Question: What are the consequences of appearance and non-appearance of parties.

Elucidate Ex Parte Decree.

Answer:
Whenever the court proceedings are about to take place in the court on a specific date then it
is important for the parties to be present on the prescribed date. Such presence in court saves
time of court and of the parties as well and it also contributes to move a step closer towards
justice. Whenever a case takes place in court, the parties are at high expectation to win the case
and get what they call as ‘justice’. But what would happen if the parties fail to appear in the
court on the prescribed date.
Order IX of Code of Civil Procedure, 1908 talks about the Appearance and Non-appearance of
parties in the court, and about the consequences of parties appearance and non-appearance.
Section 151 of CPC, is read along with Order IX in certain cases. Section 151 is nothing but
inherent powers of court to avoid the abuse of the process of court.
In a case there are only two parties – One is plaintiff and the other one is defendant. If either
of the parties are missing on the prescribed date in the court, then such situation can bring them
such consequences which would takes months to resolve.
Consequences on appearance and non-appearance of parties:

 If the defendant fails to appear (but plaintiff appears) on the prescribed date, then ex-
parte order is issued.
 If the plaintiff fails to appear (but defendant appears) then, the suit can be dismissed.
But, later on, if the defendant appears and wants to proceed with trial then the defendant will
have to put up an application to the court to set aside ex-parte order. But in the application the
defendant must provide the valid reason for his absence from the court. If the defendant hasn’t
been properly notified or given enough time to respond, a court cannot issue a decree against
the defendant in his absence, as shown in the case of Begum Para v. Luiza Matilda Fernandes,
1982 BOM LR 95. Rules 2 to 5 of Order IX mentions the provisions for scenarios where the
summons has not been served to the defendant. Rules 7-11 of Order IX consists of provisions
where only the defendant appears.
As per the provision in CPC, the suit has to be dismissed if the plaintiff fails to appear but
generally it is avoided, but not always. If the court wants to dismiss the plaintiff’s case without
a hearing, it should only be done so if it’s convinced it’s necessary for justice, as stated by
Beaumont, C. J. in Shamdasani v. Central Bank of India, AIR 1952 SC 59. In cases of plaintiff’s
non-appearance due to their demise then in such situations the court cannot dismiss the suit.
Even if order for dismissal have been passed in such situations then it will be considered as
void, as stated in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma, AIR 1967 KER 135.
In the case of P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar, AIR 1940 Mad 375,
it was held that, if sufficient reason is absent form the application to set aside the dismissal,
then the court has the discretionary power to either carry on with the dismissal or uphold it.
Ex-Parte Decree
The term ‘appearance’ means that either the party can appear in person or through his advocate
or along with the advocate.
If the defendant doesn’t show up for the scheduled hearing despite receiving a summons, the
court can issue an ex-parte decree. This means the plaintiff can proceed alone, and the court
can grant a favourable judgment in the plaintiff’s favour due to the defendant’s absence.
An ex-parte decree is legally valid, but it can be challenged or considered voidable if there are
legitimate legal reasons. It holds the same legal weight and force as a decree reached through
mutual representation. This was determined in the case of Pandurang Ramchandra v.
Shantabai Ramchandra, AIR 1989 SC 2240.
Remedies available when ex-parte order is passed
1. Setting aside the Decree:
 The defendant can request the court to set aside the ex-parte decree under Order
IX Rule 13 of CPC.
 Conditions for setting aside include improper summons service or valid reasons
for not appearing during the hearing.
 If satisfied, the court will issue an order setting aside the decree against the
defendant.
Setting aside the decree, here, simply means that the court may or may not accept
the application of the defendant to set aside the ex-parte decree.
If it can be proven by the defendant that he was willing to be present in the court on
the said date but due to unseen events he could not, or due to any reason which were
out of his control he failed to appear in the court of law then the application for
setting aside ex-parte decree can be accepted.
2. Conditional setting aside of Decree:
 The court, at its discretion, may set aside the decree with specific conditions
like costs, payments, or other terms.
 Rule 14 of Order IX mandates providing notice to the opposite party before
setting aside any decree.
This conditional setting aside of decree means that the court if thinks fit can ask the
defendant to pay costs or do payments with specific conditions in order to set aside
the ex-parte decree. So, it is the discretion of the court to decide whether grant
setting aside of ex-parte order on the basis of valid grounds or along with terms and
conditions and costs. Also, it has to be noted that Rule 14 says that no decree shall
be set aside on an application under Order 9, Rule 13, unless notice thereof has been
served on the opposite party.
3. Appeal:
 An appeal is allowed from an original ex-parte decree as per Section 96 (2) of
the Code.
If an application filed under Order IX Rule 13 CPC is rejected, then an appeal as
against the ex-parte decree can be preferred and continued under Section 96(2) of
the CPC.
Time period to file an appeal is within a period of sixty days from the date of
communication of the decision or order.
 4. Review:
 Section 114 of the Code permits a review against an ex-parte decree.
 A person feeling aggrieved by a decree or order, for which no appeal is preferred
or allowed, can apply for a review to the same court, and the court may make
an appropriate order.
 The review petition must be filed within a specified time period, which is
usually 30 days from the date of the judgment or order. There should be valid
grounds on the basis of which the review petition must be filed and the reasons
must fall within the ambit of Section 114.
In the case of Bhanu Kumar Jain v. Archana Kumar & Anr (2004), the Apex Court set aside
an Ex-Parte decree on the ground that the defendant had sufficient and reasonable grounds for
not being able to attend the hearing of the suit on the day fixed in the summons.
 Discovery of documents

When the adversary party is simply compelled to disclose the documents which are
under its possession or power, then that is called as the discovery of documents.
The discovery of documents is covered under the Rule 12-14 Order XI of the code.

Any party to a suit under oath may apply for an order from the court for the
discovery of documents which are related to the matter in question of the suit from
the adversary party.

An appropriate court can order any party of the suit to dispose of the documents
which are in its power or possession to the asking party. However, the party need
to be related to the suit.

Conditions

While the discovery of documents is being asked, two conditions need to be taken
care of by the court:-

1. The discovery ordered is necessary for the fair disposal of the suit.

2. The discovery will save costs.

Interrogatories

Section 30 and Order XI Rule 1 to 11, 21 and 22 of CPC covers interrogatories.

When, with the leave of the Court, parties administer a set of questions on the other
party then it is called ‘Interrogatories’. Interrogatories shall be confined to the
facts, it shall not be conclusions of law, construction of words or documents, or
inference from facts. Under CPC, this is known as the ‘right to obtain information’
by the parties. The party to whom the set of questions were administered shall give
reply to another party in writing and under oath. ‘Discovery of interrogatories’
means when the party, while giving answers to the interrogatories, discloses the
nature of the case, with affidavit .

As per the provisions of the code, any party in a suit can file an application to
obtain an order from the court to ask interrogatories from the other party. So after
filing the plaint, when the written statement is filed by the defendant and when the
court sends summons to parties for the first hearing, if any party feels that there is a
gap in the facts, then they can file an application under this section and ask order
from the court.

Procedure

The willing party to deliver interrogatories shall apply for leave to the court and
shall submit the proposed interrogatories to the court. As per Rule 2, the court shall
decide the matter within 7 days of filing the application by the party.

While deciding the matter the court shall take into consideration the following
points:

• Any offer which may be sought by the party to be interrogated to deliver

particulars;
• To make an admission;
• To produce documents associated with the matters in question; or
• Any of them.

