TOPIC - IV

LIMITATIONS FOR SEVERAL APPLICATIONS DURING EXECUTION

S.No Name of the Officer & Designation Page

Number 1. Sri T.Mallikharjuna Rao, VI Addl. District Judge, Machilipatnam 1-7

2. Sri S.Venkata Prasad, XV Addl. District Judge, Nuzvid 8-9

3. Smt. Indira Priya Darshini, IV Addl. Chief Metropolitan Magistrate, Vijayawada

10-15

4. Smt. P.Lakshmi Kumari, Principal Junior Civil Judge, Nandigama 16-21

5. Sri P.Koteswara Rao, VI Addl. Junior Civil Judge, Vijayawada. 22-29

6. Smt. M.Sandhya Rani, I Addl. Junior Civil Judge, Vijayawada. 30-36

7. Sri C.K.V.Satyakanth Kumar, I Addl. Junior Civil Judge, Nuzvid. 37-43

8. Smt. S.Vara Lakshmi, Junior Civil Judge, Mylavaram. 44-46

9. Smt D. Sony, Spl. Judl. Magistrate of I Class for trying Pro.,& Excise cases, Machilipatnam.

47-60

1

Presented by: Sri T. Mallikarjuna Rao VI-Addl. District Judge, Machilipatnam.

MEANING:

The term “execution” has not been defined in the code. Execution is the

last stage of any civil litigation. There are three stages in litigation:

1. Institution of litigation.

2. Adjudication of litigation.

3. Implementation of litigation.

Implementation of litigation is also known as execution. Implementation of a

decree will be done only when parties have filed application in that regard. If a

party is not approaching court, then it has no obligation to implement it

suomoto. The expression “execution” means enforcement or implementation

or giving an effect to the order or judgment passed by the court .

Supreme Court in a decision reported in (1991) 4 SCC 379

Ghanshyam Das v. Anant Kumar Sinha dealing with provision of the code

relating to execution of decree and orders, stated, “ so far as the question of

executability of a decree is concerned, the Civil Procedure Code contains

elaborate and exhaustive provisions for dealing with it in all aspects. The

numerous rules of Order 21 of the code take care of different situations

providing effective remedies not only to judgment-debtors and decree-holders

but also to claimant objectors, as the case may be. In an exceptional case,

where provisions are rendered incapable of giving relief to an aggrieved party in

adequate measures and appropriate time, the answer is a regular suit in the

civil court.

PROCEDURE ON APPLICATON FOR EXECUTION:-

An application for execution must be in writing except when an oral application

is made under Order XXI, Rule 11 (i). Upon an application for execution being

filed, the Court shall scrutinize it to see that all the requirements of Order XXI,

Rules/11(2),12, 13 and 14 of the Code of Civil Procedure, 1908, have been duly

complied with. The application should state distinctly the mode in which the

assistance of the Court is sought and the proceedings should be confined to

that mode, unless any amendment has been allowed.

“Rule 12 of Order 22 of CPC is envisaged to be of benefit to a decree

holder. When execution proceedings are pending, on account of death of party

to proceedings, it does not abate. The parties are entitled to be impleaded when

execution proceedings are pending. There is also no bar to file fresh application

for execution also.”

“A judgment-debtor need not wait for the decree holder to take out

execution . As soon as the decree is passed, or at any time thereafter, the

judgment-debtor can himself pay the money due under a decree : but this has

2

to be done in any one of the three modes mentioned in Or. XXI, R-1 (1) . Now,

the law says further that if money is paid or adjustment of decree of any kind is

arrived at outside the Court, it should be promptly got recorded and certified as

contemplated by Rule 2 of Order 21. This can be done either by the judgment-

debtor or by the decree-holder. The application filed by the judgment-debtor

should also be within 30 days from the date of the respective payments to have

the adjustment recorded. If no such application is filed within the prescribed

time, the Executing Court has no jurisdiction to enquire into the same.

“Art.125 of the Limitation Act provides a period of 30 days for applying to

the Court for recording an adjustment or satisfaction of the decree, from the

date of payment or adjustment. There is no provision for extending the said

period. Since by virtue of sub-rule (3) of R.2 of O XXI “a payment or

adjustment, which has not been certified or recorded as aforesaid (in

accordance with R. 2) shall not be recognized by any Court executing the

decree”.

A judgment in Mahanarayana Vs Vasudev 1959 ALT 866 considered

the scope and effect of Order XX R 11 and it is the direct authority for the

proposition that only the Court which has passed the decree is competent to

grant instalment and executing Court does not have any such power. Any

application for payment of decretal amount by instalments has to be filed

within 30 days from the date of decree. The party intending to pay the amount

in instalments has to file an application within 30 days from the date of

decree as provided in Art. 126 of Limitation Act (1963).

PERCEPT:-

Section 46- “precept” means a command, an order, a writ or a warrant.

A percept is an order or direction given by court which passed the decree to a

court which would be competent to execute the decree to attach any property

belonging to the judgment-debtor.

Section 46 provides that court which passed a decree may, upon an

application by the decree-holder, issue a percept to that court within whose

jurisdiction the property of the judgment-debtor is lying to attach any property

specified in the percept.

It is an interim attachment of the property which lies outside the

jurisdiction of court which has passed the order. To protect the interest of the

decree holder on his application will issue percept to the court in whose

jurisdiction property is situated to attach the property of the judgment-debtor.

The interim order for attachment is valid for the period of only 2 months.

Proclamation of sale: Rule 66-67 :-

It is a kind of order or declaration. It operates as a public notice

regarding the sale. It says that people can participate in auction and sale.

Proclamation can be in writing or by customary mode.

3

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. A

sale can be conducted immediately if the property is of perishable nature.

Adjournment of sale: rule 69 :-

If the judgment-debtor after the issue of proclamation and before sale,

has paid the amount, or has partly promised to pay on the given date before

completion of public order, if there is any justified reason, in those

circumstances, court has discretionary power to postpone the sale. If it has

been postponed for period of 30 days, fresh proclamation has to be issued and

again the process of rule 67, 68 and 69 will follow.

Limitation:- The law of limitation as regards applications for execution of any

decree (other than decree granting mandatory injunction) or any order of any

Civil case will be found in Article 136 of the Indian Limitation Act, 1963.

Order XXI Rule 89 deals with conditions to set aside sale on deposit: It is

by virtue of Order XXI Rule 89 CPC that an application for setting aside a sale

and a deposit can be made. Order XXI Rule 89 CPC does not prescribe any

period within which the application is to be made or deposit can be made or

deposit is to be made. All that Order XXI Rule 92(2) provides is that if the

deposit is made within 30 days from the date of sale and an application is filed

then the Court would have no discretion but to set aside the sale. That does

not mean that if the deposit is made after 30 days the Court could not

entertain the application. If the deposit is made beyond the period of 30 days,

but within the period of 60 days, then it will be within the discretion of the

Court whether or not to grant the application . Thus, an application can be

made within the period prescribed under Article 127, Limitation Act. As an

application can be made within 60 days and, as stated above, no period for

making a deposit is prescribed under Order XXI R 92(2) the deposit can also be

made within 60 days.

“In Mohan Lal Vs Hari Prasad Yadav and others (1) (1994)4 SCC

177 the Supreme Court has held thus:

“It is settled law that an application to set aside sale under Order XXI

Rule 89 of the Code is governed by Article 127 of the Limitation Act. Section 5

of the Limitation Act has no application on its own wordings”.

The Supreme Court had also considered whether time can be extended

under Section 148 of the Code of Civil Procedure and held that Section 148 of

the Code of Civil Procedure would not be applicable for the reason that the

time for making an application under Rule 89 of Order XXI of the Code is not

fixed by the Court”.

4

According to Order XXI Rule 90 (1) where any immovable property has

been sold in execution of a decree, the decree holder, or the purchaser, or any

other person entitled to share in a rateable distribution of assets, or whose

interests are affected by the sale , may apply to the Court to set aside the sale

on the ground of a material irregularity or fraud in publishing or conducting it.

According to Order XXI Rule 91 the purchaser at any such sale in

execution of a decree may apply to the Court to set aside the sale, on the

ground that the judgment-debtor had no saleable interest in the property sold.

For making an Application to set aside the sale as contemplated under

Rules 89,90 or 91 limitation of 60 days was prescribed under Article 127 of the

Limitation Act from the date of the sale. The provision indicates that the Act

conferred a right upon any person to file an Applictaion even on the last date of

limitation. The Execution Court is not supposed to take further steps for

confirmation of the sale till the expiry of the period of 60 days or till the

application filed under Rules 89,90 or 91 is disposed of. Rule 92 is also

supplementary to Article 127 of the Limitation Act.

RESISTANCE TO EXECUTION:- Resistance by judgment-debtor or by some

person on his behalf or at his instigation - if the holder of a decree for the

possession of immovable property, or the purchaser of any such property sold

in execution of a decree is resisted or obstructed by any person, and the

decree-holder complains of such resistance or obstructions, Order XXI, Rules

97 to 99, prescribed the procedure to be followed. The provision as to the

limitation is contained in Article 129 of the Limitation Act, 1963 which provides

a period of thirty days from the date resistance or obstruction.

The Honourable Apex Court in the case of Brahmdeo Choudhary V/s

Rishikesh Prasad Jaiswal AIR 1997 SC 856 held that, it can not be said

that the only remedy available to the stranger to the decree for possession who

has resisted its execution, to have his claim adjudicated is the one under R 99

of O XXI after he has lost possession to the decree-holder and that he has no

locus standi to get adjudication of his claim prior to the actual delivery of

possession to the decree-holder in the execution proceeding.

It is also held that it is easy to visualize that a stranger to the decree who

claims an independent right, title, and interest in the decretal property can

offer his resistance before getting actually dispossessed. He can equally agitate

his grievance and claim for adjudication of his independent right, title and

interest in the decretal property even after losing possession as per Order XXI

Rule 99. Order XXI rule 97 deals with a stage which is prior to the actual

execution of the decree for possession wherein the grievance of the

obstructionist can be adjudicated upon before actual delivery of possession to

the decree-holder. While Order 21 rule 99 on the other hand deals with the

5

subsequent stage in the execution proceedings where a stranger claiming any

right, title and interest dehors the interest of the judgment debtor. Both these

types of enquiries in connection with the right, title and interest of a stranger

to the decree are clearly contemplated by scheme of Order XXI and it is not as

if that such a stranger to the decree can come in the picture only at the final

stage after losing the possession and not before it even if he is vigilant enough

to raise his objection and obstruction before the warrant for possession gets

actually executed against him.

Provisions of Order XXI lay down a complete code for resolving all

disputes pertaining to execution of decree for possession obtained by a decree-

holder and whose attempts at executing the said decree meet with rough

weather. Once resistance is offered by a purported stranger to the decree and

which comes to be noted by the Executive Court as well as by the decree-holder

the remedy available to the decree-holder against such an obstruction is only

Order XXI, Rule 97 sub-rule (1) and he cannot by-pass such obstruction and

insist on re-issuance of warrant for possession under Order XXI, Rule 35 with

the help of police force, as that course would amount to by-passing and

circumventing the procedure laid down under Order XXI, Rule 97 in connection

with removal of obstruction of purported strangers to the decree.

Once such an obstruction is on the record of the Executing Court it is

difficult to appreciate how the Executing Court can tell such obstructionist

that he must first lose possession and then only his remedy is to move an

application under Order XXI, Rule 99, CPC and pray for restoration of

possession.

It is also held that the view that claim of stranger obstructionist would

only be considered after he has lost possession to decree-holder would result in

patent breach of principles of natural justice. In the case ofSilver line Forum

Pvt Ltd. v. Rajiv Trust and another AIR 1998 SC 1754 held that, “

Resistance or obstruction made even by a third party to the execution of decree

can be gone into under O.21 R.97. Rule 97 to 106 are substantial under the

caption “ resistance to delivery of possession to decree-holder or purchaser.”

Those rules are intended to deal with every sort of resistance or obstructions

offered by any person. Rule 97 specifically provides that when the holder of a

decree for possession of immovable property is resisted or obstructed by “ any

person” in obtaining possession of the property such decree-holder has to

make an application complaining of the resistance or obstruction. Sub-rule (2)

makes it incumbent upon such complaint in accordance with procedure laid

down.

It is also held that all question arising between the parties to a

proceeding on an application under R 97 or R 99 shall be determined by the

6

executing court, if such question are relevant to the adjudication of the

application.

When the third parties are dispossessed in execution of a decree for

possession, they are not barred from filing a separate suit . However, Bar

against filing a separate suit applies only if there is an application filed under

Rule 99 complaining dispossession. Merely because the application under Rule

99 is not a summary proceeding after the Amendment Act of 1976 and

questions relating to right, title and interest in the property can be decided on

such application, aggrieved third party is not deprived to file civil suit to

determine question of possession, challenging dispossession. Order XXI Rule

99 is not a bar to bring an independent suit for possession without filing an

application under the said Rule. (Pavan Kumar Vs. K. Gopalakrishna;AIR

1998 (A.P.) 247).

Applicability of Section 5 of the Indian Limitation Act:-

In a decision reported in Sale Ranga Swamy vs Special Collector-

Cum-Land ... on 20 February, 2004 Equivalent citations: 2004 (3) ALD

83, 2004 (2) ALT 764: It is observed that:-

“there had been an amendment to Rule 106 of Order 21 by way of

adding Sub-rule (4) to Rule 106, applying the provisions of Section 5 of the

Indian Limitation Act, 1963, to applications made under Sub-rule (3) of Rule

106, made by the High Court with the previous approval of the State

Government.

As already noticed, Sub-rule (3) prescribes a period of 30 days to file an

application for restoration. Therefore, now it is clear that by virtue of the said

amendment of the Andhra Pradesh High Court exercising the jurisdiction

under Section 122 of the Code, Sub-rule (4) of Rule 106 enables the Court to

invoke the principles of Section 5 of the Limitation Act and condone the delay

in appropriate cases, implying thereby that any applications pursuant to the

orders passed under Sub-rule (3) of Rule 106 cannot just be brushed aside on

the ground that such applications have been filed beyond 30 days and that

Section 5 of the Limitation Act has no application.”

In view of A.P. State amendment adding sub-rule (4) to Rule 106 of Order

XXI, CPCC, Executing Court is competent to entertain applications filed with

delay to set aside ex parte orders passed under Rule 105 of Order XXI, CPC

and condone delay if it is satisfied with the explanation for delay offered by

party. “State Bank of India vs. Muffar Ali Khan and others; 2004 (6) ALT

17.”

CONCLUSION:-

From the above discussion it clearly appears that execution is the

enforcement of decrees and orders by the process of court, so as to enable the

decree-holder to realise the fruits of the decree. The execution is complete when

7

the judgment-creditor or decree-holder gets money or other thing awarded to

him by the judgment, decree or order.

