1. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule   3 - Dismissing third party objection in execution petition - Impugned order has the same force as a decree and is subject to the same conditions as to appeal or otherwise - Consequently, the impugned order is appealable and therefore, the instant revision petition is not maintainable. (173) P.L.R.
  2. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  10(3) - Where the Court for any reason is dis-satisfied with the proceedings of the Commissioner, it may direct such further enquiry, as it may think fit - In the case in hand, once the report of the Local Commissioner produced in the Court was not found to be satisfactory, as the dimensions mentioned therein did not match with the revenue record, in my opinion, the learned Court below should have examined the Commissioner in Court to get things clarified or may have appointed a new Local Commissioner - Let the needful be done.  (180) P.L.R.
  3. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  13, 66 - Proclamation of sale - That no doubt that the proclamation ought to have specified fairly and accurately the tenancy in view of Order 21 Rule 66(2)(e) which requires every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property to be specified - Clause (e) is of the widest amplitude and everything which affects the value of the property must be specified/disclosed - It can hardly be suggested that the value of a property is not affected by a tenancy created in respect thereof.  (182) P.L.R.
  4. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  16 - If a third party claims to be an assignee or transferee of the decree - If in this case the property is purchased which was a subject matter of previous suit he obtains such interest as an assignee - The decree could be executed subject to some conditions as if the application had been made by the decree holder. (174) P.L.R.
  5. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  22 - Court was duty bound under Order 21 Rule 22 CPC to issue notice and to give an opportunity to the judgment debtor to clear off the dues and if there was any attachment, the same would be then vacated - Proclamations notice which has been sent by the Executing Court to the Tehsildar, Samana dated 27.01.1995 also does not show any valuation of the land and how much of it would be sufficient to satisfy the decree - The sale of a huge chunk of property to satisfy a paltry amount - Is apparently suffering from material illegality and irregularity. (179) P.L.R.
  6. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  24 - Court has not been even informed one bit that there was any serious apprehension of law and order at the site and that the delivery was not possible to be effected without securing police assistance - The decree holder literally allowed himself a free hand to decide on police assistance and the revenue official's munificent interventions and did not so much wait for securing court direction - What has transpired between 19.08.2013, when the warrant was issued to the  bailiff till the date when delivery was said to have been effected on 11.10.2013, have been without court's directions and wholly by the interventions of the Kanungo, of the SDO, of the Deputy Commissioner and of the Commissioner at the level of the bailiff himself - This is rather a dangerous way of securing execution with the police taking an active part with no direction from the court and the police taking orders from the Executive Magistrate for execution of the civil court decree - Delivery in the manner done was gross excess and impermissible. (175) P.L.R.
  7. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  29, Order 41, Rule 5 Sub Rule (1) - Executing Court may stay the execution of the decree if the JD has filed any suit against the decree holder - But the petitioner-JD has only preferred the regular second appeal against the decree under execution - Mere filing of an appeal will not operate as stay of proceedings for the execution of the  decree under appeal - It is only the appellate Court which can stay the execution of such decree. (183) P.L.R.
  8. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  29 - Suit specifically provides for a relief of recovery of possession and identification of the property which was required to be delivered to the plaintiffs by reference to a site plan - In this case the judgment debtor has himself purchased the property only from one of the decree holders and therefore, he cannot compel the decree holder to avail of the remedy for partition - On the other hand, as a judgment debtor he is bound to surrender possession of the property in respect of which the decree has been passed and it would be left to him to work out his remedy for  partition. (173) P.L.R. 8
  9. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  32 - Failure to supply documents as per order of Company Law Board - Petitioners were given ample opportunity by this Court to obey the decree, and yet they have still consciously failed to act on it - In such circumstances, according to the language employed by the provision and upheld by Courts on various occasions, it seems just and in accordance with law that the defaulters are ordered to be detained in prison. (183) P.L.R.