Further, the court shall consider whether it is necessary in a particular matter, to

dispose of the suit fairly or for saving costs. After one set of interrogatories are
served, the parties can not serve another set without the permission of the court.
The set of questions shall be the ‘question of fact’ rather than the ‘question of law’.
Interrogatories shall not be allowed at the premature stage of the case.
Within 10 days of the service, the affidavit to answer shall be filed by the party to
whom the interrogatories were administered. If the party fails to comply with such
order of the court:-

1. the suit will be dismissed if the party is the plaintiff; and

2. if he is the defendant, his defence can be struck off.

Objection against discovery

The party can raise an objection if the documents required to submit comes under
the purview of the privileged documents. However, objecting by filing an affidavit
would not be enough, the party who is objecting also needs to give proper
reasoning behind such objection. The proper reasoning will enable the court to
decide the objection raised by the party. It is open to the court to inspect the
documents and check the viability of the objection raised by the party. Another
objection which can be filed is that discovery is not necessary at this stage of the
suit.

Inspection of documents

Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is
provided. As per Rule 12 of the code the party can compel other parties to produce
the documents without filing an affidavit to apply to the court, relating to any
matter of question-related to the suit. However, such documents need not be
admissible in court unless they give out some connection in a matter of
controversy.

As per the Rule 15-19 of Order XI of the code, the inspection of documents can be
divided into two categories:
1. The documents which are referred to in the affidavits or pleadings of the parties.

2. The documents which are not referred to in the pleadings of the party but are in
the power or possession of the parties.

And the parties are allowed to get the inspection of the former category documents,
not the latter one.

Case laws

In a recent case of 2018, Samir Sen v Rita Ghosh, the petitioner filed an
application under Order XI after five months of the closure of the plaintiff’s –
respondent’s evidence in the trial court. Because of the delay, the lower court
dismissed the application for which an appeal has been filed by the aggrieved. The
Jharkhand High Court observed that as per the scheme laid down for the trials in
the Order XIII CPC, it requires parties to produce their original documents as per
their claim founded during the time of presentation of the plaint or filing of the
written statement. And because of this, the interrogatories are given under Order
XI of the Code. And held that the defendant failed to file the application on time,
thereby the order of the trial court was right and the writ petition was dismissed.

In the case of Govind Narayan and Ors. vs. Nagendra Nagda and Ors., the
Rajasthan High Court observed the importance of interrogatories and the time
period in which it shall be filed by the party. The court held the following:

Reading section 30 with Order XI Rule 1 of the Code, it makes clear that the courts
have the discretion to allow service on interrogatories at any stage of the suit. The
court confers wide discretion, at the same time the discretion shall be exercised
judiciously.
The information asked under interrogatories shall have nexus with the dispute in
question.The stage of the suit shall be significantly considered by the court. At the
same time, it is to be understood that the main purpose of this procedure is to save
time and cost by encompassing the issues or narrowing down the disputes.
Essay Question: Framing of Issues and Kinds of Issues.

Framing of Issues
Introduction
Framing of issues is one of the most important part of the trail of a civil nature. For a correct and
accurate decision in the shortest possible time in a case, it is necessary to frame the correct and
accurate issues. Inaccurate and incorrect issues may kill the valuable time of the court.
The term "issue" in a civil case means a disputed question relating to rival contentions in a suit.
It is the focal point of disagreement, argument or decision. It is the point on which a case itself is
decided in favour of one side or the other, by the court. Order XIV of C.P.C. deals with framing
of issues.

In Howell v. Dering, the Court held that, an issue is that which, if decided in favour of plaintiff,
will in it give a right to relief; and if decided in favour of the defendant, will in itself be a
defence.

In Siddhi Chunilal vs. Suresh Gopkishan, it was observed that if correct and accurate issues
were not framed, it leads to gross injustice, delay and waste of the court's valuable time in
deciding the matter.

If defendant makes no defense, framing and recording issue by the Court does not arise, in such a
case, a Court need not frame and record issue in as much as the defendant makes no defense at
the first hearing of the suit.

When issues arises?

Issues arise when a material proposition of fact or law is affirmed by one party and denied by the
other party to the suit.
Material propositions:- According to Order XIV Rule 1(2) material propositions are those
propositions of fact or law which a plaintiff must allege in order to show a right to sue or a
defendant must allege in order to constitute his defense.

Kinds of Issues
As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds:
1. Issues of fact
2. Issues of Law

Issues, however, may be mixed issues of fact and law.

Order XIV Rule 2(1) provides that where issues both of law and fact arise in the same suit,
notwithstanding that a case may be disposed of on a preliminary issue, the court should
pronounce judgment on all issues. But if the court is of the opinion that the case or any part
thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates
to:

1. The jurisdiction of the court; or

2. A bar to the suit created by any law for the time being in force,
For that purpose, the court may, if it thinks fit, postpone the settlement of the other issues until
the issues of law have been decided.
When determination of question law depends on a question of fact, then the issue of law should
not be tried as a preliminary issue. The plea of limitation , estoppel, res judicata., etc , raised in
the beginning of a case can be tried as a preliminary issue.

To decide to try anything as a preliminary issue is a matter of discretion for the court. But it is
not an obligation.
In Desi Kedri v. Huzurabad Cooperative Marketing Society Ltd., it was held that issues not
need not be framed when there is no dispute with regard to material averments in the plaint

Object of framing of issues (Why issues are framed?)

The main object of framing issues is to ascertain the real dispute between the parties by
narrowing down the area of conflict and determine where the parties differ.
In Fiza Developers & Inter-Trade (P) Ltd. v. Amci (I) (P) Ltd., it was held that the object of
issues is to focus upon the questions on which evidence has to be led and to indicate the party on
whom the burden of proof lies.

Duty of the court: The duty in relation to framing of the issue is that of the court which it has to
discharge because it has to try the suit and it has to give notice to parties to lead evidence with
the context of the issues framed.
An obligation is cast on the court to read the plaint and the written statement and then determine
with the assistance of the learned counsel for the parties, material propositions of fact or of law
on which the parties are variance. The issue shall be formed on which the decision of the case
shall

The evidence shall be confined to the issues. The object of an issue is to tie down the evidence
and arguments and decision to a particular question so that there may be no doubt on what the
dispute is. The judgment then proceeding issue-wise would be able to tell precisely how the
dispute was decided.

In MB Sanghvi v. Secretary, Madras Chillies Merchant, Supreme Court held that, the Court
should not determine an issue which does not arise on the pleadings and should not decide a suit
on a matter on which no issue has been raised. No issue need be framed on a point of law which
is perfectly clear.

In Akha Ram v. LR of Ram Sahai, the court held that where broader issue framed having
mixed facts, some facts relating to plaintiff and some facts relating to defendant, the trial Court
allowing plaintiff to lead evidence of defendant was not improper.

When issues are framed?

According to Order XIV Rule 1, issues are framed and recorded by the court at the first hearing
after reading the plaint, written statement, examining and hearing of parties and their pleaders.

Where the Court finds that the issues cannot be correctly framed without the examination of
some person not before the Court or without the inspection of some document not produced in
the suit, it may adjourn the framing of the issues to a future day (maximum of 7 days).

Court's power and Duty as to issues:

The duty to frame proper issues rests primarily on the Court. The judge must apply his mind with
due care, caution and diligence and understand the facts of the case before framing issues. The
pleaders appearing for both the parties also should assist the court in framing issues. If proper
issues are not framed, the parties may move the court to get the proper issues framed.