Order XXI of the code contains elaborate and exhaustive provisions for

execution of decrees and order, take care of different type of situation and

provide effective remedies not only to the decree-holder and judgment-debtors

but also to the objectors and third parties.

8

Presented by: Sri S. Venkateswara Prasad, XV-Addl. District Judge, Nuzvid.

To begin with, Section 5 of the Limitation Act, which permits an

application (or appeal) to be filed beyond limitation, subject to applicant

satisfying the Court that he had sufficient cause for not preferring (the appeal)

or application. However, the same provision of Law bars an application under

Order XXI of C.P.C. which deals with executions.

By virtue of the powers conferred, the Hon’ble High Court added Sub

Clause (4) to Order XXI. Rule 106 making the provisions of Section 5 of

Limitation Act applicable in case of exparte decrees. (ROC.No.2475/80/91

Published in R.S. Part II (Ext) A.P. Gazette No.5 dt.20-01-1992). Hence, in so

far as invoking provision under Order XXI, Rule 105, when an exparte order or

an order dismissing for default is passed, beyond the period of 30 days

prescribed under Rule 106(3), provision under Sub Rule (4) can be invoked

applying Section 5 of Limitation Act.

During execution proceedings under Order XXI C.P.C., we come across

Applications under Order XXI, Rule 58 (claims and objections to attachment),

to set aside sale on deposit by any person interested (R.89), Application to set

aside sale on the ground of irregularity or fraud (R.90), Applications by

purchaser to set aside sale on the round that Judgment Debtor has no saleable

interest (R.91), Resistance or obstruction to possession (R.97) dispossession by

Decree Holder or Purchaser (R.99) etc. Naturally, when such applications are

filed during pendency of Execution Proceedings, the main Execution Petition is

stalled, till they are finally adjudicated (Order XXI, Rules 92, 98, 101 CPC).

While entertaining the above applications, sometimes the question of

limitations comes to picture. Certain conditions are stipulated in case of sales

of immovable properties.

Between conduct of sale and confirming sale and issuance of sale

certificate, while simultaneously adjudicating E.As., the applicant gets a time

stipulation of 60 days from the date of sale. Though it is not specifically

described under Order XXI, Rule 92 C.P.C., Sub Rule (2) of Order XXI, Rule 92

permits deposit of amount within 60 days from the date of sale and an

application is permitted during the above period which has to be adjudicated.

The Court has to invariably wait till 60 days from the date of sale, without

confirming sale. When the deposit is permitted to be made within 60 days,

naturally limitation for filing application is 60 days (2001 (7) SCC 71).

Article 127 of Limitation Act prescribes the period of limitation of sixty

days from the date of sale, for filing application to set aside sale in execution of

decree including any application by Judgment Debtor. This provision has to be

read with Order XXI, Rule 92(2) C.P.C.

9

Executing Court cannot take the step of confirmation of sale without

waiting till the expiry of 60 days time prescribed to file an application to set

aside sale, OR, if such application is filed, till its disposal. (“Gosu Venkata

Sesha Reddy and another Vs. Valluru Krishnaiah Naidu (2005 (4) ALT 238).

Article 127 of the Limitation Act prescribing period for making application

under Rule 89 has no relevance to prescribed time for making deposit (“P.K.

Unni, Appellant Vs. Nirmala Industries” (1990(1) SCJ 36).

For possession after removing resistance or obstruction to delivery of

property in execution of decree, 30 days period of limitation is prescribed

(Article 129). For mere delivery of possession by purchaser, in execution of

decree, one year limitation period is prescribed (Article 134); for enforcement of

decree granting mandatory injunction, 3 years limitation period (Article 135)

and for execution of any other decree, other than mandatory injunction, 12

years period is prescribed (Article 136). The period would commence when the

decree becomes enforceable “Dr. Chiranji Lal (D) by L.Rs. Vs. Hari Das (D) by

L.Rs” 2005(4) SCJ 544.

For helping the decree holder in enjoying the fruits of the decree, courts

have to meticulously deal with different kinds of hurdles in execution, while the

beneficiary should simultaneously be alert in availing different provisions of

Law prescribing periods of Limitation during execution.

10

Presented by: Smt U. Indira Priyadarshini, IV-Additional Chief Metropolitan Magistrate, Vijayawada.

Execution - Meaning:-

Execution is the last stage of any civil litigation. Execution enables the

decree holder to recover the fruits of the Judgment. The term execution has not

been defined in the court. The expression execution simply means the process

for enforcing or giving effect to the Judgment of the court.

Section 36 to 74 and Order 21 of the Civil Procedure Code dealt with the

Principles governing execution of decree and orders. The execution is

completed when the decree holder gets money or other thing awarded to him by

the Judgment, decree or order of the court. All proceedings in execution

commencing with the filing of application for execution, such application made

to the court, who passed the decree or where the decree has been transferred

to another court. Section 38 of the court specified that a decree may be

executed either by the court, who passed it or by the court to which it is sent

for execution.

Modes of Execution:-

Section 51 to 54 of the civil procedure code describes procedure in execution or

mode for execution.

Mode of executing decree U/.s.51 C.P.C

(a) by delivery of any property specifically decreed, (Property may be movable or

immovable)

(b) by attachment and sale or by sale without attachment of any

Property,

c) by arrest and detention in prison(for such period not exceeding the period

specified in section 58, where arrest and detention is permissible under that

section).

d) by appointing receiver:-; or

e) is the residuary clause and comes into play only when the decree cannot be

executed in any of the Modes prescribed under clause (a to d).

Execution-Limitation:-

Limitation must strictly followed when filing various application for

execution. Section 5 limitation act is not applicable in execution proceedings.

Article 136:-

Under article 136 the period of limitation for an application for the

execution of any decree (other than) a decree granting a mandatory injunction

or order of any civil court is 12 years and the time of limitation starts to run

from the date "when the decree or order becomes enforceable or where the

decree or any subsequent order directs any payment of money or the

11

delivery of any property to be made at a certain date or at recurring

periods.

Provided that an application for enforcement or execution of a

decree granting a perpetual injunction shall not be subjected to any

period of limitation. The executing court must execute the decree

according to it terms except when there is a statutory limitation to

execute it".

Some of the Relevant Provisions in Limitation Act:-

Section 15: Exclusion of time in certain order cases:-(1) In computing the

period of limitation of any suit or application for the executing of a decree, the

institution or execution of which has been stayed by injunction or order, the

time of the continuance of the injunction or order, the day on which it was

issued or made, and the day on which it was withdrawn, shall be excluded.

(2) In computing the period of limitation for any suit of which notice has been

given, or for which the previous consent or sanction of the Government or any

other authority is required, in accordance with the requirements of any law for

the time being in force, the period of such notice or, as the case may be, the

time required for obtaining such consent or sanction shall be excluded.

Explanation:- In excluding the time required for obtaining the consent or

sanction of the Government or any other authority, the date on which the

application was made for obtaining the consent or sanction and the date of

receipt of the order of the Government or other authority shall both be counted.

(3) In computing the period of limitation for any suit or application for

execution of a decree by any receiver or interim receiver appointed in

proceedings for the adjudication of a person as an insolvent or by any

liquidator or provisional liquidator appointed in proceedings for the winding up

of a company, the period beginning with the date of institution of such

proceeding and ending with the expiry of three months from the date of

appointment of such receiver or liquidator, as the case may be, shall be

excluded.

(4) In computing the period of limitation for a suit for possession by a

purchaser at a slae in execution of a decree, the time during which a

proceeding to set aside the sale has been prosecuted shall be excluded.

(5) In computing the period of limitation for any suit the time during which the

defendant has been absent from India and from the territories outside India

under the administration of the Central Government, shall be excluded.

Section 17: Effect of Fraud or Mistake:- (1) Where, in the case of any suit or

application for which a period of limitation is prescribed by this Act:-

(a) the suit or application is based upon the fraud of the defendant or

respondent or his agent; or

12

(b) the knowledge of the right or title on which a suit or application is

founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake;

or

(d) where any document necessary to establish the right of the plaintiff or

applicant has been fraudulently concealed from him;

The period of limitation shall not begin to run until the plaintiff or

applicant has discovered the fraud or the mistake or could, with reasonable

diligence, have discovered it; or in the case of a concealed document, have

discovered it; or in the case of a concealed document, until the plaintiff or the

applicant first had the means of producing the concealed document or

compelling its production:

Provided that nothing in this section shall enable any suit to be

instituted or application to be made to recover or enforce any charge against, or

set aside any transaction affecting, any property which,-

(i) in the case of fraud, has been purchased for valuable consideration,

by a person who was not a party to the fraud and did not at the time of the

purchase know, or have reason to believe, that any fraud had been committed;

or

(ii) in the case of mistake, has been purchased for valuable

consideration subsequently to the transaction in which the mistake was made,

by a person who did not know, or have reason to believe, that the mistake had

been made; or

(iii) in the case of a concealed document, has been purchased for

valuable consideration by a person who was not a party to the concealment

and, did not at the time of purchase know, or have reason to believe, that the

document had been concealed.

2) Where a judgment-debtor has by fraud or force, prevented the execution of a

decree or order within the period of limitation, the court may on the application

of the judgment-creditor made after the expiry of the said period extend the

period for execution of the decree or order:

Provided that such application is made within one year from the date of

the discovery of the fraud or the cessation of force as the case may be.

Section 18: Effect of acknowledgment in writing:- (1) Where, before the

expiration of the prescribed period for a suit or application in respect of any

property or right, an acknowledgment of liability in respect of such property or

right has been made in writing signed by the party against whom such

property or right is claimed, or by any person through whom he derives his title

or liability, a fresh period of limitation shall be computed from the time when

the acknowledgment was so signed.

13

(2) Where the writing containing the acknowledgment is undated, oral

evidence may be given of the time when it was signed; but subject to the

provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its

contents shall not be received.

Explanation: - For the purpose of this section:-

(a) an acknowledgment may be sufficient though it omits to specify the

exact nature of the property or right, or avers that the time for payment,

delivery, performance or enjoyment has not yet come or is accompanied by a

refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to

set off, or is addressed to a person other than a person entitled to the property

or right;

(b) the word "signed" means signed either personally or by an agent duly

authorized in his behalf; and

(c) an application for the execution of a decree or order shall not be

deemed to be an application in respect of any property or right.

LIMITATION FOR SEVERAL APPLICATIONS DURING EXECUTION

Art. No Description of Application period of limitation Time from which period begins to run

1 2 3 4

124 For a review of judgment by a court other than the supreme court

Thirty days

The date of the decree or order

125 To record an adjustment or satisfaction of a decree.

Thirty days

when the payment or adjustment is made.

126 Order 21, Rule 11(2) C.P.C. For payment of the amount of a decree by installments

Thirty days

The date of the decree

127 Under order 21 Rule 89,90 and sec.47 C.P.C. To set aside a sale in execution of a decree, including any such application by a J.Dr.

(Sixty) days

The date of the sale

128 Order 21 Rule 94 CPC Thirty days The date of the dispossession.

129 Under order 21, Rule 97 CPC. For possession after removing resistance or obstruction to delivery of possession of immovable property decreed or sold in execution of a decree

Thirty days

The date of resistance or obstruction

134 Order 21 Rule 95 CPC One year when the sale becomes absolute.

135 Order 21 Rule 32 r/w 35 CPC

Three years

The date of the decree or where a

14

date is fixed for performance such date

136 For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court.

Twelve years (when) the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought takes place. Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.

137 Any other application for which no period of limitation is provided elsewhere in this division.

Three years

When the right to apply accrues.

Order 21 Rule 85 CPC

3/4 sale proceeds and SC charges or amount requires for stamps should be deposited

Within 15 days

From the date of sale

Rule 197 CRP

sale proclamation batta along with SP copies and tomtom charges

Shall be paid within 2 days

From the date of order

Rule 187 CRP

sale warrant batta shall be paid

A week before date fixed for sale

Fixed for sale

Order 21, Rule 68 CPC

sale of immovable property conducted

After expiry of 15 days from the date on which the copy of proclamation is affixed on the notice board

Whereas it is 7 days in respect of movables.

Relevant Case Law :-

1) In Giridarlal Vs. Tagore Das AIR 1964 Orissa 170, it has been held

that initial owners of upon the decree holders to show that the execution is

within time. Where the application for execution is prima facie not beard by

limitation it is for the judgment debtor to show that the execution is time

barred.

2) In Manwa Vs. Moulana AIR 1981 All. 143 a decree for mandatory

injunction and for possession was passed, in which two months time was given

to the defendants to remove the debris failing which the plaintiff was entitled to

get the debris removed by the process of court and was entitled to get

15

possession of the land. The decree was passed on 25.4.1961, it has been held

that the decree between enforceable on 25.6.1961. As the execution case was

filed on 12.5.1973 it is also held that decree was possession of executable as it

was filed within 12 years of the date when the decree was possession became

and forcible., but decree for mandatory injunction could not be executed

because it has been filed within 3 years of 26.9.1961 under article 135 of

Limitation Act.

3) In Mohan Lal Vs.Hari Prasad Yada, 1994 (4) SCC 177: (2) UJ 458,

after the period of limitation prescribed under Art.127 of the Act, the executing

court derives no jurisdiction to entertain an application for condonation of

delay.

4) In Chhagan Lal Vs. Indian Iron & steel Co, Ltd., AIR 1979 Cal 160

(1979) 83 CWN 195 (DB), when a decree is executable under the law and when

the D.Hr allows such decree to become barred by law, he cannot be allowed to

get the fruits of the decree by a separate action.

5) In Hameed Joharan (d) Vs. Abdual Salam (d) AIR 2001 SC 3404,

limitation for execution of a partition decree starts from the date of passing of

final decree, irrespective of its being engrossed on stamp papers.

Time required for obtaining a certified copy of decree cannot be excluded

for computing limitation.

The second part of third column of article 136 provides that where the

decree or subsequent order directs any payment of money or for the delivery of

any property to be made at a certain date or at requiring periods then the

limitation commenced from the date when the default in making the payment

or delivery in respect of which the execution is sought for, takes place.

Therefore, this part covers in terms all cases where either the decree originally

or by any subsequent order directs the payment of decretal amount or delivery

of any property at a future date or by installments. The words “certain date’

used in the 3rd column of article 136 refereed to a date which at the date of

decree or order is certain. Therefore, a date which can become certain only at

the future time will not be a certain date, within the meaning of article 136.

The words “certain date” or of the vide amplitude than the word “specified and

which consequently mean an ascertained or ascertainable date”.

CONCLUSION:

So, in view of various provisions under Limitation Act, Limitation must

be strictly followed while filing different applications covered under sec.36 to 74

and order 21 of the Civil Procedure Code, which governs execution of decree

and orders.

16

Presented by: Smt P. Lakshmi Kumari, Principal Junior Civil Judge, Nandigama.