  10. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  32 - Once decree stands violated it is required to be enforced - Decree has been passed whereby the respondents have been restrained from interfering in possession of Khasra Numbers mentioned  therein - A decree can be enforced by attachment and sale of property of the judgment-debtors and civil imprisonment - Rule 32 does not prohibit the trial court to issue direction to the judgment-debtors to remove the obstructions, which they would have created in violation of the decree and even the possession can be restored - The court can enforce a decree by issuing appropriate  order. (173) P.L.R.
  11. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  32(1) - Mode of execution of decree of injunction - It is only after he had willfully disobeyed the order of injunction, that the order of attachment of his property or his civil detention in the civil prison can be passed.  (180) P.L.R.
  12. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  37 - Before forming an opinion of warrant of arrest, show cause notice was required to be served, accordingly the impugned order is hereby set aside.  (182) P.L.R.
  13. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  37 - Warrant of arrest - Envisaged on an application received by the court seeking execution of the money decree, before issuing the warrant of arrest, the trial court was enjoined upon an obligation to issue a show cause notice, in case the judgment debtor does not pay the decretal amount. (182) P.L.R.
  14. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  41(2) - Applicability - Order requires the appellants herein to file affidavits of their assets in Form 16A, Appendix E under Rule 41(2) of the Code of Civil Procedure, 1908 - It is important to note that the petition filed by the respondent herein was one under Section 9 of the Arbitration & Conciliation Act, 1996 for interim measures - It was not an application seeking execution of any decree - In fact, there is no question of there being any decree inasmuch as even the Arbitral Tribunal has not yet passed any award - Therefore, clearly, Order 21 Rule 41(2) CPC is inapplicable in this case - The heading of Rule 41 of Order 21 itself discloses that it pertains to the examination of a judgment debtor as to his property - Rule 41(2) is applicable where a decree for the payment of money has remained unsatisfied for a period of 30 days - This is not the case here - Therefore, the provisions of Order 21 Rule 41(2) of the CPC are inapplicable and, consequently, the requirement of the appellants to furnish affidavits in Form 16A, Appendix (C) CPC is without the authority of law. (180) P.L.R. (Del.)
  15. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  43 - Appeal is pending adjudication and the same has to be decided as per the provisions of Order 21 Rule 103 CPC, the Lower Appellate Court ought to have assigned the reasons in declining the interim stay - Since the impugned order is lacking reasons, therefore, the same is not sustainable in the eyes of law and accordingly the same is set-aside to the extent of declining the stay - The Court, while dealing with such matters, is expected to give reasons in declining the application, failing which a valuable right, which is sought to be infringed, would be taken away and the same should not be allowed to go unnoticed, much less under the nose of the court. (183) P.L.R.
  16. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  58, 99, 101, 103, 104 - Plea that decree holder had not impleaded the effected party who has raised construction of the shop on the land for which the decree has been passed and in execution of the decree his possession is taken, accordingly objection petition had been filed which, has summarily been dismissed - Petitioner-objector has wrongly invoked the provisions of Order 21 Rule 58 CPC by filing objections whereas it should have been filed under Order 21 Rule 99 - Consequently, the procedure for trying the objections is prescribed was required to be filed under Order 21 Rule 101 - As per Order 21 Rule 103 and 104 it has been statutorily provided that the dismissal of the objections would be a decree and against the decree, appeal would lie before the first appellate court which in the eyes of law could have been entertained.(181) P.L.R.
  17. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  58 - It clearly appears from the facts mentioned in the objection petition that there are no issues or material aspects to be adjudicated upon - There is no vested right of the objector that the executing court must frame issues for deciding their objections.      (177) P.L.R.
  18. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  58 - Order 21 Rule 58 CPC, is a manner of adjudication of claims by third parties to suit - The decision rendered under Order 21 Rule 58 by virtue of Clause 4, is in the nature of the decree which is appealable - Order 21 Rule 97 to 99 CPC deal with the situations where the decree holder has a right to have the obstruction removed and if there is an obstruction given by the person who is not judgment debtor or a person claiming under him, the Court is bound to adjudge on the right of the objector and a decision that is passed will be treated as a decree under Order 21 Rule 101 CPC, in the same manner as Order 21 Rule 58 CPC declares.  (179) P.L.R.