Issues must be specific and clear and not vague or evasive. The court may examine the witnesses
or inspect documents before framing issues, to amend the issues, to frame additional issues or to
strike out issues that may appear to it to be wrongly framed. Where the parties to a suit agree as
to the question of fact or law to be decided between them, they may, by agreement state the same
in the form of an issue. If the court is satisfied that the agreement is executed in good faith, it
may pronounce the judgment on such issue according to the terms of the agreement.

Materials that are required for framing of issues:

The issues may be framed by the Court from all or any of the following materials:
 1. Allegations made on oaths by the parties, or by any persons present on their behalf, or
made by the pleaders of such parties;
2. Allegations made in the pleadings or in answers to interrogatories delivered in the suit;
3. The contents of documents produced by either parties.

Amendment of issues framed

Order XIV Rule 5, C.P.C. empowers the court to amend issues framed or frame additional issues
at any stage of proceedings. Issues can be amended at any stage of the trail. They can also be
amended by appellate or revisional court.

In Nagubai Ammal v. B. Shama Rao, Supreme Court observed that, a trail does not get
vitiated on wrong, improper or defective issues.

Omission to frame issues:

Even though it is the duty of the court to frame proper issues, mere omission to frame an issue is
not necessarily fatal to the suit. Omission to frame an issue is an irregularity which may be or
may not be a material one. If such an omission affects the disposal of the suit on merits, the case
must be remanded to the trial court for a fresh trial.

Where the parties went to trail with full knowledge that a particular point was at issue, they have
not been prejudiced and substantial justice has been done, absence of an issue is not fatal to the
case so as to vitiate the proceedings.

Conclusion
Issues are very important not only for the parties but also for the Court. Thus framing of issues is
a very important stage of a civil trial. Parties are required to prove or disprove the issues framed
by the court, not the pleading. On the other side, court is also bound to give decision on each
framed issue. Therefore, the Court is not to decide those matters on which no issues have been
framed.

If issues are properly framed, the controversy in the case can be clearly focused and documents
can be properly appreciated in that light. The relevant evidence can also be carefully examined.
Careful framing of issues also helps in proper examination and cross examination of witnesses
and final arguments in the case.
 Code of Civil Procedure

NOTE FOR YOUR INFORMATION:

1) UNDERLINED WITH BOLD LETTERS ARE THE MAIN IMORTANT

MODES OF EXECUTION (THERE ARE FIVE)
2) HIGHLIGHTED WITH YELLOW SIGNIFIES THE IMPORTANT ORDER
AND THE RULES ALONG WITH CASE LAWS.

1) What are the different modes of execution?

INTRODUCTION

-The term "execution" refers to carrying out, enforcing, or giving effect to a court of justice
order or verdict. In layman's terms, "execution" refers to the process of executing or giving
effect to a court's decree or judgement by requiring the judgment-debtor to carry out the decree
or order's command and allowing the decree-holder to reclaim the object awarded to him by
judgement.

PRINCIPLES GOVERNING EXECUTION

SECTION 36- 74 UNDER ORDER 21 ( 106 RULES)

RELEVANT SECTIONS

 Section 51 of CPC- Court's Powers to Enforce Execution

-by delivery of any property explicitly decreed.

 Section 47 of CPC requires the Court to answer certain questions before issuing the
decision..
 Section 39 : The rules for transferring a decree to another court for execution are found
in Section 39 of the Code of Civil Procedure. Following the application of the decree-
holders, the Court might transfer the decree to another Court of competent authority.
  Sec 40 CPC : The Court may transfer the matter to competent courts in another state
under Section 40 of the Code of Civil Procedure.
 Section 42 CPC : According to Section 42 of the Code of Civil Procedure, the court to
which the decree is transferred for execution has the same authority as if the decree had
been issued by that court.

THE MODES OF EXECUTION OF A DECREE

1) By Arrest And Detention

2) By delivering any property explicitly decree

3) By attaching the property and selling it, or by selling it without attaching it.

4) By selecting someone to be the receiver.( APPOINTMENT OF RECEIVER)

5) In any way that the nature of the relief necessitates.

1) ARREST AND DETENTION AS A MODE OF EXECUTION

Situation where arrest and detention may be ordered for judgement debtor

According to section 51(c) : is a situation which the decree holder goes to the court for the
executing a decree. In such case the court then can execute decree by way of Arrest and
Detention to Judgement Debtor.

It can be actually passed in the following cases under Order 21:

• When the decree is for the payment of money (Cash) , it can be executed by arrest and
detention of judgement debtor ( Rule 30)
• When there is a decree is for a selected moveable property, court can execute a decree by
Arrest and detention of judgement debtor (Rule 31)
• When the decree is for the performance of a contract or injunction, court can execute a decree
by arrest and detention of judgement debtor (Rule 32)

Case Law: Jolly George Varghese v. Bank of Cochin.

Supreme Court therein went into a wide discussion on Section 51. The Court emphasized that
the section's meaning does not punish a person solely for failing to meet an obligation. The
Court is required to investigate whether or not the person has the financial means to pay the
money. He cannot be arrested or detained if he does not comply. There must be an active
unwillingness to pay, bad faith, or malice on the part of the judgment-debtor, as opposed to "a
simple default to discharge" and "mere indifference to pay".

Case Law: Xavier v Canara Bank Ltd

The Kerala High Cout held that the judgment-debtor will be subject to the provision if he has
current means to pay the amount of the decree but refuses or neglects to do so.

WHO CANNOT BE ARRESTED: IMMUNITY FROM ARREST

There are certain classes of persons that are exempted from arrest and detention unde the
various provisions of CPC. Such persons include:

• Women (S. 56)

• Judicial Officers ( S. 135)
• When the matter is pending their pleaders, revenue agents, witnesses acting obedience to
summons
• Members of Legislatures (S. 135A)
• Where the decretal Amount is less than Two thousand Rupees ( S. 558( 1A))

Case Law: Vemanarayana v. Saku Bhai

In this case court held that the arrest and detention in custody is a mode of execution of decree
under section 51(C) of the code.

PROCEDURE FOLLOWED FOR EXECUTION OF DECREE FIR ARREST AND

DETENTION- SECTION 55

According to Section 55: A Judgement debtor can be arrested at any hour or any day
for execution of decree. It says that once after the arrest he / she should be brought
before the court as soon as possible and his detention must be in the Civil prison of
the district in which the court is ordering the detention.

However, there are certain restrictions regarding entry and time. They are as follows:
• Firstly, that for making arrest - No dwelling house, that is, a house for residence, may be
utilised for commercial purposes. As a result, no residential house may be entered before
sunrise or after sunset.

• Secondly , no outer door of a dwelling house shall be broken open unless such dwelling house
is occupied by the judgement debtor. If he refuses or obstructs, the officer licenced to make
arrests can smash down the door and arrest the judgement debtor.

• Thirdly, for making such arrest- That if the room is in the actual occupation of a woman who
is not the judgment-debtor and who does not appear in public according to customs, the officer
authorised to make arrest must give her notice that she is free to leave and giv her a reasonable
opportunity to leave before entering the room for the purpose of making arrest.

• Fourthly, If the decree is for the payment of money, no arrest shall be made if the judgment-
debtor pays the whole amount of the decree as well as the costs of the arrest to the officer
arresting him.