Limitation must be strictly followed and there are specific period for

different petitions. Section 5 of Limitation Act is not applicable in Execution

proceeding and same is also not maintainable in a proceeding arising under

Or.21 of the code.

NOTICE:

If below two years from decree, no notice under order 21 rule 22 C.P.C be

sent. Straight away orders may be passed ie., notice and attach by. In cases

where the last orders in previous E.P were passed within two years of the fresh

executive petition same rule is applicable. No notice necessary if court feels

that unreasonable delay will be caused.

In cases of salary attachment, no notice to pay disbursing officer is

necessary. It is sufficient if attachment alone is sent to him. He need not be

added as respondent. If respondent fails to appear or does not file counter,

next order to be attachment made absolute. E.P allowed.

LEGAL HEIRS IN EXECUTION PROCEEDINGS :

If E.P filed against L.R’s of J.Dr no separate application to implead them

be filed along with E.P. Notice will be sent to the L.R’s and counter filed,

enquiry made and orders passed and then again E.P will be taken on file. Not

necessary waste of time – it is sufficient if E.P is filed under order 21 Rule 11

r/w Section 50 of C.P.C.

If Judgment debtor dies pending execution proceedings, then application

need be filed u/s. 50 of C.P.C. Order 22 Rule 12 C.P.C to be taken note of.

Order 22 Rule 3, 4, 8 not applicable to execution proceedings. No abatement

in E.P. Hence, reasonable time be given to implead L.R’s and if not E.P may be

dismissed for default. Since, no abatement is there fresh E.P may be filed.

A.I.R 1932 MADRAS 73 FB MH Venkatachalam Vs. Rama Swamy

“Rule 12 of Order 22 of C.P.C is envisage to be of benefit to a decree

holder. When execution proceedings are pending on account of death of party

to proceedings, it does not abate. The parties are entitled to impleaded when

execution proceedings are pending. There is also no bar to file fresh

application for execution also”.

Legal representatives are entitled to come on record in execution petition

at any time. However, when execution petition is pending and if the death

party is informed to the court, the court may fix a date, time to implead the

L.R. If petition is not filed, the court can dismiss the petition for default. Fresh

application of execution is a continuation of execution petition.

17

STAY PROCEEDINGS :

Court cannot stay execution of its own decree ; only under order 41 rule

5 of C.P.C stay can be granted by trial court but for the fixed time only.

Order 21 rule 26 of C.P.C can be invoked only by transferee.

Order 21 Rule 29 of C.P.C for specific purpose when another suit is pending

against the D.Hr filed by J.Dr or other person interested in the same subject

matter. AIR 1978 MADRAS 269 (after amendment transferring court can also

pass stay orders)

Stay by appellate courts order 41 rule 5, 6 of C.P.C.

No stay can be granted if appeal is filed with delay condonation petition --

Order 41 rule 3 A of C.P.C.

In the absence of stay, E.P must be proceeded with. Normally, the parties

would approach the execution court for stay u/s. 151 C.P.C. But inherent

powers cannot be invoked as per (2005) 4 MLJ 163 (SC) (Damodaran Pillai and

others Vs. South Indian Bank Limited).

If court is satisfied that appeal is pending then, no purpose in keeping the E.P

pending. E.P can be dismissed with liberty to file fresh E.P after disposal of

appeal. The limitation will be saved since the decree will much with appellate

court decree and the time will run afresh after the disposal of the appeal.

In cases of insolvency petitions pending in other courts. Pending of I.P

proceedings is not a ground to stay the E.P. Executive court cannot stay the

proceedings since I.P is pending. J.Dr must obtain interim protection order

from the insolvency court.

2008 (4) LW 1068 Saravanan Vs. Raju (Madhurai Bench)

“C.P.C 51, 55, 58 Order 21 rule 37, 40 C.P.C - merely because J.Dr presented

an I.P before the insolvency court, the executive court need not stay in

proceedings in absence of any adjudication by insolvency court. The J.Dr must

obtain interim protection order from the court”.

Section 47, Order 21, Rule 58, 59, Order 21, Rule 97 to 100, Order

21 Rule 105, 106 C.P.C.

i) Section 47 : The court cannot go behind the decree. Court can interfere only if

the decree is null and void without jurisdiction. 2007 (4) MLJ 361 SC

Dharsasingh Vs. State of Punjab. 2008 (1) MLJ 1012 MHC District Collector,

Thiruvanmalai Vs.Jeaseelan. (In this case, injunction decree obtained for

granting of patta – no jurisdiction as it is barred under section 14 of Tamil

nadu Patta pass book Act.

ii) Section 47 Vs. Order 21 Rule 2 C.P.C : Any settlement or adjustment or

discharge of decree has to be certified by court under order 21 rule 2 C.P.C.

Time limit for invoking order 21 Rule 2 of C.P.C is 30 days from the date of

payment, adjustment or satisfaction (Article 125 of Limitation Act). The court

cannot recognized any such adjustment or satisfaction if it is not certified

18

under order 21 rule 2 of C.P.C. This prohibition is made under order 21 rule 3

“A payment or adjustment which has not been certified or recorded as

aforesaid shall not be recognized by any court executing the decree”. Petitions

will be filed u/s. 47 claiming adjustment or satisfaction or record the said

adjustment or satisfaction u/s. 47 C.P.C. Since specific provision under order

21 rule 2 and rule 3 of C.P.C is there the general provision of Section 47 not

applicable.

2006 (3) MLJ Page 57 (SC)

Padma Ben Bhanu shali and another Vs. Yogendra Rathore and others.

“Uncertified adjustment out of the court cannot be considered u/s. 47 C.P.C”.

iii) Order 21 Rule 58, 59 :

These petitions have to be dealt with immediately and with strict consideration

of Limitation. Only if stay is granted under order 21 rule 59 E.P must be stay.

These petitions will be filed on the eve of sale considerations. To be strictly

scrutinized. They would wantonly filed incomplete petitions so as to take

advantage of returns. WE can call the advocates and get them rectified

immediately.

iv) Order 21 Rule 97 to 100 of C.P.C :

Removal of obstruction in cases of delivery. Short adjournments shall be given

and the proceedings shall be expedited.

Setting aside the sale – Order 21 rule 72, Order 21 rule 90 C.P.C :

i) Order 21 rule 72 of C.P.C :

The decree holder or his benami shall not bid or buy property in court auction

sale without permission from the court. If the decree holder or his benami is

found to have purchased the property in court auction without permission or

when permission is rejected, the sale has to be necessarily set aside under

order 21 rule 72 (3). No substantial injury has to be proved by the J.Dr or any

interested person, to set aside the sale as required under order 21 rule 90 of

C.P.C. If it is found that decree holder/purchaser has not obtained necessary

permission, the sale must be set aside.

1981 (1) MLJ Page 1 MH (FB) Suresh Babu Vs. BalaSubrahmanyam

“Sale is invalid even if no substantial injury is caused”.

ii) Order 21 Rule 90 of C.P.C :

Under this provision, sale can be set aside only when substantial injury is

pleaded and proved. If the petitioner does not plead or prove his substantial

injury is caused due to the material irregularity in the conduct of sale, the sale

need not be set aside. Mere irregularity is not a ground to set aside the sale

under order 21 rule 90 C.P.C.

19

A.I.R 2000 SC 3402 A.I.R. 1986 SC 2099

GENERAL DELAY :

If batta is not paid within reasonable time E.P may be dismissed. If

already attachment is made an order making attachment to continue for three

months shall be made. This will reduce the formality the 2nd application. The

2nd petition can be filed straight away for sale within the period of three

months.

P.S in installments :

The petition for payment of amount by installments must be made within 30

days from the date of decree under 21 rule 2 of C.P.C. The court shall direct

substantial payment as way of part satisfaction on regular hearings. The court

shall be strict in enforcing payment since if small amounts are allowed to be

paid, it will take more time and E.P will be pending.

Arrest Order 21 Rule 40 of C.P.C :

Normally, the court Amin will record and return the arrest warrant as “J.Dr

absent”. Strict instruction must be given to the bailiff as well as the plaintiff to

effect arrest and produce the J.Dr within reasonable time. Instances are also

there that decree holder also colludes with the J.Dr to recover money from him

instead of sending him to jail by paying batta. In such cases, E.P must be

dismissed.

Sale adjournments petition – Order 21 rule 69 of C.P.C :

Long adjournments of sale should not be allowed. The petitioner must forego

fresh proclamation when seek sale adjournment under order 21 rule 69 of

C.P.C it should be mentioned in the affidavit and petition. Short adjournments

like two weeks or three weeks alone shall be granted for sale. If substantial

amount is paid as part satisfaction.

There are certain limitations for filing of execution petitions which are as follows :

For delivery of possession by court. Auction purchase under order 21 rule 95 C.P.C

One year from the date of conformation of sale.

For enforcement of decree granting mandatory injunction under 21 rule 32 r/w 35 C.P.C.

Three years from the date of decree or date fixed for performance (Article 135 of Limitation Act)

For execution of any decree other than maintenance decree, mandatory and perpetual injunction.

12 years from the date of decree or order becoming enforceable ( Article 136 of Limitation Act)

To record an adjustment or satisfaction of a decree under order 21 rule 2 of C.P.C

30 days from the date of payment or adjustment. (Article 125 of Limitation Act)

For the payment of amount due under the decree by installments under order 21 rule 11 (2) of C.P.C

30 days from the date of decree

20

To set aside sale in execution of

decree including E.A. by J.Dr.

Order 21 rule 89, 90 and Section

47 of C.P.C

Note : For an E.A under order 21

rule 89 C.P.C, the time for deposit

is 30 days from the date of sale.

60 days from the date of sale.

Supreme Court decision in 1990

(1) MLJ 36 to 40

To set aside sale in cases relating

to debts due on Mortgage Deed

Any time before confirmation of

sale as per Order 34 R.5 C.P.C

For redelivery of possession under

order 21 rule 99 C.P.C

30 days from the date of

dispossession

(Article 128 of Limitation Act)

For removal of resistance or

obstruction to delivery to delivery

under Or. 21 R. 97 C.P.C

30 days from the date of

resistance or obstruction.

(Article 129 of Limitation Act.

For execution of decree granting

perpetual injunction

No time limit prescribed.

Time limit for detention of an

arrested JD in court premises

under custody of officer of court

Not exceeding 15 days. 1st

proviso to Or. 21 Rule 40 C.P.C.

Form No. 14A.

Time limit for share of 1/4th sale proceeds.

Immediately after declaration of sale. If D.Hr is purchaser may be dispensed with.

Time limit for deposit of 3/4th sale proceeds and S.C. charges ( Rule 94 or amount required for stamps

15 days from the date of sale order 21 rule 85 CPC.

Time limit for payment ( Deposit of any batta in execution except sale warrant batta

Within 2 days or period if so fixed by the judge. (Rule 144 C.R.P)

Time for payment of sale proclamation batta along with S.P. copies and Tom Tom charges (Movables

Within 2 days from the date of order. Mandatory provision. Rule 187 C.R.P.

Time for payment of sale warrant

batta

A week before date fixed for sale. Mandatory provision rule 187 C.R.P.

Return of decree of other courts entered in Cr.15 if execution is not levied in Execution court.

Within 3 days after expiry of one year. Time from the date of receipt of other court decree. Date of transmission is not the criteria Rule 138 C.R.P

Time for sale order 21 rule 68 C.P.C

For immovables after expiry of 15 days from the date on which the copy of proclamation is affixed on the court notice board. For movables it is seven days.

21

Thus, these are certain limitation prescribed for filing of execution.

Courts cannot travel beyond the decree or order, unless the roots of decree are

order lack in its validity but all irregular or wrong decrees or orders are not

necessarily null and void. Mere lack of jurisdiction in passing the decree or

order is not void. Only those decrees or order which goes into the root of the

matter as to its illegality alone or subject to scrutiny by the executing court.

The primordial duty of the court is to the technical flaws shall not alone to

inroad in the administration of justice.

22

Presented by : Sri P.Koteswara Rao, VI Addl. Junior Civil Judge Vijayawada.

DEFINITIONS

The word “execution” is not defined anywhere in the Civil Procedure

Code, 1908. It simply means the process for enforcing the decree that is

passed in favour of the decree-holder.

As per R.2 (e) of Civil Rules of Practice “Execution Petition” means a

petition to the Court for the execution of any decree or order.

As per R.2(f) Civil Rules of practice “execution application:” means an

application to the Court made in a pending execution petition, and includes an

application for transfer of a decree.

Application for execution has to be submitted by the D.Hr. to the court

by which the decree is passed (or) to the court to which the decree has been

transmitted for the execution. (Or.21 Rule.10 and also as per Sec.37 and 38 of

Civil Procedure Code)

Application shall be in writing as prescribed in Form No.53 of Civil Rules

of Practice. Certified copy of the decree has to be filed along with the first

Execution Petition and the petitioner need not be filed along with subsequent

E.Ps.

LIMITATIONS / EXEMPTIONS

In Execution proceedings, the limitations are different from period of

limitation under various Articles of Limitation Act. Section of 5 of Limitation

Act is applicable to Execution Proceedings. Or.21 of Civil Procedure Code is a

self served with procedure.

There are certain limitations during the execution proceedings i.e., the

execution court cannot go beyond the decree passed by the original court. And

the following are the some of limitations by way of exemptions.

Women are exempted from arrest in execution of money decree (Sec.56

C.P.C)

Certain class of persons are exempted from arrest (Sec.55 (2) CPC)

If the decree is for not more than Rs.2000/-, arrest cannot be ordered.

For restrictions on arrest read Sec. 135 and Sec.135-A C.P.C.

PROCEDURE IN EXECUTION PROCEEDINGS:

Can the Execution Court grant Instalments? No -

As per Article 126 of Limitation Act, necessary application must be filed

within 30 days from the date of the decree for grant of instalments.

Whether there are any limitations:

Women are exempted from arrest in execution of money decree (Sec.56

C.P.C)

Certain class of persons are exempted from arrest (Sec.55 (2) CPC)

If the decree is for not more than Rs.2000/-, arrest cannot be ordered.

23

For restrictions on arrest read Sec. 135 and Sec.135-A C.P.C.

Steps to be taken before ordering the detention of the J.Dr. in Civil

prison.

(a) issue notice under Order 21 Rule 37 – Form No.12/Appendix E of CPC

(b) If J.Dr. fails to appear in response to Rule 37 notice; then Rule37 (2)

warrant must be issued for production of the J.Dr. – Form No.13/Appendix E

of CPC

(c) If J.Dr appears in response to Rule 37 notice or if the J.Dr is produced on

Rule 37(2) Warrant of arrest, means enquiry must be conducted under Order

21 Rule 40 CPC.

The Court has to inform the JDR that he is at liberty to file insolvency

proceedings – Sec.55 (3) CPC

If the JDR expresses his intention to file I.P within one month he can

released on security. Sec.55 (4) CPC

If the J.Dr is prepared to give security when he is produced under Rule

37(2) Warrant, he must be released.