  19. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  64 - Order under Order 21 Rule 64 of the CPC cannot be challenged by way of a writ petition under Articles 226/227 of the Constitution of India.  (180) P.L.R.
  20. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  64 - Schedule of sale of property - Petitioner are neither the owners nor purchasers nor persons in possession of the property in question - Therefore, they cannot be heard to make a grievance against the impugned order issuing schedule of sale thereof.  (180) P.L.R.
  21. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  66 - Being members of the joint family have common office - Notice was duly served - Objections have been filed after the conclusion of auction - The objections could have been filed at the commencement of the proceedings i.e. before auction - The objections under Order 21 Rule 90(3) CPC could have been filed on or before the auction and no objection can be taken into consideration at the confirmation of the sale - The confirmation has already been done - Sale of such nature is duly protected and the auction purchaser cannot be compelled to return the property - Since the Executing Court cannot go beyond the decree whatever relief is available to the judgment debtor is available in the proceedings under order 9 Rule 13 CPC - It is only for the objectors to come forward by way of resorting to lawful procedure either to move an application under Order 9 Rule 13 CPC or to raise objections at the earliest in the objection. (182) P.L.R.
  22. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  84 - Deposit by purchaser - Provides that the money has to be paid on the date of auction to the extent of 25% - The fact as to whether the money was paid or not, as required in the aforesaid provision, has to be proved by leading cogent evidence but the petitioner is only relying upon the affidavit of the Tehsildar without there being any proof of recording the said fact by Tehsildar in the auction proceedings - Failure to prove deposit - The sale was not completed. (176) P.L.R.
  23. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  89, 90, 91, 92 - Setting aside of auction sale - In order to maintain objection in terms of Order 21, Rule 89, Rule 90, Rule 91 and Rule 92 CPC, deposit of 5% of the total sale consideration is a condition precedent for maintaining the objection and this was sine-qua non for submitting the application before the Court - Mandatory requirement has not been complied with by the objector as per requirement of law. (180) P.L.R.
  24. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  89, 92 - Limitation Act, 1963 (36 of 1963), Article 127 - Court sale - Objections by judgment-debtor - In absence of required deposit made by the judgment-debtor within the time mandated by law, such an exercise would be only an exercise in futility because the Executing Court does not have any option but to reject the petition - Application to be filed within 60 days - Time to make the deposit and for making the application would be the same. (S.C.)(177) P.L.R.
  25. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  89, 92(2) - Order 21 Rule 92 of the CPC because Order 21 Rule 89 of the CPC provides that where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court for payment to the purchaser, a sum equal to five per cent of the purchase money - However, Order 21 Rule 92(2) of the CPC provides that such an application has to be filed within a period of 60 days from the date of sale. (178) P.L.R.
  26. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  89, Order 21, Rule 66 - Court has recorded its satisfaction that it was a clerical mistake committed by the judgment debtor whereby he calculated 5% of the amount on the decretal amount instead of 5% on the purchase money, otherwise, he would have deposited the remaining amount and would not have taken a chance of not depositing the deficient amount - Satisfaction of the Court is sufficient for the purpose of holding that there is an error of omission on the part of the judgment debtor that instead of 5% on the purchase money, the calculation has been made on the decretal amount. (177) P.L.R.
  27. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  90, Section 47 - Plea that property not been properly valued and the description was also not correct in omitting to make reference to a superstructure adjoining the main road - If the buildings existed at the time of sale and they were demolished after sale at the time of demolition, there was a very serious prejudice - Matter remitted to executing Court to give evidence about the nature of property sold, whether they contained buildings/shops and permit the photographs to be brought with appropriate evidence and prove the same in the manner required by law - The remand is for consideration of whether the auction sale was not merely an irregularity but constituted a fraud by deliberate mis-description and hence void - The enquiry will be as under Section 47 CPC and the order that will be passed after affording an opportunity to the decree holder and auction purchaser.  (182) P.L.R.
  28. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  90 - Auction sale - Setting aside of - Court has power to set aside auction sale on deposit of required amount by judgment debtor, but such powers are discretionary and are based on sound principle of law - Such a discretion can be exercised if after the auction sale and confirmation thereof, the judgment debtor immediately deposits the amount on first opportunity. (180) P.L.R.