PERIOD OF DETENTION

Section58: stipulates the amount for which an individual is frequently imprisoned, which
iscompatible with the amount of the decree made against him by the court, and when he has
not paid that decretal amount. It states that if the decretal sum exceeds five thousand rupees,
an individual cannot be detained for more than three months, and such imprisonment cannot
exceed six weeks for amounts between two thousand and five thousand rupees. If the amountis
less than two thousand rupees, no order for detention of the judgement debtor is usually issued.

2) ATTACHMENT AND SALE OF PROPERTY - SECTION 60-64 , ORDER 21 , RULE

41-57 – IS ALSO ONE OF THE MODE OF EXECUTION

Section 60 : provides the list of properties which are liable to attachment and sale in execution
of the decree. The list which is liable to be attached for enforcement of decree are follows:

 Land;
 Houses or other buildings;
 Goods and Money;
 Banknotes and cheques;
  Bill of exchanges and promissory notes;
 Hundis;
 Government Securities, bonds and other securities for money;
 Debts;
 Shares in the corporation;
 All other saleable property that belongs to the judgment-debtor which can be movable
or immovable.

Provided, that following are particulars shall not be liable for such attachment or sale
namely:

a) The necessary wearing apparel, cooking vessel, beds and beddinf of JD

b) Tools of artisans and where JUDGEMENT debtor is an agriculturalist, his implementation

of husbandry and such cattle seed grain as may be opinion of court be necessary to enable him
to earn livelihood

c) House or other building (belonging to Agriculturist Or labourer) occupied by him.

Section 61 : provides a partial exemption of agricultural produce.

Case law: Raghava Rapu Nageshwar Rao v Tenneti Venkata Lakshminarayana 1997(6)
ALT 762

It was held that salary under attachment in execution of one and same de ree for a continuous
period of 24 months is finally exempted from attachment thereafter in execution of same
decree.

Order 21, Rule 3 : provides that if the immovable property is located in more than the local
limits of the jurisdiction of one or more courts, then one of the Court can sell and attach the
property.

Order 21, Rule 13: There has to be certain information in the application for attachment of
immovable property.

Order 21, Rule 31: The decree for the specific movable property can be executed by:

•Seizure of the property if it is practicable;

•Delivery of the property to the person whom it has been adjudged;

•The detention of judgment-debtor in the civil prison.

According to section 62 ,Order 21, Rule 43-54 - MODES OF ATTACHMENT OF
PROPERTY

TYPES OF PROPERTY MODE OF ATTACHMENT

1)Movable property other than agricultural 1)Seizure( can be sold if punishable or

produce- R 43 high maintenance)

2) Movables like livestock or other articles 2) Leaving in custody of respective

inconvenient for attachment- R 43A person

3)Immovable property 3)Order prohibiting the Judgment debtor

from transferring
4) Negotiable instrument- R 51
4)Actual seizure and bringing to the court
5)Salary/Allowance- R 48 & 48A
5) Order to with hold in/by monthly
6)Agricultural produce- R 44
installments

6) Fixing the warrant of attachment- R 44

DETERMINATION OF ATTACHMENT - RULE 55-58

3) APPOINTMENT OF RECEIVER - AS A MODE OF EXECUTION

Order 40 : provides provisions relating to the appointment of a receiver. The Court will also
fix appropriate remuneration for the services provided by the receiver. The Court can appoint
an impartial person known as a receiver before or after the decree for:

a) Management and protection of the property;

b) The collection of the rents and profits;

c) The application and disposal of rents and profits;

d) The execution of documents;

e) The Court also provides other powers than the above-mentioned power if it thinks fit.

4) DELIVERY OF PROPERTY- AS A MODE OF EXECUTION

Delivery of property is one of the most famous modes of execution

According to Order 21 Rule 79, it is said that when the property that is sold is a movable
property of which actual seizure has been made, it shall be delivered to the purchaser. Rule
35 of the Order 21 discusses the rules regarding the decree of immovable property.
According to this rule:

•When the decree is for the delivery of immovable property, the property can be delivered to
the person to whom it has been adjudged or to the representative of that person;

•This delivery has to be made after removing any person bound by the decree who refuses to
vacate the property;

•When the decree is for the joint possession of the immovable property, the possession shall
be delivered after affixing the copy of the warrant in a place that is visible;

•When the person in possession is not providing free access to the property, then the Court
can remove or open any lock or bolt or break open any door or do any other act necessary for
putting the decree-holder in possession after giving proper warning to the women in that
property.

5) IN ANY WAY THAT THE NATURE OF RELIEF TO BE GRANTED- AS A

MODE OF EXECUTION

Injunction

Rule 32 of the Order 21 provides ways to enforce the decree for an injunction. The decree
can be executed by the detention of judgment holders in the civil prison or by attachment of
property, sometimes both of the processes are carried out to enforce the decree for an
injunction. This procedure has to be followed if the person willfully disobeys the decree.
Case Law: Shyam Singh vs. Collector, 1992, 1993 (2) BLJR 1171, 1993 76 CompCas 525
SC,

The court held that , a decree holder has the option of choosing a specific mechanism for
carrying out and enforcing a decree in his favour. It is up to him to choose which of the
several modalities he will use to carry out his edict.

CONCLUSION

There are various methods of execution of a decree under the Code of Civil Procedure. It is
the duty of the Court to assess the facts of each and every case and provide appropriate relief
to the decree-holder without any delay. The Court has to follow the procedures which are
provided under the Orders of the Code of Civil Procedure before executing a decree and
choosing the appropriate mode of execution.
INTRODUCTION:
The passing of a decree by a competent court conclusively determines
the rights of the parties about all or any of the matters in controversy in the suit, thus creating
substantive rights in favor of the decree-holder. In an attempt to ensure that a decree-holder
can realize the fruits of the decree, the Code of Civil Procedure gives some modes for the
execution of decrees. One of these modes of execution of a decree is the process of attachment
and sale of the properties of the Judgment-debtor. While through the process of attachment, the
court informs the world that the property so ordered to be attached is “in its View” and “no
existing rights and liabilities should be altered,” through the process of the sale of the property
of the judgment- debtor, the court delivers the money so collected to the decree-holder is the
satisfaction of his claim.
Attachment of the Property
A decree may be executed on the application of the decree-
holder by attachment and sale or by sale without attachment of property. The code recognizes
the right of the decree-holder to attach the property of the judgment-debtor in execution
proceedings and lays down the procedure to effect attachment. Sections 60 to 64 and Rules 41
to 57 of Order 21 deal with the subject of attachment of property

Nature and Scope:

Section 60 (1) states that properties which are liable to be attached and
Sold in the mode of Execution of a decree. It also specifies the properties that are subjected to
attachment and Sale and it also specifies the properties which are subjected not to attachment
and sale of such property. In an execution proceeding, the executing court should be competent
to attach such property if it is situated within the local limits of the jurisdiction of the court
[M.A.A Raoof v. K.G. Lakshmipathi] (1969).

Object:
The main object behind the attachment of the property is to give notice to the
Judgement-debtor not to alienate the property to any other and it also notifies the general public
not to purchase the property of the Judgment-debtor attached in the execution proceedings. The
Civil Procedure Code of 1908 provides the judgment debtor certain protection by granting
exemption to certain properties from attachment and sale [Dwarika Prasad v. Damodar
Swarup] (1967).
Property which can be attached (Section 60)
Section 60(1) states the properties which are liable to attachment and sale in the execution of a
decree and which properties are exempt therefore. All saleable properties which include
movable properties and as well as the immovable properties belonging to the judgment debtor
or over which or the portion of which he has a disposing power which he may exercise for his
own benefit may be attached and sold in execution of a decree against him [State of Punjab v.
Dina Nath] (1985).