If the JDR obtains protection order U/s 23 of Provincial Insolvency

Act the JDR must be released.

If J.Dr has refused to give security, he can be kept under Court guard

custody [O.21 R.40(2)] F/14A/Appendix E CPC and the Court should conduct

means enquiry expeditiously.

The Court has to inform that the J Dr is at liberty to file insolvency

proceedings.

(d) to order arrest of the J.Dr who is a Government Servant, a seven days prior

notice must be given to the Head of the Institution.Rule 241 civil rules of

practice

(e) The subsistence allowance must be paid by the D.Hr. see Rule O.21 R.39(1)

of C.P.C.

(f) while conducting the means enquiry, Sec.60 of C.P.C. must also be taken

into consideration

(g) enquiry as to means is necessary : read

R.V.J.Sastry Vs.Bank of India ( 1978 (2) A.L.T.335)

Kasi Subbaiah Mudali _vs_ Kasi Veraswamy Mudali & Others( 2002(3) A.L.T.

240)

K. Manoharan –vs- A.V.Subbanna (AIR 2002 Mad. 340)

K.Harikrishna Vs.Dr.L.Raghunatha Rao 2004 (5) ALT 52)

No detailed enquiry is necessary as in a Civil suit. Please Read -

(K.Munirathnam Vs. D.Bhaskar Naidu)2006 (4) ALT 169

Challa Sivakumar Reddy Vs Kudumula Surender (2008 (1) ALT 335) (Standard

of Proof)

(h) The grounds to detain the JDR in civil prison See Sec.51 proviso

24

(i) The period of detention in civil prison – Sec Sec.58 (1) CPC. If the decretal

amount is between Rs.2000/- to Rs.5000/-, upto 6 weeks and if the decretal

amount is more than Rs.5000/-, upto 3 months (maximum period of detention

in a civil prison must not be more than 3 months)

(j) Even before sending the J.Dr to civil prison, J.Dr can be released on

furnishing security and also can be kept in court guard custody for not more

than 15 days, to enable J.Dr to pay the decretal amount.

O.21 R.40(3) proviso :

Warrant of Committal – Form No.14A/Appendix E of CPC {A.P.Amendment}

SOME OF THE STRATEGIES FOR TIMELY JUSTICE IN EXECUTION PETITIONS I. FILING / LIMITATION: Limitation must be strictly followed. Specific

period for different petitions. (Vide separate sheet)

Section 5 limitation Act is not applicable in EP.

(2005) 4 MLJ 163 (SC) Damodaran Pillai and others Vs South Indian Bank Limited "An application under Sec. 5 of the Limitation Act is not maintainable in

a proceeding arising under O. 21, of the Code." "A fortiori for the said purpose,

inherent power of the Court cannot be invoked."

(2003) 3 MLJ 590 (Mad) M.Ponnupandian Vs Selvabakiyam

in both Civil Procedure Code (V of 1908), O. 21, Rule 106 and Sec.151 —

Limitation Act (36 of 1963).

Sec.5 — Application to set aside ex parte order under O. 21, Rule 106 —

Application to condone delay in filing said application — Delay cannot be

condoned as Sec.5, Limitation Act not applicable.

II. NOTICE:

If below 2 years from decree no notice under Or 21 r 22 CPC be sent.

Straight away orders may be passed. i.e., “Notice and Attach by... “ In cases

where the last orders in previous EP were passed within 2 years of fresh EP

same rule applicable. See Or 21 R22 Proviso.

Also see Or 21 r 22(2): “ notice not necessary if court feels that unreasonable

delay will be caused”

In cases of Salary attachment no notice to Disbursing Officer is

necessary. It is sufficient if attachment warrant alone is sent to him. He need

not be added as respondent (as is done in some places.) If respondent fails to

appear or does not file counter. Next order would be “Attachment made

absolute. EP allowed.”

III. Lrs in EP.

If EP filed against Lrs of JD, no separate application to implead them be

filed along with EP. Notice will be sent to Lrs and counter filed, Enquiry made

and orders passed and then again EP will be taken on file. Not necessary Waste

of time It is sufficient if EP is filed u/o 21 r 11 r/w sec 50 CPC.

25

If JD died pending EP, then application need be filed u/s 50 CPC. Order

22 rule 12 CPC to be taken note of. Or 22 rules 3,4,8 not applicable to

Execution proceedings. No abatement in EP. Hence reasonable time be given to

implead Lrs and if not EP may be dismissed for default. Since no abatement is

there fresh EP may be filed.

AIR 1932 Mad 73 FB MH

(Venkatachalam Vs Ramaswami)

“Rule 12 of Order 22 of CPC is envisaged to be of benefit to a decree

holder. When execution proceedings are pending, on account of death of party

to proceedings, it does not abate.

The parties are entitled to be impleaded when execution proceedings are

pending. There is also no bar to file fresh application for execution also.”

1998 (1) CTC 509 MH

(UTHIRAPATHY VsASHRAB ALI & OTHERS)

“ This rule is intended to apply to the 'Proceedings under the Act :

Execution petition by virtue of fiction attached to it under sec.18 of the Act, is

one under the code of civil procedure. When Order of eviction is passed under

secs. 10, 14, 15, 16 and 17 it ceased to be ceased to be order under the Act. It

has reached a stage of execution. So, rule 25 of the Act is not applicable to

proceedings of eviction. According to Rule 12 CPC also, the abatement of

petition in execution does not arise under Order 22 of CPC”. Legal

representatives are entitled to come on record in execution petition at any time.

However, when execution petition is pending and, if the death of party is

informed to Court, the Court may fix a (date) time to implead the L R's. If

petition is not filed, the Court can dismiss the petition for default. Fresh

application of execution is a continuation of execution petition.”

IV. STAY OF PROCEEDINGS:

This is where the proceedings get stuck without any progress. If we

strictly follow the provisions and the decisions of the HC and SC the delay

would be considerably cut down and the justice will be done in time.

1. Court cannot stay execution of its own decree: Only under Or 41 rule 5 CPC

stay can be granted by trial court, but for fixed time only.

2. Or 21 rule 26 CPC can be invoked only by transferee court.

3. Or 21 rule 29 CPC for specific purpose when another suit is pending against

the DH filed by JD or other person interested in the same subject matter.

AIR 1978 MAD 269

(after amendment transferee court can also pass stay orders).

4. Stay by appellate courts Or 41 rule 5,6 CPC. No stay can be granted if

appeal is filed with delay condonation petition – Or 41 rule 3A. In the absence

of stay, EP must be proceeded with. Normally the parties would approach the

26

Executing court for stay u/s 151. But inherent powers cannot be invoked as

per

(2005)4 MLJ 163(SC)

(Damodaran Pillai and others Vs South Indian Bank Ltd).

5. If court is satisfied that appeal is pending then no purpose in keeping the EP

pending. EP can be dismissed with liberty to file fresh EP after disposal of

appeal. The limitation will be saved since the decree will merge with the

appellate court decree and the time will run afresh after the disposal of the

appeal.

6. In cases of Insolvency petitions pending in other courts. Pendency of I.P.

Proceedings is not a ground to stay the E.P. Executing court cannot stay the

proceedings since I.P. Is pending. The J.D. must obtain interim protection

order from the Insolvency Court.

2008 (4) LW 1068 Saravanan Vs Raju (Madurai Bench)

“CPC 51, 55, 58 Order 21 Rule 37, 40 CPC Merely because the J.D. Presented

an I.P. Before the Insolvency Court, the executing court need not stay in

proceedings in the absence of any adjudication by the Insolvency court. The

J.D. Must obtain interim protection order from the court.”

7. Sec. 47, Order 21 Rule 58, 59 Order 21 R ule 97 to 100, Order 21 Rule 105,

106 CPC. Petitions will be filed under these provisions making various claim in

the E.P. Early disposal of these petitions will consequently reduce the delay in

disposal of E.P.

(i) Section 47 :

The court cannot go beyond the decree. Court can interfere only if the

decree is null and void without jurisdiction.

2007(4) MLJ 361 SC Dharsasingh Vs State of Punjab

Any settlement or adjustment or discharge of decree has to be certified

by the court under Order 21 Rule 2 CPC. Time limit for invoking Order 21 Rule

2 CPC is 30 days from the date of payment, adjustment or satisfaction (Article

125 Limitation Act).

The court cannot recognize any such adjustment or satisfaction if it is

not certified under Order 21 Rule 2. This prohibition is made under Order 21

Rule 3 “A payment or adjustment which has not been certified or recorded as

aforesaid shall not be recognized by any court executing the decree” Petitions

will be filed u/s 47 claiming adjustment or satisfaction or record the said

adjustment or satisfaction u/s 47 CPC. Since specific provision under Order 21

Rule 2 and Rule 3 CPC is there the general provision of Sec. 47 not applicable.

2006(3) MLJ Page 57 (SC) Padma Ben Banushali and another Vs Yogendra

Rathore and Others “Uncertified adjustment out of court cannot be considered

u/s 47 CPC.”

27

(iii) Order 21 Rule 58, 59:

These petitions have to be dealt with immediately and with strict consideration

of limitation. Only if stay is granted under Order 21 Rule 59 E.P. must be

stayed. These petitions will be filed on the eve of sale confirmation. To be

strictly scrutinized. They would wantonly file incomplete petitions so as take

advantage of the returns. We can call the advocates and get them rectified

immediately.

(iv) Order 21 Rule 97 to 100:

Removal of obstruction in cases of delivery. Short adjournments shall be

given and the proceedings shall be expedited.

8. Setting aside the sale: Order 21 Rule 72 Order 21 Rule 90 CPC.

(i). Order 21 Rule 72 :

The decree holder or his binami shall not bid or buy property in court

auction sale without permission from court. If the decree holder or his binami

is found to have purchased the property in court auction without permission or

when permission is rejected, the sale has to be necessarily set aside under

Order 21 Rule 72(3). No substantial injury has to be proved by the J.D. or any

interested person, to set aside the sale as required under Order 21 Rule 90. If it

is found that Decree holder/Purchaser has not obtained necessary permission,

the sale must be set aside.

1981 (1) MLJ Page 1 M H (F B)

(Suresh Babu Vs Balasubramaniam)

“Sale is invalid even if no substantial injury is caused”.

(ii). Order 21 Rule 90:

Under this provision sale can be set aside only when substantial injury is

pleaded and proved. If the petitioner does not plead or prove that substantial

injury is caused due to the material irregularity in the conduct of sale, the sale

need not be set aside. Mere irregularity is not a ground to set aside the sale

under Order 21 Rule 90 CPC.

AIR 2000 SC 3402

AIR 1986 SC 2099

V. General Delay:

1. Delay in paying Batta:

If batta is not paid within reasonable time E.P. may be dismissed. If

already attachment is made an order making attachment to continue for 3

months shall be made. This will reduce the formality the second application.

The second petition can be filed straight away for sale within the period of 3

months.

2. Part Satisfaction in Installments:

The petition for payment of amount by installments must be made within

30 days from the date of decree Order 21 Rule, the courts shall direct

28

substantial payment as way of part satisfaction on regular hearings. The courts

shall be strict in enforcing payment since if small amounts are allowed to be

paid it will take more time and E.P. will pending.

3. Arrest Order 21 Rule 40:

Normally the court Amin will record and return the arrest warrant as

“J.D. Absent”. Strict instructions must be given to the bailiff as well the

plaintiff to effect arrest and produce the J.D. within reasonable time. Instances

are there that the decree holder also colludes with the J.D. to recover money

from him instead of sending him to jail by paying batta. In such cases E.P.

must be dismissed.

On the event of arrest of J.Dr. and when he is produced before the court,

the court has only two options either to sentence him to civil prison on

payment of Jail batta or to dismiss the E.P. for non payment of batta. Eg. The

D.H. Will be interested to record part satisfaction and directing the J.D. to pay

balance amount on the next hearing so as to avoid paying J.D. Batta. If such

practice is encouraged, the court will be blamed for pendency of E.Ps. If any

amount is paid on the event of arrest and if there is any balance amount, the

court cannot release the J.D. on Muchalika, if the arrest order is passed after

satisfaction of the requirements under Order 21 Rule 40.

4. Sale Adjournment petitions Order 21 Rule 69 CPC.:

THESE ARE SOME OF THE IMPORTANT POINTS OF LIMITATION IN

EXECUTION PROCEEDINGS.

For delivery of possession by Court One year from the date of Auction Purchase under Order 21 rule 95 CPC confirmation of Sale For enforcement of a decree granting 3 years from the date of decree or Mandatory Injunction under date fixed for performance. Or 21 R 32r/w 35CPC (Article 135 Limitation Act) For execution of any decree other than 12 years from the date of decree maintenance decree, mandatory and. Or Order becoming enforceable perpetual injunction (Article 136 Limitation Act) To record an adjustment or satisfaction of 30 days from the date of a decree under Or 21 R 2 CPC payment or adjustment. (Article 125 Limitation Act) For the payment of the amount due under decree 30 days from the date of decree by installments under Or 21 R 11(2) CPC To set aside sale in execution of decree 60 days from the date of sale. including E.A. By JD. Or 21 R 89, 90 and Sec 47 CPC Note: For an EA under Or 21 R 89 CPC the time Supreme Court decision for deposit is 30 days from the date of sale. In 1990 (1) M.L.J. 36 to 40 To set aside sale in cases relating to debts Any time before confirmation due on Mortgage Deed. Of sale as per Or 34 R 5 CPC.

29

For redelivery of possession under 30 days from the date of Or 21 R 99 CPC dispossession (Article 128 Limitation Act) For removal of resistance or obstruction to 30 days from the date of delivery resistance to delivery under Or 21 R 97 CPC or obstruction. (Article 129 Limitation Act) For execution of decree granting perpetual No time limit prescribed. Injunction Time limit for detention of an arrested JD in court Not exceeding 15 days. 1st proviso premises under custody of officer of court. to Or 21 R 40 CPC. Form No. 14 A Time limit for deposit of 1/4th sale proceeds Immediately after declaration of sale. If DH is the purchaser may be dispensed with. Time limit for deposit of ¾th sale proceeds and 15 days from the date of sale S.C. Charges (rule 94) or amount required Or 21 R 85 CPC. for stamps Time limit for payment (deposit) of any batta in Within 2 days or period if so fixed execution except sale warrant batta. by the judge. (Rule 144 C.R.P.) Time for payment of sale proclamation batta within 2 days from the date of along with S.P. Copies and Tom Tom charges. order Mandatory provision. Rule (Movables) 187 CRP. Time for payment of sale warrant batta. A week before date fixed for sale Mandatory provision Rule 187 CRP. Return of decree of other courts entered in CR 15 Within 3 days after expiry of 1 if execution is not levied in execution court. Year Time from the date of receipt court decree.(Date of transmission is not the criteria. Rule 138 CRP) Time for sale (Or 21 R 68 CPC) For immovables after expiry of 15 days from the date on which the copy of proclamation is affixed on the court notice board. For movables it is 7 days.