  29. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  90 - Irregularities under Order 21, Rule 90 CPC must be specifically made out with sufficient particulars. (180) P.L.R.
  30. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  90 - Mere establishing material irregularity or fraud is not sufficient unless and until objector establishes that material irregularity or fraud has resulted in substantial injury to the objector. (180) P.L.R.
  31. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  95 - Application for delivery of possession is to be filed within one year - Sale was confirmed and the application for delivery of possession was filed within the period of limitation - For all intents and purposes the application could not be discarded on the question of limitation - Object of subsequent application for execution was to revive application filed previously and which was still pending - Hence, subsequent application must be regarded as continuation of proceeding started on prior application made before the amendment - Subsequent application for execution was held not to be barred by limitation.  (182) P.L.R.
  32. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  97, 102 - Objector was seeking for his right to be upheld on the basis of a decree obtained by him from the judgment debtor, namely, his father and therefore as a transferee of the property through a decree during the pendency of the instant suit, even his objection under Order 21 Rule 97 would required to be discarded by virtue of Order 21 Rule 102 CPC which bars any pendente lite transferee from causing any obstruction - If the objection must be taken as objection under Section 47 and the decision upholding the objection could have been assailed, only revision would have been possible.  (179) P.L.R.
  39. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  97, 104 - Order 21 Rule 104 makes any order passed under 101 or 103 to be subject to result of a pending suit - Indeed, the suit for injunction and suit for possession were pending on the day when the application was filed by the judgment debtor before the District Court - By the very nature of things, any order that is passed by the District Court under Order 21 Rule 97 CPC or in any revision against such an order to this Court or upto the Supreme Court must necessarily be suborned to a civil court adjudication. (175) P.L.R.
  40. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  97, 99 - Appeal at the instance of the judgment debtor against the dismissal of the objections filed under Order 21 Rules 97 and 99 of the CPC is not maintainable - Judgment debtor is not a third party, whereas, the provisions aforementioned of CPC apply to third person, who, cause obstruction for taking possession and shows resistance.  (183) P.L.R.
  41. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  97 - Objection at the stage of execution by any person claiming under judgment-debtor is bound to be rejected. Held, that the law frowns upon any objection by a judgment debtor at the stage of execution and this stringent approach through a provision of law will a fortiori apply to a subsequent alienee as well. Order 21 Rule 97 CPC allows for a decree holder to get an order from the court to remove any obstruction caused by a person from obtaining possession of property and enquiry that the court will consider will be only from a person who is a person claiming independent right from the judgment debtor. It is evident from the fact that a right to object through an obstruction by a pendente lite purchaser is expressly barred by virtue of Order 21 Rule 102 CPC. Order 21 Rule 98(2) CPC also makes it clear that if the obstruction is brought at the instance of a judgment debtor or by a transferee, where such transfer was made during the pendency of suit, it shall direct the applicant (decree holder) to be put in possession of the property and if the applicant is still resisted or obstructed, the court may direct such a person to be detained in civil prison. A subsequent purchaser who would have right of hearing before the decree is passed or when a decree was in challenge before the appellate court is not a person who could be heard in the light of the express bar found under Order 21 Rule 98(2) CPC. The court will be completely derailing the cause of justice and will engage itself in futile exercise by allowing a subsequent purchaser in entering into adjudication of the alleged bona fides of the purchase.  (183) P.L.R.
  42. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  97 to 103 - Power of executing court - Land acquisition - If a third party has a right in the money which has been awarded by the Court, it shall be only under an adjudication made under Section 30 of the Land Acquisition Act - A reference under Section 30 is a right which a person can obtain on an objection taken when the award was made by the Collector - The reference again shall be made only by the collector and cannot be applied by an executing court through any flat that reference must be made under Section 30 - Executing Court shall stay within confines to execute the award against the judgment debtor for a money which is already assessed by the court - Land Acquisition Act, 1894 (1 of 1894) S. 30. (173) P.L.R.