Property which cannot be attached: (Section 60,61)

 The proviso to section 60(1) declares that the properties specified therein are exempt from
attachment and sale in the execution of a decree [ State of Punjab v. Dina Nath] (1985).
 The list enumerates certain properties that are completely exempted from attachment such
as necessary wearing apparel, cooking vessels, bedding, tools of artisans, implements of
husbandry, houses of agriculturists, wages, salaries, pensions and gratuities, compulsory
deposits, right to future maintenance, etc.
 The exemptions listed in the proviso are cumulative and the judgment-debtor may claim
the benefit of more than one clause if he is qualified to do so. [Radhey Shyam v. Punjab
National Bank] (2009).
 There was a conflict of judicial opinion as to whether a judgment-debtor could waive the
benefit conferred upon him by the proviso. One view was that since it was intended for the
benefit of the judgment-debtor he can waive it. Another view was that it was based on
public policy and, therefore, could not be waived by him.
 Section 61 empowers the state government to exempt agricultural produce from attachment
or sale. This provision is intended to enable an agriculturist to continue the agriculture.
[Narsingh v. Kamandas] (1980).

Determination of attachment

The Code of Civil Procedure, 1908 under Order 21 Rules 55-58 explains the circumstances
under which the attachment is determined and they are:

1. Where the decretal amount is paid or is satisfied [Order 21 Rule 55 (a), (b)]
2. Where the decree is reversed or set aside [Order 21 Rule 55 (c)]
3. Where the court upholds the objection against the attachment and makes an order for
releasing the property [Order 21 Rule 58 (3)]
4. Where after the attachment the application for execution is dismissed [Order 21 Rule 57].
5. Where the judgment holder withdraws the attachment
6. Where the decree-holder fails to do what he was required to do under the decree
7. Where the suit of the plaintiff is dismissed (Order 38 Rule 5).
8. Where the attachment is ordered before the judgment and the defendant furnishes necessary
security (Order 38 Rule 9).
9. Where there is an agreement or compromise made between the parties
10. Where the creditor abandons the attachment.

Sale of Property

Power of court: Rules 64-65

Order 21 Rule 64 provides that any court executing a decree may order that any property
attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the
decree shall be sold and the proceeds of such sale or a sufficient portion thereof shall be paid
to the party entitled under the decree to receive the same.

This rule enjoins that in all execution proceedings, the court has to enquire whether the sale of
part of the property would be sufficient to satisfy the decree. This is not just a discretion but an
obligation and a mandate of the legislature. The sale held in contravention of this mandatory
requirement is considered to be illegal and without jurisdiction. [Balakrishnan v. Malaiyandi
konar] (2006)

Proclamation of Sale: Rules 66-67

After the property is attached and ordered to be sold by public auction, the first step to be taken
by the court is to cause a proclamation of the intended sale to be made in the language of the
court. [Order 21 Rule 66(1)]

Such proclamation shall be drawn up notices to the decree-holder and the judgment-debtor and
shall state the following details;

 Time and Place of sale

 Property or a part thereof to be sold.
 Revenue, assessed upon the property.
 Encumbrance, if any, to which the property is liable.
 Amount to be recovered.
 Such other particulars which the court considers material for a purchaser to know to judge
the nature and value of the property. [Order 21 Rule 66(2)]

Time of sale: Rule 68

No sale without the consent in writing of the judgment-debtor can take place before fifteen
days in case of immovable property and before 7 days in case of movable property from the
date of proclamation in the courthouse.

Adjournment of Sale: Rule 69

The court has the discretionary power to postpone the sale. If it has been postponed for a period
of 30 days, a fresh proclamation has to be issued and again the process of rules 67, 68, and 69
will follow.

Restriction to bid: Rules 72-73

A decree-holder cannot, without the express permission of the court, purchase the property sold
in execution of his decree. A mortgagee of immovable property cannot, without the leave of
the court, purchase the property sold in execution of a decree on the mortgage. Any officer or
other person having any duty to perform in connection with the execution sale cannot either
directly or indirectly, acquire or attempt to acquire any interest in the property sold in execution.

Sale of Movable Property: Rules 74-78

Agricultural produce and growing crops [Order 21 Rules 74 and 75]

In the case of agricultural produce, the sale shall be held on or near the land on which the crop
is standing or where the crop has been harvested, at or near the place where the crop is lying.
[Lakshmibai v. Santapa Revapa Shinte (1889)]. The court may, however, direct the sale to
be held at the nearest place of public resort, if it believes that the produce may fetch a better
price (Proviso to Rule 74(1)).

Negotiable Instruments and Shares [Order 21 Rule 76]

In the case of a negotiable instrument or share in the corporation, the court has the power to
order a sale through a broker instead of by public auction. On such sale, the purchaser acquires
a title.
Payment of Price [Order 21 Rule 77].

The price of the property shall be paid at the time of sale. On payment of the price, the sale
becomes absolute. Confirmation of sale by the court is not necessary as in the case of sale of
immovable property. In case of default by the purchaser in payment of price, the property will
forthwith be resold and the defaulting purchaser would be liable for the deficiency in price on
such resale.

Sale of Immovable Property: Rule 82-94

Order 21 Rule 82 – 94 that deals with the sale of immovable property.

 Order 21 Rule 83 enables the executing court to postpone the sale to enable the judgment-
debtor to raise decretal dues by private alienation. The court may postpone the sale to enable
the judgment-debtor to raise the decretal amount by private alienation, such as sale,
mortgage, charge, lease, etc.
 Order 21 Rule 84-85 provides for payment of purchase money by auction-purchaser.
 Order Rule 86 talks about cases of default by auction-purchasers in making requisite
payments and resale of property.
 Order 21 Rule 84-87 talks about deposit and payment of price. Immediately after the sale
of immovable property, the person declared to be the purchaser of the property must deposit
25% of the purchase money, unless such requirement is dispensed with by the court. The
provision regarding the deposit is mandatory and non-compliance with it will make the sail
a nullity
 Order 21 Rules 89-91 and 93 deal with setting aside sales and the effect thereof.
 Order 21 Rules 92-94 confirm the sale and issuance of the sale certificate.
 Section 65 declares the effect of the sale. Once after the sale has become absolute the
property shall be deemed to have vested in the purchaser from the date when it is sold and
not from the date when the sale becomes absolute. In Janak Raj v. Gurdial Singh (1967),
in this case, it was held that “Purchaser’s title relates to the date of the sale and not the
confirmation of sale”

CONCLUSION

It appears that execution is the enforcement of decrees and orders by the process of court, to
enable the decree-holder to realize the fruits of the decree. The execution is complete when the
decree-holder gets money or other things awarded to him by the judgment, decree, or order.
Order 21 of the code contains elaborate and exhaustive provisions for the execution of decree
and order, taking care of different types of situations and providing effective remedies not only
to the decree-holder and judgment-debtors but also to the objectors and third parties. A decree
can be executed by various modes which include delivery of possession, arrest, and detention
of the judgment-debtor, attachment of the property, by sale, appointment of a receiver, partition,
cross-decrees, cross-claims, payment of money, etc. In exceptional situations, where provisions
are rendered ineffective or incapable of giving relief to an aggrieved party, he can file suit in
civil court.
Withdrawal and Compromise.