30

Presented by : M.Sandhya Rani, I Addl. Junior Civil Judge, Vijayawada

INTRODUCTION

Execution is the most important aspect of civil justice. Success or failure

of system of civil justice depends on success in executing decrees of civil

courts. The term execution has not been defined in the code. Execution is the

enforcement of a decree by a judicial process which enables the decree holder

to realise the fruits of the decree and judgment passed by the competent court

in his favour. The execution is complete when the judgment creditor or decree

holder gets money or other thing awarded to him by the judgment, decree or

order of the court. Order XXI of the code of civil procedure is the longest order

providing detailed provisions for making an application for execution and how

they are to be entertained, dealt with and decided.

All the proceedings in execution commence with filing of an application for

execution. Such application shall be made to the court which passed the

decree or if the decree has been transferred to another court, to that court.

Once an application for execution of decree is received by the court it will

examine whether the application complies with the requirements of rules 11 to

14. If they are complied with the court must admit and register the application.

Section 47 of code of civil procedure confer wide powers on the executing court.

All the questions arising in execution of decree have to be decided by the

executing court itself and not by separate suit. However, an executing court

cannot go behind the decree nor can it question its legality or correctness. But

there is one exception to this rule. That a decree passed by a court without

jurisdiction is a nullity and its invalidity could be setup whenever and wherever

it is sought to be enforced or relied upon even at the stage of execution.

The decree maybe executed by the court who passed it or by the court to

which it is sent for execution. Section 37 defines the expression ‘court which

passed a decree’. Sections 39 to 45 deals with conditions for transfer of

execution of a decree by the court which passed the decree to another court. All

proceedings in execution commence with the filing of an application for

execution by the following persons.

i. Decree holder

ii. Legal representative of the decree holder

iii. Representative of a person claiming under the decree holder

iv. Transferee of the decree holder in some cases

Sections 36 to 74 and order XXI of code of civil procedure dealt with

execution of decree and order. The law of limitation as regards for execution

will be found in article 136 of the Indian limitation act 1963. An application for

execution must be filed within three years of the date of the final decree, and in

31

the case of subsequent applications within three years of the date of final order

passed on a previous application must in accordance with law of the proper

court for execution.

The period of limitation for an application for the execution of any decree

(other than a decree granting a mandatory injunction) or order of any Civil

Court is twelve years and the time of limitation starts to run from the date

when the decree or order becomes enforceable or where the decree or any

subsequent order directs any payment of money or the delivery of any property

to be made at a certain date or at recurring periods, when default in making

the payment or delivery in respect of which execution is sought, take place:

provided that an application for the enforcement or execution of a decree

granting a perpetual injunction shall not be subject to any period of limitation.

Article 136 governs the execution of the decree or order of Civil Court

other than a decree for mandatory injunction. The executing Court must

execute the decree according to its terms except when there is the statutory

limitation to execute it.

In Giridharilal v. Thakurdas, (AIR 1964 Ori. 170), it has been held that

the initial onus is upon the decree-holder to show that the execution is within

time. Where the application for execution is prima facie not barred by

limitation it is for the judgment-debtor to show that the execution is time-

barred.

The modes in which the Court can give relief in execution are set forth in

Order XXI of the Civil Procedure Code. The period of limitation provided by the

Art. 136 is ordinarily an application for execution contemplated by Order XXI,

Rule 11 of Civil Procedure Code. An application under Order XXI, Rule 34 or

Rule 50 of the Civil Procedure Code is also covered by the Article 136.

In Uma Shankar v. Kanodia Brothers, (AIR 1966 All. 499), it has been

held that an application under Order Rule 50(2) of the Civil Procedure Code for

leave to execute a decree against a partnership firm as against a partner has

been held to be ancillary to the application for execution and has to be filed

within the period prescribed under the Art. 136.

In Manwa v. Maulana, (AIR 1981 All. 143), a decree for mandatory

injunction and for possession was passed in which two months’ time was given

to the defendant to remove the debris failing which the plaintiff was entitled to

get the debris removed by process of the Court and was entitled to get

possession of the land. The decree was passed on the 25th April, 1961.It has

been held that the decree became enforceable on 25th June, 1961. As the

execution case was filed on the 12th May, 1973, it is also held that decree for

possession was executable as it was filed within 12 years of the date when the

decree for possession became enforceable, but decree for mandatory injunction

32

could not be executed because it has not been filed within three years of 25th

June, 1961 under Art. 135 of the Limitation Act.

In Datta v. Digambar, (AIR 1968 Bom. 361), it has been held that the Art.

136 will not apply to an application for execution of award given by a special

Court under a special Act because it applies to execution of decree or order of

Civil Courts either under Civil Procedure Code or under any special status

under which order is deemed to be decreed by virtue of same provision

requiring the execution as decree.Under the Art. 136 of the Limitation Act,

1963, the period of limitation for the execution of any decree or order of any

Civil Court other than a decree granting a mandatory injunction is 12 years.

Art. 136 have set a new deadline beyond which no application for the execution

of the decree can be made.

Time required for obtaining a certified copy of the decree cannot be

excluded for computing limitation. The maximum period of limitation for the

execution of a decree or order is 12 years from the date when the decree or

order became enforceable, which is usually the date of the decree or order. The

expression “enforceable” has been used to cover a decree or order which is not

enforceable at the time it is made but becomes enforceable subsequently.

In Chandra Mouli v. K.B.N. Singh, (AIR 1976 Pat. 208), it has been held

that the decree comes into existence as soon as the judgment is pronounced

and not on the day when it is sealed and signed, because under Order XX, Rule

7, the decree shall bear date, on which the judgment was pronounced.

The second part of the third column of Article 136 provides that where

the decree or subsequent order directs any payment of money or for the

delivery of any property to be made at a certain date or at requiring periods,

then the limitation would commence from the date when the default in making

the payment or delivery in respect of which the execution is sought for, takes

place. Therefore, this part covers in terms all cases where either the decree

originally or by any subsequent order directs the payment of the decretal

amount or delivery of any property at a future date or by instalment.

The words “certain date” used in the third column of the Art. 136

referred to a date which at the date of the decree or order is certain. Therefore,

a date which can become certain only at the future time will not be a “certain

date” within the meaning of the Article 136. The words “certain date” are of

wider amplitude than the word ‘specified’ and would consequently mean an

ascertained or ascertainable date.In view of the proviso to the third column of

Art. 136 of the Limitation Act, 1963, the execution of the decree for permanent

injunction is not subject to any period of limitation. For executing the decree

for permanent injunction an application for execution has to be filed in the

executing Court and the Court cannot enforce it suomotu.

33

In I. Ahmed v. K. Bibi, (AIR 1985 Ori. 102), it has been held that for

execution of a decree other than a decree for mandatory injunction, 12 years is

the period of limitation which commences from the date when the decree

becomes enforceable, but an exception has been made in respect of the decree

for perpetual injunction for which there is no period of limitation and it can be

enforced at any time.

In LRs of Mega Ram v. Kаnа Ram, (AIR 1993 Raj. 208), it has been held

that so far as the decree for prohibitory injunction is concerned, namely

injunction from making encroachment, limitation can commence from the date

of fresh encroachment but there is no limitation period for executing such a

decree.

Article 136 is the comprehensive Article to cover the execution of any

decree or order of any Civil Court other than a decree granting mandatory

injunction. So, there is no dispute that for executing a decree passed by a

superior Court of a reciprocating territory (Foreign Country) in the District

Court in India, Article 136 of the Limitation Act will be attracted.

Under section 5 of the Indian Limitation Act no application would be

maintainable before the executing court as section of the said Act is strictly

non applicable to execution proceedings.

Section 6 of the limitation Act 1963 does not provide for a fresh starting

point of limitation. It means that the person under the disability is entitled to

an extension of time till the expiry of the period mentioned in the schedule

calculated from the cessation of disability. Section 6 excuses an insane person,

minor and idiot to file suit or make an application for the execution of a decree

within the time prescribed by law and enable him to file the suit or make an

application after the disability has ceased counting the period of time from the

date on which the disability is ceased. If one disability supervenes another

disability or one disability is followed by another without leaving a gap the suit

or application for execution may be filed after both disabilities have ceased to

exist. If the disability or disabilities continue till the person’ s death, then the

representative of the deceased or on whom the title devolves is allowed to file a

suit or make an application for execution within the time allowed by law

counting it from the death of a person.

Section 15 of the Limitation Act applies to a special or local law unless

expressly excluded as per Section 29(2) of the Limitation Act, 1963. In Trustees

of the Port of Madras v. Mettur Chemical & Industries Ltd., Salem, (AIR 1967

Mad. 109), it has been held that in a suit against the Port Trust the period of

notice can be excluded in computing limitation prescribed in Section 110 of the

Port Trust Act.

The object of Section 15(1) is to safeguard the interest of the person who

is precluded by an injunction or order of Court from exercising a right of suit or

34

execution of a decree passed in his favor against his being injured or damnified

on that account.

As Section 15 refers to a suit or an application for execution, Section

15(1) does not apply to appeals or applications other than the application for

execution. Section 15(1) is attracted for excluding the period of stay for any suit

institution of which has been stayed by an injunction or order issued by Court.

In order to invoke Section 15(1), there must be a decree which is operative.

A party seeking to take advantage of Section 15(1) must show that he

was earlier restrained by an order from making the prayer which he is now

making. But if he could have done earlier what he is trying to do now, Section

15(1) will not be attracted to his case.

15. Exclusion of time in certain other cases: —

(1) In computing the period of limitation of any suit or application for the

execution of a decree, the institution or execution of which has been stayed by

injunction or order, the time of the continuance of the injunction or order, the

day on which it was issued or made, and the day on which it was withdrawn,

shall be excluded.

(2) In computing the period of limitation for any suit of which notice has been

given, or for which the previous consent or sanction of the Government or any

other authority is required, in accordance with the requirements of any law for

the time being in force, the period of such notice or, as the case may be, the

time required for obtaining such consent or sanction shall be excluded.

Explanation. —In excluding the time required for obtaining the consent or

sanction of the Government or any other authority, the date on which the

application was made for obtaining the consent or sanction and the date of

receipt of the order of the Government or other authority shall both be counted.

(3) In computing the period of limitation for any suit or application for

execution of a decree by any receiver or interim receiver appointed in

proceedings for the adjudication of a person as an insolvent or by any

liquidator or provisional liquidator appointed in proceedings for the winding up

of a company, the period beginning with the date of institution of such

proceeding and ending with the expiry of three months from the date of

appointment of such receiver or liquidator, as the case may be, shall be

excluded.

(4) In computing the period of limitation for a suit for possession by a

purchaser at a sale in execution of a decree, the time during which a

proceeding to set aside the sale has been prosecuted shall be excluded.

(5) In computing the period of limitation for any suit the time during which the

defendant has been absent from India and from the territories outside India

under the administration of the Central Government, shall be excluded.

35

Order 21 deals with the process of execution and some of the relevant

provisions in the course of execution proceedings are as follows:

In case of any money payable under a decree under order 21 rule 2 if

paid out of court either whole or in part the decree holder shall certify such

payment or adjustment to the court. Article 125 of limitation act provides that

such adjustment or payment shall be recorded within 30 days of the payment.

Incase of where the sale of execution petition schedule property is adjourned

for more than 30 days, a fresh proclamation under rule 69 shall be made

unless the judgment debtor consents to waive it.

In every sale of immovable property, the person who is declared as

purchaser immediately after such declaration should deposit 25 % of purchase

amount to officer or to the person conducting sale under rule 84 and in default

of such payment the property be resold.Under rule 72 if the purchaser is the

decree holder he is entitled to set off the purchase money.The court may

dispense with the requirements of this rule. Under rule 85 the full amount of

purchase money payable and the general stamp for the certificate under rule

94or the amount required for such stamp shall be deposited by the purchaser

in the court before the court closes on the 15thday from the sale of property,in

calculating the amount of purchase to be so deposited the purchaser shall have

the advantage of any setoff which he may be entitled under rule 72. The

procedure for filing an application to set aside sale on deposit by any person

claiming interest in the property sold is provided under rule 89. The petition to

set aside sale in execution of a decree including any such application by a

judgment debtor shall be filed within 60 days from the date of such sale. Rule

90 prescribes the procedure for filing an application to set aside the sale on the

ground of irregularity or fraud or where the judgment debtor has no saleable

interest within 60 days from the date of such sale.

Where no application is made under rule 89, 90, 91 or where such

application is made but disallowed the court shall under rule 92 make an order

confirming the sale, the sale there upon becomes absolute. The court shall

issue a certificate to purchaser under rule 94. As per article 134 of schedule of

limitation act a petition for delivery of possession by a purchaser of immovable

property at a sale in execution of decree shall be filed within one year from the

date when the sale becomes absolute. When the decree holder or purchaser of

the property is obstructed by any person in obtaining the possession of

property a petition as per article 129 removing obstruction or resistance shall

be filed within 30 days from the date of such obstruction under rule 97. Where

a person other than judgment debtor is dispossessed by the decree holder or

purchaser he may make an application under rule 99 complaining of such

dispossession. A petition as per article 128 of limitation act for possession by

one dispossessed of immovable property disputing the right of the decree

36

holder or purchaser at a sale in execution of a decree shall be filed within 30

days from the date of such dispossession.

As per rule 106 an application under sub rule 1 shall be made within 30

days from the date of order for setting aside such exparte orders. Incase where

notice is not duly served within 30 days from the date where applicant has

knowledge of that order.

The limitation as per article 136 of limitation act for execution of a

partition decree starts from the date of passing of final decree.

Order 34 rule 5 provides the petition to set aside sale in cases relating to

debts due on mortgage deed can be filed at anytime before confirmation of such

sale.

Article 98 of the schedule of limitation act covers in a suit by a person

against whom an order under ordre21 rule 63 or 103 was made to establish a

right which such person claims to the property comprised in the order has to

be filed within one year from the date of such final order. Article 99 provides in

case of a suit to set aside the sale by a civil or revenue court, or for arrears,has

to be filed within one year from the date when the sale is confirmed. If any

petition or application has to be filed and does not come within any of the

above provisions such petition is to be filed within three years from the date

when the right to apply accrues as per article 137 of the limitation act.

The provisions under A.P. civil rules of practice are also provided under

rule 208(2) when execution petition is not filed within six months from the date

of receipt of the decree before the court to which the decree was sent for

execution, the court has to send the decree back certifying no application for

execution has been filed. Also rule 276 provides that when proclamation of sale

is made by the judge further hearing of the suit or proceeding shall be

adjourned to a day more than thirty-one days from the day fixed by the court

for the sale.

