice to the generality of the provisions of sub-section (1) the powers of the Court under that sub-section shall include the following powers of the Court passed the decree, namely: -
a. power to send the decree for execution to another Court under section 39;
b. power to execute the decree against the legal representative of the deceased judgement-debtor under section 50;
c. power to order attachment of a decree.
3. A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.
4. Nothing in this section shall be deemed to confer on the Courts to which a decree is sent for execution any of the following powers, namely-
a. power to order execution at the instance of the transferee of the decree;
b. in the case of a decree passed against a firm, power to grant leave to execute such decree against any person other than such a person as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI.]
43. EXECUTION OF DECREES PASSED BY CIVIL COURTS IN PLACES TO WHICH THIS CODE DOES NOT EXTEND.
Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends.
44. EXECUTION OF DECREES PASSED BY REVENUE COURT IN PLACES TO WHICH THIS CODE DOES NOT EXTEND.
The State Government may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State.
44A. EXECUTION OF DECREES PASSED BY COURTS IN RECIPROCATING TERRITORY.
1. Where a certified copy of decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
2. Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
3. The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.
EXPLANATION 1-
‘’Reciprocating territory" means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and "superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification.
EXPLANATION 2-
‘’Decree" with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect to a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.
A combined reading of Sections 43, 44 and 44-A shows that Indian courts have power to execute the decrees passed by
1. Indian courts to which the provisions of the Code do not apply;
2. The courts situate outside India which are established by the authority of the Central Government;
3. Revenue courts in India to which the provisions of the Code do not apply;
4. Superior courts of any reciprocating territory.
45. EXECUTION OF DECREES OUTSIDE INDIA.
So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established by the authority of the Central Government outside India to which the State Government has by notification in the Official Gazette declared this section to apply.
Section 45 deals with a converse case for the execution in foreign territory of the decrees passed by Indian courts in certain circumstances.
46. PRECEPTS
1. Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.
2. The Court to which a precept is sent Shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:
Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.
Provision relating to 'Precept' is provided in Civil Procedure Code under
a. Section 40
b. Section 44A
c. Section 45
d. Section 46
Ans. (d)
47 QUESTIONS TO BE DETERMINED BY THE COURT EXECUTING DECREE
1. All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
2. Repealed
3. Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
EXPLANATION I
For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
EXPLANATION II
a. For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
a. all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.
Which provision deals with determination of questions relating to discharge, satisfaction etc. of the decree?
a. Section 48
b. Section 46
c. Section 47
d. Section 21
Ans. (c)
Under Section 47 of the Code of Civil Procedure, which question does not relate to the execution, discharge or satisfaction of decree?
a. Whether a decree is executable?
b. Whether the property is liable to be sold in execution of the decree?
c. Whether the decree is fully satisfied?
d. Whether the decree is fraudulent or collusive?
Ans. (d)
48. EXECUTION BARRED IN CERTAIN CASES.
§ Rep. by the limitation Act, 1963(36 of 1963), s. 28 (with effect from the 1st January, 1964)
49.TRANSFEREE
Every transferee of the decree shall hold the same subject to the equities (if any) which the judgment debtor might have enforced against the original decree holder.
50. LEGAL REPRESENTATIVE
1. Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
2. Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.
Which of the following is the true meaning of the term Legal Representative under the Code of Civil Procedure 1908?
a. A person who in law represents the estate of a deceased person
b. Any person who intermeddles with the estate of the deceased and where a party sues in a representative character the person on whom the estate devolves on the death of a party so suing.
c. Any person who intermeddles with the estate of the deceased and where a party is sued in a representative character the person on whom the estate devolves on the death of a party so sued.
d. All of the above
Ans. (d)
Where a judgment-debtor dies before the decree has been fully satisfied:
a. The same cannot be executed against the legal representatives
b. The same can be executed against anyone of the legal representatives of the judgment debtor in its entirety
c. The same can be executed against all the legal representatives
d. The same can be executed against any number of the legal representatives as the decree holder wants
Ans. (c)
51. POWERS OF COURT TO ENFORCE EXECUTION.
Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-
a. by delivery of any property specifically decreed;
b. by attachment and sale or by the sale without attachment of any property;
c. by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section];
d. by appointing a receiver; or
e. in such other manner as the nature of the relief granted may require:
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-
a. that the judgement-debtor, with the object or effect of obstructing or delaying the execution of the decree, -
i. is likely to abscond or leave the local limits of the jurisdiction of the Court, or
ii. has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or
b. that the judgement-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 and refuses or neglects or has refused or neglected to pay the same, or
c. that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
EXPLANATION
In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.
The Court cannot order execution of a decree as per Section 51 of CPC, in which of the following ways?
a. By delivery of any property specifically decreed
b. By attachment and sale of property
c. By serving summons on the party
d. By appointing a receiver
Ans. (c)
Under Section 51 of CPC, which one is not a method to enforce execution of the decree?
a. By appointing a receiver
b. By sale without attachment
c. By arrest and detention
d. By appointing a commission
Ans. (d)
52. ENFORCEMENT OF DECREE AGAINST LEGAL REPRESENTATIVE.
1. Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
2. Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.
53. LIABILITY OF ANCESTRAL PROPERTY.
For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
54. PARTITION OF ESTATE OR SEPARATION OF SHARE.
Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession shares, of such estates.