Withdrawal

Withdrawal and Compromise is dealt under Order 23 of the CPC. Withdrawal of suits can
happen at any time before its institution. Procedure relating to withdrawal of suits shall
depend on whether it was done with or without the leave of the court.

1. Withdrawal without leave of the Court.

• It is the right of the plaintiff to withdraw the suit any time after its institution.

• However, the P shall be liable for costs and also shall be precluded from instituting a
fresh suit on the subject matter or any part of the claim.

• Once the P withdraws, the D can apply to the court to be transposed as a plaintiff
under Order 1 Rule 10. ( Rule 1A)

2. Withdrawal with Leave of the Court

Courts may grant permission to withdraw suits when it thinks that it shall fail on formal
grounds or there other sufficient grounds to allow P to institute fresh suit.

Formal defects refer to defect it form/procedure not affecting the merits of the case.

Eg:- misjoinder of parties, multifariousness, non payment of court fee/stamp fee, erroneous
valuation, defect in prayer clause etc.

Example of errors that are not just a formal defect:

Non – joinder of necessary party, omission to include all causes of action, non- examination
of material witness etc

• Sufficient ground is different from “formal defects”.

Eg: the P feels that even if a decree is granted, it cant be executed; an omission to file a
Power of Attorney etc.

Permission to withdraw can be given suo moto or on application. Res judicata wont apply in
such circumstances where withdrawal had been permitted. Withdrawal require agreement of
all the plaintiffs. If Plaintiff is a minor, withdrawal requires leave of the court. (Proviso to
R1(1)). A plaintiff withdrawing with liberty to file a fresh suit shall do so within the limitation
period. Withdrawal can be done in Appeals, Revision and writ Petitions. However, Order 23
wont apply in execution proceedings. (Rule 4). An order granting/refusing permission to
withdraw the suit with permission to file fresh suit on same cause of action is not a decree or
order. However it is a ‘case decided’ and hence revisable.

Compromise

Compromise means settlement of dispute by mutual consent. It is dealt under Rules 3-3B of
Order 23. The general Principle is that all matters that can be decided in a suit can also be
settled by means of a compromise, as held in (Prithvichand v S Y Shinde, (1993).

Conditions:

1. There must be an agreement/compromise.

2. It must be in writing and signed by the parties.

3. It must be lawful.

4. It must be recorded by the court

5. A compromise(consent) decree must have been passed.

In the case of any dispute regarding the dcree, the court that recorded compromise and passed
the decree shall hear the dispute. A party to compromise can challenge it inter alia on the
ground that there is no compromise/agreement/ that it is not signed by him etc. It can be
challenged by filing a suit on the ground of fraud, undue influence/coercion. In Ruby Sales and
Services Ltd v State of Maharashtra (1994) it was held that since a compromise decree is a
creature of an agreement, it can be set aside on any grounds that may invalidate an agreement.

Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566

• No appeal is maintainable against a consent decree having regard to the specific bar
contained in Section 96(3) CPC.

• No independent suit can be filed for setting aside a compromise decree on the ground
that the compromise was not lawful in view of the bar contained in Rule 3-A.

Banwari Lal v Chando Devi , (1993) 1 SCC 581

A party challenging the compromise can file an appeal under S.96(1). Order 43 Rule 1A(2)–
In an appeal against a decree passed after recording or refusing to record a compromise, the
order recording or refusing to record such compromise can also be challenged.
 Title:
Admissions under the Civil Procedure Code (CPC):
A Comprehensive Overview

● Introduction:

Admissions play a crucial role in the legal proceedings governed by the Civil Procedure
Code (CPC). An admission is a statement made by a party, either in pleadings or during
the course of trial, acknowledging the truth of a fact or a set of facts alleged by the other
party. This note delves into the significance of admissions in civil cases, the rules
surrounding them under the CPC, and relevant case laws illustrating their application.
According to the Civil Procedure Code (CPC), Order 12 Rule 6 gives courts the power to
make judgments based on admissions made by parties. Admissions can be made at any
stage of the proceedings, and can be oral or written

Admissions can take various forms, such as express admissions, implied admissions, and
admissions by conduct. An express admission occurs when a party explicitly acknowledges
a fact, while an implied admission arises when a party's conduct suggests an
acknowledgment of certain facts. Admissions by conduct involve circumstances where a
party's behavior implies acceptance of the truth of certain allegations. Under Section 17 of
the CPC, an admission made by a party is binding on them unless it is subsequently
 withdrawn. This section emphasizes the importance of careful consideration before making
admissions, as they can significantly impact the outcome of the case.

● Relevance of Admissions in Civil Proceedings:

Admissions serve as powerful pieces of evidence in civil cases. They not only narrow down
the issues in dispute but also contribute to expediting the trial process. Admissions can be
used strategically by parties to simplify the case, saving time and resources.
Section 58 of the CPC explicitly mentions that no party can be compelled to make an
admission, and any admission made without prejudice is not binding. This provision
ensures fairness and protects parties from being coerced into admissions against their
interest.

● Case Laws Illustrating the Importance of Admissions:

1. Kunhayammed vs. State of Kerala (2000): In this case, the Supreme Court held that
admissions made in pleadings are substantive evidence and can be used against the
party making them. The court emphasized the need for consistency in a party's
stance throughout the proceedings.

2. M.C. Mehta vs. Union of India (1987): The court, in this environmental litigation
case, accepted certain facts as admissions made by the government, demonstrating
the broad applicability of admissions in different types of civil cases.

3. Raja Ram Kumar Bhargava vs. Union of India (1988): This case highlighted the
importance of admissions by conduct, where the court considered the behavior of
the parties as an implied admission, leading to a favorable judgment for the
opposing party.
● Circumstances in which Judgment on Admission can be Declined:
a. It is wholly inappropriate to permit any party to employ this provision where vexed
and complicated questions or issues of law had arisen.
b. The rule is not intended to apply where there are serious questions of law to be
asked and determined.
c. Unless all essential ingredients of an admission are satisfied before such a decree
is passed in favor of any of the parties to the suit. Therefore, where questions of
law and fact have been raised, which can be decided only at the time of trial, a
Judgment under Order XII Rule 6 cannot be pronounced on the basis of alleged
admissions in the written statement. Thus, in spite of admission of a fact having
been made by a party to the suit, the Court may still require the plaintiff to prove
the fact which has been admitted by the defendant.

● Conclusion:

It is pertinent to note here that the Order XII Rule 6 of the Civil Procedure Code, 1908
provides that the court “may” pass a judgement or order based on the admission. Thus, it
is clear that the legislative intent is to confer a discretionary power on the Court and
judgement based on admission cannot be claimed as a matter of right. The legislative intent
is further clarified by the proviso to Order 8, Rule 5. The proviso provides that even where
a fact has been admitted by an admission, the Court has discretionary power to require the
admitted fact to be proved by any other means.

In conclusion, admissions under the CPC are integral to the legal process, aiding in the
efficient resolution of civil disputes. Parties must exercise caution when making
admissions, considering their binding nature as per the CPC. The case laws discussed
illustrate the significant impact admissions can have on the outcome of civil cases,
reinforcing the importance of a thorough understanding of this aspect of civil procedure.
 Decree

A decree as defined under Section 2(2) of Civil Procedure Code, is a formal expression which
determines the interest of both the parties in a conclusive manner, with regards to any disputed
matter in a civil suit. Significantly, a decree is a formal expression of adjudication by which the
court determines the rights of parties regarding the matter in a controversy or a dispute. A set-off or
a counterclaim can be obtained on the decree.