CONCLUSION

From the above discussion it is clear that execution is enforcement of

decrees and orders by the process of the court. Order 21 of the code contain

elaborate and exhaustive provisions for execution of decrees and order to take

care of different types of situations and provide effective remedies not only to

the decree holder and judgment debtor but also to the objectors and third

parties.

37

Presented by : Sri C.K.V.Satyakanth Kumar, I Addl. Junior Civil Judge,

Nuzvid.

INTRODUCTION :-

In a Civil Litigation, there are three Stages, namely, Institution of

Litigation, Adjudication of Litigation and Implementation of the Decree passed

in favour of the Plaintiff in such Litigation. The said Process of Implementation

is called as 'EXECUTION' in general parlance. Execution is the last stage of any

civil litigation. A Decree is the operative and conclusive Part of a Judgment. A

Decree can be executed not only by the Court, which passed the Judgment, but

also by the Court, to which the Decree is transferred or, which is having

competency to execute the Decree. Execution of a Decree enables the Decree

Holder to recover the fruits of the Judgment from the Judgment Debtor.

EXECUTION - MEANING :-

The term “Execution” is not at all defined in the Code of Civil Procedure.

As per the Webster's Revised Unabridged Dictionary, 1913, the word 'Execution'

is defined, legally, as “(a) The carrying into effect the judgment given in a Court

of law; (b) A judicial writ by which an officer is empowered to carry a judgment

into effect; which is a final process; (c) The act of signing, and delivering a legal

instrument, or giving it the forms required to render it valid, as the execution of

a Deed, or a Will.

According to Bouvier's Law Dictionary, Revised 6th Edition [1856],

Execution is defined as 'the act of carrying into effect the final judgment of a

Court, or other jurisdiction'. The Writ, which authorizes the Officer so to carry

into effect such Judgment, is also called an execution.

Therefore, a simple meaning of the term 'Execution' can be taken as the

Process of enforcing, or giving effect to the Judgment of a Court of Law.

RELEVANT PROVISIONS IN THE CODE OF CIVIL PROCEDURE:-

The Principles governing the Execution of Decree and Orders are dealt

with in Sections 36 to 74, and Order 21 of the Code of Civil Procedure, 1908.

The Proceedings in the Execution commence with filing an Application for

Execution, which is locally called as Execution Petition, before the Court. It will

be registered, when the requirements of the Rules 11 to 14 are complied by it.

Or else, it will be returned.

Now, it becomes necessary to know whether any Limitation is prescribed

for filing the Execution Petition, and other Applications filed during the

pendency of the Execution Petition.

Articles 135 and 136 of the Schedule of the Limitation Act, 1963 are very

important Provisions in this regard. They provide the Limitation, within which

the Execution of a Decree in specific instances has to be sought. They provide

as follows:-

38

Number of Description of Period of Time from which period Article Suits Limitation begins to run.

[as given in the Schedule of the

Act]

135 For enforcement Three years The date of the Decree, or

of a Decree whether a date is fixed for

granting a Performance, such date.

Mandatory

Injunction

136 For the execution Twelve years When the Decree or

of any Decree Order becomes

[other than a enforceable, or where the

Decree granting a Decree or any subsequent

Mandatory Order directs to any

Injunction], or payment of money, or the

Order of any Civil delivery of any Property

Court. to be made at a certain

date, or at recurring

periods, when default in

making the payment or

delivery in respect of

which execution is sought

takes place, Provided that

an Application for the

enforcement or execution

of a Decree granting a

Perpetual Injunction shall

not be subject to any

period of Limitation.

So, a keen perusal of the Article 135 shows that the Execution Petition

for seeking enforcement of Mandatory Injunction has to be filed within three

years from the date of Decree, or from the Date fixed for performance. It

provides the Limitation for seeking the relief under Order 21, Rules 32 and 35

of C.P.C. Likewise, a keen perusal of the Article 136 shows that a Decree, other

than a Decree for Mandatory Injunction, can be executed within twelve years

from the Date of Decree; and that there no Limitation for filing the Execution

Petition for enforcement of a Decree for Perpetual Injunction.

Can an Execution Petition can be filed with a Petition to condone the

Delay, under Section 5 of the Limitation Act? The answer is a strict 'No'. In the

39

decision reported in AIR 1999 Supreme Court 3421, in the case of W.B.

Essential Commodities Supply Corporation Vs. Swadesh Agro F& S Pvt. Ltd., it

was held that Section 5 of the Limitation Act do not apply to Execution

Petitions.

The exemptions to this Rule are provided under Section 6 and Section 7

of the Limitation Act itself. Section 6 deals with 'Legal Disability'. Sub-section

[1] clearly provides that where a person, entitled to institute a Suit, or make an

Application for the Execution of a Decree, is, at the time from which the

prescribed period is to be reckoned, a minor, or insane, or an idiot, he may

institute the Suit, or make the Application within the same period after the

disability had ceased, as would otherwise have been allowed from the time

specified therefor in the third column of the Schedule. Section 7 deals with

'Disability of one of several persons'. It provides that 'where one of several

persons jointly entitled to institute a suit, or make an application for the

execution of a Decree is under any such disability, and a discharge can be

given without the concurrence of such person, time will run against them all,

but, where no such discharge can be given, time will not run as against any of

them, until one of them becomes capable of giving such discharge without the

concurrence of the others, or until the disability has ceased.

Section 15 of the Limitation Act deals with 'Exclusion of time in

certain other cases'. Sub-section [1] provides that in computing the period of

limitation for any application for the execution of a Decree, the execution of

which has been stayed by injunction or order, the time of the continuance of

the injunction or order, the day on which it was issued or made, and the day

on which it was withdrawn shall be excluded. Sub-section [2] provides that in

computing the period of limitation for an application for execution of a Decree

by any Receiver or Interim Receiver, appointed in Proceedings for the

adjudication of a person as an insolvent, or by any Liquidator, or Provisional

Liquidator appointed in Proceedings for the winding up of a company, the

period beginning with the date of institution of such proceeding and ending

with the expiry of three months from the date of appointment of such Receiver

or Liquidator, as the case may be, shall be excluded.

Order 21 of the Code of Civil Procedure deals with the Process of

Execution elaborately. The Schedule of the Limitation Act prescribes Limitation

for several aspects like recording of Discharge, and filing of several Applications

in the course of the Execution Proceedings. Both Provisions are to be read

together. Important Provisions are as follows:-

(1) Order 21, Rule 2, C.P.C. provides that where any money payable

under a Decree, is paid out of Court, either in whole, or in part, then, the

Decree Holder shall certify such payment or adjustment to the Court, whose

duty it is to execute the Decree. According to Article 125 of the Schedule of the

40

Limitation Act, the adjustment or satisfaction of a Decree shall be recorded

within thirty days, when the payment or adjustment is made. Even in the

decision reported in AIR 1989 AP 264, it was held that the Executing Court

can take note of adjustment recorded within a period of thirty days.

(2) Order 21, Rule 69 [2], C.P.C. provides that where the Sale of the

E.P. Schedule Property is adjourned for a period, longer than thirty days,

then, a fresh proclamation under Rule 67 shall be made, unless the Judgment

Debtor consents to waive it.

(3) Order 21, Rule 84, C.P.C. provides that on every Sale of Immovable

Property, the Person, declared to be the Purchaser, shall pay immediately

after such declaration, a deposit of 25% on the amount of his Purchase Money

to the Officer or other Person conducting the Sale, and in default of such

deposit, the Property shall forthwith be re-sold. If the Purchaser is the Decree

Holder, entitled to set off the purchase money under Rule 72, the Court may

dispense with the requirements of this Rule.

(4) Order 21, Rule 85, C.P.C. [Madras High Court Amendment,

followed by the A.P. High Court] provides that the full amount of Purchase

money payable and the general stamp for the Certificate under Rule 94 or the

amount required for such stamp, shall be deposited into Court by the

Purchaser, before the Court closes on the 15th day from the Sale of Property,

provided that, in calculating the amount of purchase money to be so deposited,

the Purchaser shall have the advantage of any set off, to which he may be

entitled under Rule 72.

(5) Order 21, Rule 89, C.P.C. provides the Procedure for filing an

Application to set aside Sale on Deposit, by any Person claiming interest in the

Property sold. According to Article 127 of the Schedule of the Limitation Act,

the Petition to set aside a Sale in Execution of a Decree, including any such

Application by a Judgment Debtor, shall be filed within Sixty days from the

date of Sale. In the decision, given in P.K.Unni Vs. Nirmala Industries, reported

in 1990 [2] SCC 378, it was held that the amended period of 60 days is only

for making an Application; and that the time for deposit is only thirty days.

Subsequently, by way of Amendment of Order 21, Rule 92, Sub-Rule [2] of

C.P.C. in 2002, the period of deposit was amended as Sixty Days from the

date of Sale, and in the case of any clerical or arithmetical mistake on the part

of the Depositor, and such deficiency can be made good within such time, as

may be fixed by the Court.

(6) Order 21, Rule 90, C.P.C. provides the Procedure for filing an

Application to set aside the Sale on the ground of irregularity or fraud. Order

21, Rule 91, C.P.C provides for the Procedure for filing of an Application by

Purchaser to set aside Sale on ground of Judgment Debtor having no Salable

interest. As per Article 127 of the Schedule of the Limitation Act, the Limitation

for filing these Applications is also 60 days from the date of Sale.

(7) Order 21, Rule 92, C.P.C provides that where no Application is

made under Rules 89, 90 or 91, C.P.C., or where such an Application is made

and disallowed, the Court shall make an Order confirming the Sale, and

41

thereupon, the Sale shall become absolute. Order 21, Rule 94, C.P.C deals with

issuance of Certificate to Purchaser. It provides that when a Sale of Immovable

Property has become absolute, the Court shall grant a Certificate, specifying

the Property sold, and the name of the Person declared as Purchaser, and the

date on which the Sale has become absolute. According to Article 134 of the

Schedule of the Limitation Act, a Petition for delivery of possession by a

Purchaser of Immovable Property at a Sale in Execution of a Decree, shall be

filed within One year from the date when the Sale became absolute.

(8) Order 21, Rule 97, C.P.C deals with Resistance or Obstruction to

possession of Immovable Property. It provides that when the Holder of a

Decree, or the Purchaser of Property sold in execution of a Decree is resisted or

obstructed by any Person in obtaining possession of the Property, then, he may

make an Application to the Court, complaining of such resistance or

obstruction. According to Article 129 of the Schedule of the Limitation Act, the

Petition for possession after removing resistance or obstruction to delivery of

Possession of Immovable Property decreed, or sold in execution of a Decree,

shall be filed within Thirty days from the date of Resistance or Obstruction.

(9) Order 21, Rule 99, C.P.C deals with the Procedure, where a

Person, other than the Judgment Debtor, is dispossessed by the Decree Holder

or a Purchaser, he may make an Application to the Court, complaining of such

dispossession. According to Article 128 of the Schedule of the Limitation Act,

the Petition for possession by one dispossessed of immovable Property, and

disputing the right of the Decree Holder, or Purchaser at a Sale in Execution of

a Decree, shall be filed within Thirty days from the date of dispossession.

(10) Order 21, Rule 106, C.P.C provides for setting aside Orders passed

Ex-parte, etc., Sub-Rule [3] provides that an Application under Sub-Rule [1]

shall be made within thirty days from the date of the Order, or where, in the

case of an Ex-parte Order, the Notice was not duly served, within thirty days

from the date when the Applicant had knowledge of the Order. The Provisions

of Section 5 of the Limitation Act are made applicable to this Sub-Rule, by

adding Sub-Rule [4] by way of A.P. High Court Amendments, vide A.P.

Gazettee, dated 30.11.1999.

(11) Article 136 of the Schedule of the Limitation Act also covers the

Final Decree passed in a Partition Suit. As per the decision made in the case of

Hameed Joharan [d] Vs. Abdul Salam [d], reported in 2001 [3] ALD 111 = AIR

2001 SC 3404, it was held that the Limitation for execution of a Partition

Decree starts from the date of passing of Final Decree, irrespective of its being

engrossed on Stamp Papers.

(12) As per the Provisions of Order 34, Rule 5, C.P.C., the Petition to

set aside the Sale, in cases relating to debts due on Mortgage Deed, can be filed

at any time before confirmation of Sale.

42

(13) Apart from the above Provisions, Article 98 of the Schedule of the

Limitation Act provides that a Suit by a Person, against whom an Order under

Order 21, Rules 63 or Rule 103, C.P.C., was made, to establish the right which

such Person claims to the Property comprised in the Order, has to be filed

within one year from the date of the Final Order.

(14) Article 99 provides that a Suit to set aside the Sale by a Civil or

Revenue Court, or for arrears, has to be filed within one year from the date

when the Sale is confirmed, or would otherwise have become final and

conclusive had no such Suit been brought.

(15) If any Petition or Application has to be filed, and it does not come

under the purview of the any of the above said Provisions, then, such a Petition

or Application should be dealt under Article 137 of the Limitation Act.

According to Article 137 of the Schedule of the Limitation Act, any other

Application for which no period of limitation is provided elsewhere in this

Division, then, it should be filed within three years from the date when the

right to apply accrues.

In the decision given in the case of Union of India Vs. Momin Construction

Co., reported in AIR 1995 SC 1927, it was held that the Limitation for filing an

Application under Section 20 of the Arbitration Act is also governed by the

Provisions of Article 137.

In the decision given in the case of Additional Special Land Acquisition

Officer Vs. Thakurdas, reported in AIR 1994 SC 2227, it was held that Article

137 is applicable not only to the Application made under the C.P.C., but also to

any Application made under any Act to a Civil Court.

In the decision given in the case of Kerala S.E., Board Vs. T.P.

Kunhaliumma, reported in AIR 1977 SC 282, it was held that Article 137

applies to all Applications filed in the Civil Court.

(16) Apart from the above said Provisions of the C.P.C., there are some other

Provisions in the A.P. Civil Rules of Practice and Circular Orders, which also

provide the Limitation. Rule 208 [2] says that when the Execution Petition is

not filed within six months from the date of the receipt of the Decree, before the

Court, to which the Decree was transmitted for Execution, then, the

Transmitting Court has to sent back the Decree to the Court, which has sent

the Decree, certifying that no Application for Execution has been filed. Rule

276 provides that the Proclamation of Sale, when settled by the Judge, shall be

signed by him, and an order for Sale shall then be made, and the further

hearing of the Suit or Proceeding shall be adjourned to a day more than thirty

one days from the day fixed by the Court for the Sale.

CONCLUSION:- From the above Provisions, it is clear that Order 21 of the Code

of Civil Procedure itself contains elaborate and exhaustive Provisions for

Execution of the Decrees and Orders. It also provides how the matter has to be

43

dealt in different types of situations. It provides effective remedies not only to

the Decree Holders and Judgment Debtors, but also to the Objectors and Third

Parties, whose rights are involved. Only in exceptional cases, when the

Provisions are rendered ineffective, or incapable of giving relief to an aggrieved

Party, a Suit can be filed in a Civil Court.