  43. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  97 to 106 - Person acquiring right in the disputed property during the pendency of litigation has no right to resist or obstruct execution of decree/order passed by a competent Court - The doctrine of lis pendens applies and it is treated as a constructive notice to the person acquiring any right during the pendency of lis who is, therefore, bound by a decree/order passed in the pending suit/proceeding. (175) P.L.R.
  44. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule  97(1), 101, 103 - Order 21 Rule 103 CPC provides that any person claiming title to the property in his possession obstructing attempt by the decree holder to dispossess him from the property conforming subject matter of the execution petition, offering obstruction would be entitled to get his claim adjudicated under Order 21 rule 101 CPC - The order passed by the Executing Court under Order 21 Rule 103 CPC is to be treated as a decree and such an adjudication is appealable - Revision petition is dismissed being not maintainable. (180) P.L.R.
  45. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule 101 - Execution of decree - Third party making objection at the stage of execution that she has herself filed an independent suit to seek for assertion of her right and for injunction against the present respondents - It shall be open for her to secure an order of injunction in the Court before which she has filed a suit against the respondents from interfering his possession by proving what are usually to be done in an application under Order 39 Rules 1 and 2 of the CPC - The petitioner in her independent suit will prove her prima facie  case, her possession and a better right over the defendants to hold her possession and secure the relief for injunction. (182) P.L.R.
  46. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule 102 - Appellant has raised the plea that she is a bona fide purchaser for consideration without notice of litigation between the respondents - The plea raised by the appellant has been rightly rejected by the courts below by taking into consideration the provisions of order XXI Rule 102 CPC - Transfer of property in favour of the appellant is after the institution of the suit rather after passing of the decree. (183) P.L.R.
  47. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule 102 - Decree - Objections as to - A third party to the decree who offers resistance can proceed under Order XXI of the Code if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of decree - No doubt if the resistance is made by objectors acquiring rights during the pendency of the proceedings from the judgment debtor, the scope of adjudication would shrink to the limited question as to whether such transferee has any right to resist - When on its face, objections are found to be frivolous, no issues are required to be framed. (175) P.L.R.
  48. Civil Procedure Code, 1908 (V of 1908) Order 21, Rule 102 - Objection by 3rd party - Person that causes an objection is a 3rd party and claims a rival sale from the judgment debtor - The obstruction of what is required to be adjudicated in proceedings under Section 21, 97 to 99 carry an important exception through Order 21 Rule 102 CPC to bar pendente lite transactions to be adjudicated - If that right is however, sourced to an earlier agreement and set up in the obstruction petition to the plaintiff's own agreement - Court is required to examine whether there existed any oral agreement of sale in the manner contended by the 3rd party objector - There is no requirement in law that agreement must be written in the first place - All that is necessary for a contract of sale is an offer and acceptance, the foundational basis for any contract.      (180) P.L.R.
  49. Civil Procedure Code, 1908 (V of 1908) Order 21 - Execution sale - Notice was duly served - It cannot be said that the auction was conducted in clandestine manner - DH was also granted permission to take part in the auction because nobody else might be coming forward to bid in the auction - In these circumstances, whatever market value was fetched at the auction has to be accepted - Here it may be noticed that in public auction in execution proceedings, the property never fetches market value because the purchaser is not sure if he would at all be successful in getting property even after paying the auction money and if so after how many years or decades - Confirmation of the sale takes long time - Moreover, JDs were at liberty to bring better buyer/bidder. (173) P.L.R.
  50. Civil Procedure Code, 1908 (V of 1908) Order 21 - The presence of judgment debtors through warrants of arrest executable by the police is aggravated action which could be avoided and insisting on the order to operate would not serve the ends of justice as the executing court will have all power to execute the decree in terms of the procedural and substantive principles laid down under Order 21 CPC and its relevant rules. (176) P.L.R.
  51. Civil Procedure Code, 1908 (V of 1908) Order 21 - Where tenant undertook to pay increase rent subject to conditions and improvement - Admittedly the said improvements/repairs have not been carried out by now - So, there was no question of payment of enhanced rent - The reasons for non-construction/improvements may be more than one because both the parties are attributing non-compliance to each other.   (182) P.L.R.


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