A decree shall be deemed to include-

• Rejection of a plaint
• Determination of any question under Section 144 of the Act.

The decree might not include -

• Any adjudication from which an appeal lies as an appeal from an order
• Any order of dismissal for default

Illustration: In a suit between A and B wherein A claims that a particular property ‘P’ belongs him
while B claims that the said property belongs to him. After hearing all the arguments, the court will
rule in the favor of either A or B. The final decision of the court regarding the above claim i.e.
whether the property belongs to A or B is a decree.

Essential elements of a Decree

Following are the mandatory elements to be fulfilled for the adjudication to be termed as a decree.
1. Formal expression: There must be a formal expression of adjudication. In simple terms to be a
decree, the court must formally express its decision in the manner provided by law. A mere
comment of the judge cannot be a decree. The decree follows the judgment and must be drawn
up separately. If a decree has not been drawn up, then there is absolutely no scope of an appeal
from the judgment i.e. No appeal lies against the judgment, if the decree is not formally drawn
upon the judgment.

2. Adjudication: It means judicial determination of the matter in dispute. Hence, if the decision is
of administrative in nature, then it cannot be considered as a decree. The adjudication must be about
any or all of the matters in controversy in the suit. The court should resolve the matter of
controversy through its own, by applying the facts and circumstances of the case therein.
The Supreme Court in Madan Naik v. Hansubala Devi, held that if the matter is not judicially
determined then, it is not a decree. Also, in Deep Chand v. Land Acquisition Officer, the apex court
held that the adjudication should be made by the officer of the Court, in absence of which it is ought
not to be recognized as a decree.

3. Suit: The Adjudication must have been given in a suit, which is commenced by filing a plaint in
a civil court. Without a civil suit there lies no decree. However, there are several specific provisions
which enable certain applications to be treated as suits such as proceedings under the Hindu
Marriage Act, the Indian Succession Act, the Land Acquisition Act, etc. They are regarded as
statutory suits and the decision given there under are decrees.
In Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway Co.
Ltd., their Lordship of the Privy Council stated that the word ‘suit’ ordinary means, a civil
proceeding instituted by the presentation of a plaint.”

4. Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights.
Similarly, the parties to the rights in controversy should be the plaintiffs and defendants and, if an
order is passed upon the application made by a third party who is a stranger to suit then it is not a
decree. It must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit.
An order rejecting the application of a poor plaintiff to waive the court costs is not a decree because
it does not determine the right of the party in regards to the matters alleged in the suit. Dismissing a
suit for default in appearance of the plaintiff is not a decree. However, dismissing a suit on merits of
the case would be a decree.
The disputed matter should be the subject matter of the suit, regarding which the relief is sought.
Any question regarding the status and characters of party suing, the jurisdiction of the court,
maintainability of suit or any other preliminary matter is covered under this subject.

5. Conclusive Determination: The decision must be one which is complete and final as regards the
court which passed it. This means that the court will not entertain any argument to change the
decision i.e. as far as the court is concerned; the matter in issue stands resolved. For example, an
order striking out defense of a tenant under a relevant Rent Act, or an order refusing an adjournment
is not a decree as they do not determine the right of a party conclusively. An interlocutory order
which does not finally determine the rights of parties is not considered as a decree. On the other
hand, out of several properties in issue in a suit, the court may make a conclusive determination
about the ownership of a particular property. Such a conclusive determination would be a decree
even though it does not dispose off the suit completely.
The Calcutta High Court in Narayan Chandra v. Pratirodh Sahini, held that the determination
should be final and conclusive regarding the court which passes it.

Types of Decree
The Civil procedure code recognises three kinds of decrees
a) Preliminary decree
b) Final decree
c) Partially preliminary and partially final decree

A. Preliminary Decree
A decree is identified as a preliminary decree when an adjudication decides the rights of parties
regarding all or any of the matter in dispute but it does not dispose of the suit completely. In simple
terms, the preliminary decree is passed when the court is compelled to adjudicate upon a certain
matter before proceeding to adjudicate upon the complete dispute. It is considered to be only a
former stage. As held in the case of Mool Chand v. Director, Consolidation, a preliminary decree is
only a stage to work out the rights of parties until the matter is finally decided by the Court and
adjudicated by a final decree.

A preliminary decree can be passed by the court in the following suits as provided by the Code of
Civil Procedure, 1908
Order 20 Rule 12: Suit for possession and Mesne profit
Order 20 Rule 13: Administration Suits
Order 20 Rule 14: Suits of pre-emption
Order 20 Rule 15: Suit filed for dissolution of a partnership
Order 20 Rule 16: Suits related to accounts between the principal and agent Order 20 Rule 18: Suit
for partition and separate possession
Order 34 Rule 2: Suits related to the foreclosure of a mortgage Order 34 Rule 4: Suits related to the
sale of the mortgaged property Order 34 Rule 7: Suits for the redemption of a mortgage
However, in Narayanan v. Laxmi Narayan AIR 1953, it was held that the list given in code is not
exhaustive and a court has the right to pass a preliminary decree in cases not expressly provided for,
within the code.

Illustration: A files a partition suit against B. During the proceedings, the Court passes a preliminary
decree on the share of A and B. Subsequently, after hearing both the parties and the arguments
contended by both, the court passes a final decree adjudicating upon the said partition.

B. Final Decree
A decree is recognised as ‘final’ when it disposes of the suit completely, so far as the court passing
it is concerned. A final decree settles all the issues and controversies between the parties to the suit
by the court of law. Consideration of final decree depends on the facts the following facts
No appeal was filed against the said decree within the prescribed time period. The disputed matter
in the decree has been decided by the highest court.
When it completely disposes off the suit.
Primarily, a civil suit contains only one preliminary and one final decrees. However, in Gulusam
Bivi v. Ahamadasa Rowther, the Madras High Court in the light of Order 20 Rule 12 and 18 stated
that the code nowhere contemplates more than one preliminary or final decree. Reinforcing this
observation, the Supreme Court in Shankar v. Chandrakant, finally settled the conflict of opinion
and stated that more than one final decree can be passed in a single suit.

C. Partly preliminary and partly final decree

A decree shall be held as partly preliminary and partly final, when it determines certain disputes but
leaves the rest open for further decision. What is executable is a final decree and the one which is
not executable is a preliminary decree, unless it merges with the final one.

Illustration: ‘A’ filed a suit for the recovery of possession of a property from B. The court passed a
partly preliminary and partly final decree. So far as final decree is concerned if the court granted
possession of the suit property to A; and it was preliminary as even though mesne profits were
awarded. In this case, only the granting of possession of property to A will be executable; however,
preliminary decree will be executable only after the amount due is determined.
Amendment of Decree
On an application by the Plaintiff or the Respondent, under Section 152 of the Civil Procedure
Code, any clerical errors in the decrees can be changed or corrected by the courts themselves.
However, the entitled corrections shall be only be related to the accidental omission or clerical
errors and not any other errors, which may result in gross negligence. Before the execution of such
correction by the courts, it must be satisfied and validly proven that the error was nothing more than
a clerical one or an arithmetical one.