44

Presented by : S.Vara Lakshmi, Junior Civil Judge

Mylavaram.

Introduction:

When a suit is decreed, it is the duty of the judgment debtor to discharge

his liability to decree holder. On the failure of the judgment debtor, the decree

holder may approach the court to enforce the decree passed by it and it is

known as execution of a decree or Implementation of decree is known as

execution. which is dealt under sections 36 to 74 and Order XX1 of Civil

procedure code. Execution is the last stage of any civil litigation.

Limitation in execution proceedings.

1. For delivery of possession by Court

One year from the date of

Auction Purchase under Order

21 rule 95 CPC confirmation of

Sale

2. For enforcement of a decree Mandatory

Injunction under Or 21 R 32r/w 35CPC

3 years from the date of decree

or date fixed for performance.

(Article 135 Limitation Act)

3. For execution of any decree other than

maintenance decree, mandatory and

perpetual injunction.

12 years from the date of

decree Or Order becoming

enforceable

(Article 136 Limitation Act)

4. For execution of any decree other than

maintenance decree, mandatory and

perpetual injunction.

12 years from the date of

decree Or Order becoming

enforceable (Article 136

Limitation Act)

5. To record an adjustment or satisfaction of a

decree under Or 21 R 2 CPC

30 days from the date of

payment or adjustment.

(Article 125 Limitation Act)

6. For the payment of the amount due under

decree by installments under Or 21 R 11(2)

CPC

30 days from the date of decree

7. To set aside sale in execution of decree

including E.A. By JD. Or 21 R 89, 90 and

Sec 47 CPC.

Note: For an EA under Or 21 R 89 CPC the

time for deposit is 30 days from the date of

sale.

60 days from the date of sale.

Supreme Court decision

in1990 (1) M.L.J. 36 to 40

45

8. To set aside sale in cases relating to debts

due on Mortgage Deed.

Any time before confirmation

Of sale as per Or 34 R 5 CPC.

9. For redelivery of possession under Or 21 R

99 CPC

30 days from the date of

dispossession

(Article 128 Limitation Act)

10. For removal of resistance or obstruction to

delivery to delivery under Or 21 R 97 CPC

30 days from the date

of resistance or obstruction.

(Article 129 Limitation Act)

11. For execution of decree granting perpetual

injunction .

No time limit prescribed.

12. Time limit for detention of an arrested JDR

in court premises under custody of officer

of court.

Not exceeding 15 days. 1st

proviso to Or 21 R 40 CPC.

Form No. 14 A

13. Time limit for deposit of 1/4th sale

proceeds

Immediately after declaration

of sale. If DH is the purchaser

may be

dispensed with.

14. Time limit for deposit of ¾th sale proceeds

and S.C. Charges (rule 94) or amount

required for stamps

15 days from the date of sale

Or 21 R 85 CPC.

15. Time limit for payment (deposit) of any

batta in execution except sale warrant

batta.

Within 2 days or period if so

fixed by the judge. (Rule 144

C.R.P.)

16. Time for payment of sale proclamation

batta along with S.P. Copies and Tom Tom

charges. (Movables)

within 2 days from the date of order. Mandatory provision. Rule 187 CRP.

17. Time for payment of sale warrant batta. A week before date fixed for sale.Mandatory provision Rule 187 CRP.

18. Return of decree of other courts entered in

CR 15 if execution is not levied in execution

court.

Within 3 days after expiry of 1 year Time from the date of receipt of other court decree. (Date of transmission is not the criteria. Rule 138 CRP)

19. Time for sale (Or 21 R 68 CPC) For immovables after expiry of 15 days from the date on which the copy of proclamation is affixed on the court notice board.

For movables it is 7 days.

46

Conclusion:

Order 21 contain elaborate and exhaustive provision for execution of

decrees and order, take care of different type of situation and provide effective

remedies not only to the decree-holder , judgment-debtors but also to the

objectors and third parties.

47

Presented by :Smt D. Sony, Spl. Judl. Magistrate of I Class for trying Pro., & Excise cases,Machilipatnam

General Study:

The law of Limitation is a statutory enactment which limits the time after

which proceeding cannot be maintained in a court of justice. A plea of

limitation is a plea of law which concerns the jurisdiction of the court.

Law of limitation bars only an action in a Court and does not bar the

plea taken in defence. The established rule of limitation is that law of limitation

is not applicable to a plea taken in defence unless expressly a provision is

made in the statute.

The Limitation Act is an exhaustive Statute governing the law of

limitation in India in respect of all matters specifically dealt with by it and the

Indian Courts are not permitted to travel beyond its provisions to add to or

supplement them. It bars the remedy but does not destroy the right. The

provisions of the Act have to be construed strictly as held in Srinivasa Rao vs

C.V. Reddy reported in 1970 (1) ANWR 405.

The present Limitation Act 36 of 1963 repealed the Old Act of 1903 came

into force on 5th October, 1963 is to consolidate and amend the law for the

limitation of suits and other proceedings.

It is also trite the provisions of the Code of Civil Procedure as also the

Limitation Act have all along been considered to be supplemental to each other.

It is also well settled that execution of the decree would mean the enforcement

of the decree by what is known as process of execution. All processes and

proceedings in aid to or supplemental to execution would come within the

meaning of the word “execution” within the meaning of Sec.15(1) of the

Limitation Act as held in Anandi Lal vs Ram Narain reported in AIR 1984

SC 1383.

There are two divisions in the Law of Limitation. One covered by sections

and the other by Articles. The sections in the body of the Limitation Act govern

and control the application of the article in the schedule except so far the

language of a particular article clearly precludes the application of any such

section. Sec.151 of the Civil Procedure can not be invoked to by pass the

limitation prescribed under the Limitation Act. Limitation Act is exhaustive and

can not travel beyond its provisions. This view is laid down in Sita Devi vs

Anna Rao reported in AIR 1970 SC 1383.

For every recurring infringement as long as the application was filed

within time the executing court is duty bound to give relief to the decree-

holder.

Section 5 of Limitation Act providing condonation of delay do not apply to

executing proceedings. But Sec.5 is applicable to an order over an order passed

48

under O.XXI, CPC as held in Mahesh Chandar vs Smt.Darshan Kaur

reported in AIR 1982 NOC 69 (Del). Sec.18 of Limitation Act has

application for execution in view of new Explanation CI(c). Art.120 of Limitation

Act providing limitation to bring legal representatives of deceased on record has

no application to execution proceedings as held in K. Damodar Guptha vs

K.Venkateswara Rao reported in 1979 (1) ALT 372. The execution petition

filed beyond 12 years from the date of decree is barred by limitation as per the

provision under Art.136 of the Limitation Act, 1963, so also held in

Doraiswamy vs Rasayamamal reported in 1995 (II) MLJ 574. There might

be a succession of execution applications within the period prescribed by this

Article. Each application renews the period of 12 years time.

LIMITATION IN EXECUTION PROCEEDINGS

Interpretation :

The principles underlying the provisions prescribing limitation are based

on public policy aiming at justice, the principles of repose and peace and

intended to induce claimants to be prompt in claiming relief. Hardship or

injustice may be a relevant consideration in applying the principle of

interpretation of statute, but cannot be a ground for extending the period of

limitation held in Damodaran Pillai vs South Indian Bank Limited

reported in AIR 2005 SCW 4603.

In construing a special statute providing for limitation, consideration of

plea of hardship is irrelevant. A special statute providing for special or no

period of limitation must receive a liberal and broader construction and not a

rigid or a narrow one. The intent and purport of the parliament enacting the

said Act furthermore must be given its full effect. The provisions of the

Limitation Act have no application, so far as directions required to be issued by

the Special Court relating to the disposal of attached property are concerned as

held in S.Synthetics Limited vs Fair Growth Financial Limited reported in

2004 IND LAW SC 715. It must, however be remembered that the purpose of

an execution proceeding is to enable to decree-holder to obtain the fruits of his

decree. In case, where the language of the decree is capable of two

interpretations, one of which assists the decree holder to obtain the fruits of

the decree and the other prevents him from taking the benefits of the decree,

the interpretations which assists the decree holder should be accepted. The

execution of the decree should not be made futile on mere technicalities which

does not, however, mean that where a decree is incapable of being executed

under any provision of law it should, in all cases, be executed notwithstanding

such bar or prohibition. A rational approach is necessitated keeping in view

the prolonged factum of litigation resulting in the passing of a decree in favour

of a litigant. The policy of law is to give a fair and liberal and not a technical

construction enabling the decree holder to reap the fruits of his decree. This

49

view has been laid down in Deep Chand vs Mohan Lal reported in AIR 2000

SC 176, Akshoy Kumari Debi vs Nalini Ranjan Mukharji reported in AIR

1950 CAN 493, Kotta Annapurnamma vs Makku Venkamma reported in

AIR 1938 MAD 323.

Enforceability of limitation :

The limitation for execution of a decree runs from the date of the decree

capable of execution and that is the decree of the appellate court which

supersedes that of the Court of first instance as held in AIR 2001 SC 3404 or

that if mesne profits are ordered from the date of suit until the expiry of three

years after the date of the decree, the decree to be considered is the decree

capable of execution so that if the decree or the trial is confirmed in appeal,

three years will begin to run from the date of the appellate decree.

Bar of limitation :

A decree-holder after securing a decree went into slumber and remained

as such for a pretty long period like Rip Van Winkle. When he awoke he

realized that his decree became rust corroded and lost its enforceability due to

efflux of a number of years. Period of limitation in the matter of Execution of

decree is governed by Art.136 which prescribes period of twelve years when the

decree or order becomes enforceable. The period of 12 years is to be computed

from the date when the decree or order become enforceable as held in

Hungerford Investment Trust vs. Haridas Mundhra & Others reported in

(1972) 3 SCC 684.

Important Provisions

Section 4:

Expiry of Prescribed period when court is closed:

Where the prescribed period of any suit, appeal or application expires on

a day when the court is closed, the suit, appeal or application may be

instituted, preferred or made on the day when the court reopen.

Explanation:- A Court shall be deemed to closed on any day within the

meaning of this section if during any part of its normal working hours it

remains closed on that day.

Section 4 is applicable to an application to set a side a sale under O.XXI,

R.89 of the Code of Civil Procedure Jagu Anya Adhav vs Bajarang Aubu

Jadav reported in AIR 1969 BOM 90.

It is not applicable to payments to be made under a private agreement

between the parties.

Section 15:

Exclusion of Time in certain other cases:

All processes and proceedings in aid to or supplemental to execution

would come within the meaning of the word “execution” within the meaning of

Sec. 15(1) of the Limitation Act as held in Anandi Lal vs Ramnarayan

50

reported in AIR 1984 SC 1383. Sec.15 of the Limitation Act deals with

exclusion of time in computing the period of limitation for any application for

the execution of decree which has been stayed by injunction or order. It is

based on the well established principle of judicial procedure that where any

proceedings are stayed by an order of a Court or injunction issued by any

Court, that period should be excluded in competing the period of limitation laid

down by any law. This view has been laid down in Director of Inspection, IT

vs Pooran Mal and Sons reported in AIR 1975 SC 67. That means the

period which is actually to interdicted is to be excluded. It further provides

that the period between the filing of the petition for winding up or adjudication

and the appointment of the receiver (including interim receiver) or liquidator

(including provisional liquidator) and three months period thereafter should be

excluded.

An application for execution of a decree shall not be pending at the time

of passing of injunction or stay order for applying Sec.15 of the Limitation Act

as held in Krishna Chandra Sahani vs Anem Peba Siva Parvathamma

reported in AIR 1953 ORI 13.

An order granting time to judgment-debtor to pay amounts to stay order

held so in Meer Bismillah Meer Janju vs Jagannadh Binjraj reported in AIR

1947 NAG 101. Whereas consigning the records to record room does not

amount to stay order. An order allowing execution takes place only on

condition amounts to operate as stay. An adjournment of execution case do

not amount to stay order.

Sec.15 does not affect the law with regard to an application to revive an

application for execution already made. The decree holder can ask the court to

revive the execution proceeding which is suspended for no fault of decree-

holder as laid down in 1954 KER LT 905.

Section 17 :

Effect of fraud or mistake

Section 17 can be invoked by the judgment-debtor to set aside sale with

the time prescribed or when he becomes aware or could have become aware

had he been reasonably deligent of the sale if there is fraudulent concealment

of the proceedings by the decree-holder's right upto the time of sale.

Suppression of notices or other processes by a deliberate contrivance or a

willful misstatement of the value of the property to be sold in the sale

proclamation or a dishonest combination to obtain by artifice the property at a

low value amounts to fraud. If it is found that fraud was practiced in the court,

the court could set aside execution sale under Sec.17 as held in Sisir Kumar

Mukarji vs Kanya Lal Jhewar reported in AIR 1971 CAL 87. Sec.17(2)

provides that where a judgment-debtor, has by fraud or force, prevented

execution of decree or order within the period of limitation the court may, on

51

the application of the judgment creditor made after the expiry of such period,

extend the period for the execution of the decree or order. The benefit of

extension is made available only if the application for extension is made within

one year from the date of the discovery of fraud or cessation of force.

Article 125:

Limitation for Recording Adjustment or Satisfaction of Decree:

Description of suits Period of Limitation Time from which period

begins to run

125. To record in adjustment

or satisfaction of a decree.

30 days When the payment or

adjustment is made.

Order XXI, Rule I of Code of Civil Procedure cast a duty on the decree-

holder to certify payment or adjustment of decree to the court. Whereas O.XXI,

R.2 CPC affords protection to the judgment-debtor in the event of failure of the

decree-holder to act under sub-rule (1) and involves a judicial decision by the

court whether the payment should be recorded. This was held in Sri Prakash

vs Allahabad Bank reported in AIR 1929 PC 19. This Act provides the

period of limitation for recording payment or adjustment by the court at the

instance of judgment-debtor or a surety for judgment-debtor under O.XXI,

R.2(2) CPC. There is no specific Article in the Limitation Act for certification by

the decree holder under O.XXI Rule 2(1) of the CPC. This Article is inapplicable

to an adjustment made or agreement entered into after the date of the decree of

the court of first instance but before the date of the appellate decree dismissing

the appeal. This article is not applicable to applications made under Insolvency

Acts. The plea of fraud saves limitation under this Article. From the date of

dismissal of decree-holder's application for recording adjustment, it saves

limitation for judgment-debtor if he makes an application for the same purpose

within the period of limitation prescribed by this Article as laid down in Kailasa

vs Duraippa reported in AIR 1939 Madras 163.

Article 126:

Limitation for installment payment:

Description of suits Period of Limitation Time from which period

begins to run

126. For the payment of

the Amount of a decree

by installment.

30 days The date of the decree.