Decree Holder
Under Section 2(3) of the Civil Procedure Code, any person in whose favour a decree or an order
capable of execution has been passed, he/she is referred to as the Decree Holder. Accordingly, any
decree passed in favour of a person who is not even a party to the suit shall also be considered as
the Decree holder under the code.
 Arrest and detention
INTRODUCTION
To determine the rights and obligations of the parties involved in a disputed matter, the court
issues a decree in accordance with the Code of Civil Procedure (henceforth referred to as
CPC). A judgement debtor is the individual against whom a decree is passed, while the
person in whose favour the decree is passed is referred to as the decree-holder. A decree may
be issued in a number of ways under civil law. "Arrest and detention" is one method of doing
this. Sections 51 to 59 and Rules 30 to 40 of Order XXI address the laws related to arrest and
detention under the CPC.
WHEN CAN AN ORDER FOR ARREST AND DETENTION BE MADE?
According to Section 51(c) of the CPC, the court may execute a decree by arresting and
detaining the judgement debtor when a decree-holder moves to have the decree executed.
Under Order XXI, the following situations may result in an order for arrest and detention:

 Rule 30 allows for the arrest and incarceration of the judgement debtor in order to
carry out a financial decree.
 Rule 31 states that the judgement debtor may be arrested and detained in order to
carry out the decree in cases where it is for a specified moveable party.
PROCEDURE TO BE FOLLOWED
Section 55 outlines the process that must be followed for both an arrest and a detention. It
states that during the execution of a decree, a judgement debtor may be arrested at any time
of day or night and that following an arrest, the individual shall appear before the court.
There are, however, some time and admission limits.
They are as follows:

 No one shall enter a dwelling house prior to sunrise or after dusk.

 that unless the judgement debtor occupies the home in question and refuses to grant
access, no outside door may be damaged in order to gain entry.
 The officer is required to provide a reasonable amount of time and space for a woman
who is not the judgement debtor and does not appear in public because of customs to
vacate the room.
 In cases when a financial decree is in place and the judgement debtor pays the
arresting officer's fees in addition to the entire decree amount, they will not be placed
under arrest.

CASE: Vemanarayana v. Sakku Bai

 Section 51 of the Code of Civil Procedure listed arrest and detention as one of the
methods of enforcing the decree. However, the proviso to the section offers a
safeguard in favour of the judgement debtor when the aforementioned mode is
employed. As a precaution, the judgement debtor must be given a chance to
explain why he shouldn't be imprisoned. The proviso continues by enumerating
 the several considerations that the judge must make before directing the execution
by arrest and incarceration. These are the contributing factors:

NOTICE
A person who is about to be arrested is required by Order XXI Rule 37 to present before the
court and provide justification for not being sent to a civil prison as part of the decree's
execution. However, if the court is convinced—by affidavit or otherwise—that the judgement
debtor may flee from the jurisdiction if the execution is delayed, then such notification is not
required. If the decree-holder requests it, the court will issue a warrant for the judgement
debtor's arrest if, following notice of the court order, they fail to appear in person.

PERIOD OF DETENTION U/S 58

A person can be detained for a maximum of two years, depending on the amount of the court
order against him and whether or not he has paid the decreed amount, according to Section
58. It specifies that a person cannot be held for longer than three months if the decretal sum
exceeds five thousand rupees, and that a person cannot be held for longer than six weeks if
the amount between two and five thousand rupees is involved. If the total is less than two
thousand rupees, no order for the judgement debtor's detention may be issued.
Serving notice has the purpose of keeping an honest debtor who is unable to pay their debt
because of a legitimate reason out of custody and out of jail. The act of granting notice for
cause is an acknowledgment of the natural justice principle that no one shall be condemned
without a trial.
Order XXI Rule 40 states that if the person shows up in court following the notice given
under Rule 37, the court will hear the decree holder's request for the decree's execution and
then give the judgement holder's request for an opportunity to explain why he shouldn't be
arrested.
CASE: Mayadhar Bhoi v. Moti Dibya
the court ordered the judgement debtor to provide an affidavit detailing the specifics of his
assets if he had not paid the money decree within thirty days of the order's issuance. If the
debtor disobeyed the order, he could face a three-month detention.
POWER AND DUTY OF THE COURT
According to Section 55, if a judgement debtor is arrested in the execution of a decree for
payment of money and is brought before the court, the court will notify him to declare
himself insolvent. If he complies with the then-current insolvency law and has not committed
any acts in bad faith pertaining to the subject of the application, he may be released from
custody.

Order XXI Rule 39 states that a judgement debtor cannot be arrested for the purpose of
carrying out the decree unless the person who is the beneficiary of the decree deposits money
with the court in an amount determined by the judge to cover the debtor's living expenses
from the time of the arrest until he is taken before the court. And where such person is
committed to the civil prison, the court shall fix the subsistence as a monthly allowance
according to Section 57, or where such scales are not fixed, the court shall fix as it considers
sufficient for that class of the person.
CASE: 1. Amulya Chandra v. Pashupati Nath
The a judgement debtor may be detained even when he has the wherewithal to pay the
decretal sum. But, it needs to be determined if this person can afford the payment and is acting
dishonestly if they decline to do so.

2. Jolly George Verghese v. Bank of Cochin

where Justice Krishna Iyer stated that a simple default is not enough, there must be an
element of bad faith beyond mere indifference to paying; some deliberate refusal or the
present means to pay a decree or a substantial part of it.
ARREST BEFORE JUDGMENT
Under rules 1 to 4 of order 38 of the code, provision has been made for arrest before
judgment.
A.) Demand for security- when at any stage of the case, if it appears from the affidavit of
the court or otherwise that the defendant with the intention of:
I. delaying the trial of the suit;
II. avoiding the order of the court;
III. creating obstacles in the execution of the decree being passed against him:
 has run away
 about to run away
 has left the jurisdiction of the court; or
 about to leave the jurisdiction of the court; or
 remove the property from the jurisdiction of the court; or
 has consumed the property or
 about to leave India so that delay or obstacle may be caused in the execution of
the decree.
Then the court will issue warrant of arrest with the intention that he should be brought before
the court and he should explain as to why he should not give security to the court for his
appearance.
If the defendant presents himself in the court and assures the court that he is willing to give
security or deposits the amount of claim of the plaintiff in the court, he will not be arrested
and the warrant of arrest will be cancelled. (order 38, Rule 1).
B.) Procedure when be becomes unsuccessful in giving security- if the defendant remains
unsuccessful in giving the desired security then under Rule 4, order 38, the defendant
will be put to civil prison till:
 The case is decide finally; or
 If the decree has been passed against the defendant, the decree is not satisfied.
CASE: M/s Chelsia Mills V/s M/s Choras girl, A.I.R. 1991, Delhi 129
It is to be mentioned here that in case of suits instituted under section 16 of the code, no order
of arrest can be passed before judgment in the following cases:
 suit for re-possession of immoveable property;
 suit for partition of immoveable property;
 suit of prohibition or redemption or for redemption of mortgage of such immoveable
property;
 suit for acquiring rights for benefits in any immoveable property;
 suit for sale of immoveable property; and
 Suit for creating charge on immoveable property. (Order 38, Rule 1 and section 16).

CONCLUSION
Arresting and detaining a debtor in civil prison for failing to pay a decree amount, even
though they have the means to do so, is meant to provide relief to the decree holder. It does,
however, also shield honourable debtors whose incapacity to make payments is justified. To
guarantee proper justice, the court must grant the debtors the opportunity to be heard.
The provision is a remedial action. Its goal is to provide the decree-holder with a remedy
following a suit outcome that is in his advantage. Arrest and incarceration are examples of
remedies that may be used if the judgement debtor disobeys the decree imposed against him.