Article 126 of the Limitation Act deals with the period of thirty days from

the date of the decree for the payment of the amount of a decree by

installment. An application to that effect should be made within the period of

52

thirty days from the date of decree praying for payment of decretal amount by

installment to the court which passed the decree. If the court has entertained

and decided the application filed beyond thirty days, it is deemed that the

application was filed within time and the order is legal.

Article 127: Limitation Setting aside Court sale:

Description of suits Period of

Limitation

Time from which period

begins to run

127. To set aside sale in execution

of a decree, including any such

application by a judgment debtor.

60 days The date of the decree.

Article 127 of the Limitation Act provides a period of sixty days for setting

aside sale from the date of sale if it is voidable as held in Merla Ramanna vs

Nallapu Raju reported in AIR 1956 SC 87. The period of 60 days was

substituted for the words “thirty days” by Amending Act 104 of 1976

(w.e.f.1.2.1977) as per Sec.98 of the Principal Act. This Article 127 is applicable

to a case under O.XXI, Rr.72, 89 to 91 or is one under Sec.47 CPC – K.

Hanumanthaiah Setty and Sons vs S. Ramalingappa reported in AIR 1970

AP 286. An Application to set a side sale is not necessary if the sale is void and

hence this Article has no application to such cases. To set aside sale as void,

Art.137 is applicable - Merla Ramanna vs Nallapu Raju reported in AIR

1956 SC 87. An application by the purchaser on the ground that the

judgment-debtor has not salable interest is governed by this Article - AIR 1935

MAD 340. The period of limitation fixed by this Article can not be enlarged –

Manthrani Devi vs Chathu Prasad reported in AIR 1925 CAL 515. In case of

any special law prescribing limitation, the application to avoid sale is governed

by that local or special law – Challammai vs Sita reported in AIR 1983 MAD

100.

Executing Court can not confirm sales before expiry of 60 days time

prescribed under Art.127 of Limitation Act, 1963. This view has been laid down

in G.V.S.Reddy vs V. Krishnayya Naidu reported in 2005 (4) ALT 238.

Article 128: Limitation for possession by dispossessed purchaser:

Description of suits Period of Limitation

Time from which period begins to run

128. For possession by one dispossessed of unmoveable property and disputing the right of the decree holder of purchaser at a sale in execution of a decree.

30 days The date of the dispossession.

Article 128 of the Limitation Act deal with thirty days period of limitation

for filing an application for possession who is dispossessed of immovable

property and disputing the right of the decree holder or purchaser at a sale in

53

execution of a decree. A separate suit for such purpose is not maintainable (

O.XXI, R.101 CPC).

Article 129:

Limitation for possession after removal of obstruction.

Description of suits Period of Limitation Time from which period

begins to run

129. For possession after

removing resistance or

obstruction to delivery of

possession of immovable

Thirty days The date of resistance or

obstruction.

Article 129 deals with the case of resistance or obstruction to the delivery

of possession immovable property. A period of thirty days is provided for

removal of such resistance obstruction (O.XXI, R.97 CPC).

Article 134:

Limitation for delivery of possession by Court Auction-Purchaser:

Description of suits Period of Limitation Time from which period

begins to run

134. For delivery of

possession by a purchaser of

immovable property at a sale

in execution of decree

One year When the sale becomes

absolute.

Article 134 provides a period of one year for delivery of possession by a

purchaser of immovable property at a sale in execution of a decree. The

purchaser may be either a decree holder or any other person – AIR 1973 KER

204. Suit for delivery of possession of property purchased at a court auction

was converted into an application under Sec.47 by the court is covered by this

Article – (1980) 1 Mad LJ 103 (DB).

Article 135 :

Limitation for Execution of Mandatory Injunction Decree

Description of suits Period of Limitation Time from which period

begins to run

135. For the enforcement of a

decree granting a mandatory

injunction.

Three years The date of the decree of

where a date is fixed for

performance, such date.

Article 135 is applicable only for enforcement of a decree granting

mandatory injunction and does not apply to prohibitory injunction - Subha

Singh vs Bhajicha Singh AIR 1980 PUNJ 62. For the execution of

compromise decree in a suit for mandatory injunction this Article is applicable

54

– 1977 ALT 728. In case of decree for removal of debris from land two months

time granted by court and in such cases the limitation beings to run a after the

expiry of two months from the date of the decree when it becomes executable -

Nanwa vs Moulana Abdul Mughni reported in AIR 1981 ALL 143.

Period of three years limitation is applicable as per Art. 135 & 136 of

Limitation Act in enforcing the order of injunction or mandatory injunction.

Article136 :

Limitation for Execution of Decree other than mandatory Injunction :

Description of Suits Period of

Limitation

Time from which period begins to run

136. For the execution of

any decree (other than

decree granting a

mandatory injunction) or

order of any Civil Court

Twelve years Where the decree or order become

enforceable or where the decree or any

subsequent order directs any payment

of money or the deliver of any property

to be made at a certain date or at

recurring periods, when default in

making the payment of deliver in respect

of which execution is sought take place,

provided that an application for the

enforcement of execution of a decree

granting a perpetual injunction shall not

be subject to any period of limitation

(i) Legislative changes :

Article 136 substantially reproduces the provisions of Sec.48(1) of the

Code of Civil Procedure which by reason of the Act stands repealed. Thus there

is now only one period of limitation for an application for execution and there is

no separate limitation governing such of the several execution application

which the decree holder can make within that period under the Code of Civil

Procedure – Sahanlal vs Raghunadh Prasad reported in AIR 1981 ALL 235

(FB). As per the Amendment, the execution petition filed beyond 12 years from

the date of decree is barred by limitation as per the provisions under Art.136 of

the Limitation Act, 1963 – 1995 (II) MLJ 574.

(a) Article 136 Limitation Act, 1963 :

Period of limitation in the matter of execution of decree is governed by

Art., 136 which prescribes period of 12 years when the decree of order becomes

enforceable. The period of 12 years is to be computed from the date when the

decree or order becomes enforceable. The execution petition filed beyond 12

years from the date of decree is barred by limitation as per the provision under

Art.136 of the Limitation Act, 1963. There might be a succession of execution

application within the period prescribed by this Article as held in Krupanna

Gounder vs Nagammal reported in 1996 (II) MLJ 470.

a) Applicability :

55

This Article is applicable to the following cases :

(a) decree or orders which becomes enforceable ;

(b) execution of orders which becomes enforeable;

e) execution of decree or order by the Government;

(d) execution of final decree;

(e) an application for restitution under Sec.144 of Code Civil Procedure;

(f) decree or orders of a Civil Court including Revenue Courts provided that the

special or local law, if any, governing the case, does not prescribed a period

of limitation different from that prescribed in this Article;

(g) application to court passing decree to take action under O.XX!, R.52

CPC;

(h) Awards passed by special Tribunals of Courts;

This Article is not applicable to the following cases :

(a) execution of foreign decree;

(b) decree order which are not enforceable;

(i) any special or local law which prescribes a different period of limitation

from that prescribed by this Article;

(d) decree or orders of Revenue Courts for which special period of

limitation is prescribed.

(e) an application by Court action purchaser of property for possession of the

property purchased;

(f) an application for personal decree against the mortgageor under O.XXXIV,

R.6 of Civil Procedure Code;

(g) applications in respect of a decree which is not in a form capable of

execution.

(iv) Applications not one for execution :

(a) applications for the passing of a final decree in terms of the preliminary

decree;

(b) an application for personal decree against the mortgagor under

O.XXXIV, R.6 CPC;

(c) an application by a Court auction purchaser for possession of property

which he purchased;

(d) preliminary decree in a partition suit ;

(e) application by a person merely for his being recognized as transferee of

decree without a prayer for execution;

(f) application for transfer of a decree;

(g) application by decree holder for postponement of execution sale:

(h) application to Court to direct Collector to expedite partition

proceedings;

(i) application for attachment under Sec.46 of CPC;

(j) an application for rateable distribution;

56

(k) an application in suit to sell property given by defendant to Court as

security;

(l) an application to bring legal representatives on record;

(d) the deposit of process fees for issue of attachment in execution decree;

(n) an application asking for time to put in fresh list of properties;

(o) application for sale or property under attachment;

(p) application by auction purchaser for return of purchase money.

Enforcement of decree :

(a) Limitation for enforcement of decree or order : Period of

limitation in the matter of execution of decree is governed by Art.136 while

prescribes period of 12 years when the decree or order becomes enforceable as

held in Ratan Sing vs Vijay Singh reported in 2001 (1) SCC 469. The

period of 12 years is to be computed from the date when the decree or order

becomes enforceable. A decree within the meaning of Sec.2(2) of the Code

would be enforceable in respective of the fact whether it is passed by the trial

court, the first appellate court or the second appellate court. Article 136 by

reason for amendment, the filing of the execution petition has been simplified

and the difficulties faced for computation which used to arise for grant of stay

or not has become material. In terms of Art.136 of the Act, thus, a decree can

be executed within 12 years when it becomes enforceable held so in Deep

Chand vs Mohan Lal reported in AIR 2000 SC 1760.

(b) Decree for delivery of possession : Enforcement of decree for

delivery of possession starts from the date when sale deed was executed in a

decree for specific performance of contract. Enforcement of decree as per

Art136 of Limitation Act, 1963 in a decree for specific performance means

“entitled to possession of” of the land as soon as the sale deed was executed

and registered.”

(c) In case of partition decree : In case of partition decree, the period

of limitation can not begin to run till it is engrossed on requisite stamp paper is

not correct. The enforceability of such a decree can not be the subject matter of

Sec.35 of Indian Stamp Act and hence the limitation can be said to be under

suspension. The whole purport of the Indian Stamp Act is to make available

certain dues and to collect revenue but it does not mean and imply, overriding

the effect over another stature operating on a completely different sphere –

Hameed Johara vs Abdul Salam reported in (2001) 7 SCC 573.

(d) Exceptions to period of limitation prescribed under Art.136 :

However, there are exceptions to this situation, that when a decree may not be

enforceable on the date it is passed which depends on happening of certain

event or on fulfillment of certain other conditions by the parties in the case or

by an external agency, under any provision of law – Anthoni Sami vs

Arunarandam Pillai reported in 2001 (9) SCC 658.

57

(e) When no time fixed for performance : In Kharak Singh vs

Habhajan Singh reported in 1978 CUR LJ (Civil) 470 (P & H), it was held by

this court that where the court had passed a decree for possession by way of

specific performance in favour of the decree holder on deposit of certain some

amount, but did not fix any time for depositing the amount the limitation for

executing the decree would be 12 years and the decree holder was entitled to

deposit the amount within the period of limitation and execute the decree.

(f) Merger : A decree within the meaning of Sec.2(2) of the Code

would be enforceable irrespective of the fact whether it is passed by the trial

court, the first appellate court or the second appellate court. Article 136 by

reason if amendment, the filing of the execution petition has been simplified

and the difficulties faced for computation which used to arise for grant of stay

or not has become. In terms which used to arise for grant of stay or not his

become In terms of Art.136 of the Act, thus, a decree can be executed within 12

years when it becomes enforceable. Merger or a decree takes place irrespective

of the fact as to whether the appellate court affirms, modified or reverse the

decree passed by the trial court. When an appeal is dismissed on the ground

that delay in filing the same is not condoned. The doctrine of merger shall not

apply. In the case on hand upon dismissal of second appeal by High Court was

dismissed on 18.04.1985 and a formal decree was drawn up on 30.10.1986

and execution petition was filed on 26.03.1987, held to be withing item as it

was filed within 12 years from the date of drafting of formal decree by High

Court in second appeal. Held, executing petition it is time. When second

appeal was dismissed as a corollary to the dismissal of application for

condonation of delay has no effect on the decree passed by the first appellate

court. When a special leave petition si dismissed summarily, doctrine of merger

does not apply but when an appeal is dismissed, it does.

(g) Closed, struck off, etc., effect on enforcement of decree : It is

true that Courts have condemned the practice of executing Court using

expressions like “closed”,. “closed for statistical purposes”, “struck off”, etc.,

and they also pointed out that there was no provision in the Code of Civil

Procedure for making such orders., but assuming that the court has no such

power, the passing of such an order can not tantamount purposes it manifest.

It is intended not to finally dispose of the application but to keep it pending.

Whether the order was without jurisdiction or whether it was valid, the legal

position would be the same, in one case it would be ignored and it the other, it

would mean what is stated. In either case the execution petition would be

pending on the file of the Court. That apart, it is not the phraseology used by

the executing court that really matters, but is really the substance of the order

that is material. Whatever terminology may be used, it is for the court to

ascertain, having regard to the circumstances under which the said order was

58

made, whether the court to finally terminate the execution proceedings. If it did

not intend to do so., it must be held that the execution proceedings were

pending on the file of the court.

(h) Duty of Court : The Court is entrusted with a duty even if no

objection has been raised to examine the question of limitation and it is only

after finding that the institution of the proceedings before it is within limitation

that it acquires the jurisdiction to entertain the same. Limitation is a condition

precedent for exercise of jurisdiction. If the proceedings are not instituted

within jurisdiction , the court has no jurisdiction to proceed in the matter and

all proceedings are void at the inception.

Extension of time :

(a) By reason of adjudication in insolvency : Sub-section (2)

Section 78 Provincial Insolvency Act, 1920 provides the period from the

adjudication to its amulment must be deducted in computing the period of

limitation for an execution application.

(b) By the sections in Limitation : Sec.18 and 19 of Limitation Act

by making acknowledgment or payment does not give a fresh starting point of

limitation for application for execution of a decree or order.

(c) Statutory intervention if extends limitation : When there was a

legislative bar for execution of a decree and later due to legislative intervention

decree had to be scaled down and amended then enforceability of decree shall

commence when bar cases or from date decree is amended and scaled down

and hence execution petition not barred by Limitation.

(d) Step-in-aid : Any number or execution applications within the

period of twelve years saved. Since the previous execution petition was not

disposed of on merits, the same should be held to be pending so as to enable

the petitioner to work out his rights under appropriate provisions.

(e) By reason of appeal or review : The period of limitation for filing

execution application starts from the date of the final decree or order of the

appellate court or the withdrawal of the appeal. Limitation for execution of the

decree against the non appearing defendants also would run from the date of

the appellate decree. Where two distinct decrees were passed in a suit and an

appeal was preferred against one of them it was not a case of an appeal against

portion of the decree and such appeal would not save limitation for execution of

other decree. Limitation under this Article starts from the date of review of

judgment and not from the original decree. Review in part also save limitation

against the other part.

(f) Installment decree : Time in respect of each installment will run

from the date on which such installment falls due.

59

(g) Payment to be made at a certain date : A decree directing

maintenance to be paid annually on a certain date is a decree directing

payment to be made on a certain date and limitation starts from that date.

(h) Local or special law : The time prescribed by local or special law

that will govern the application for execution.

The provision u/s.31(1) r/w. S.32 of the SFC's Act, 1951 is a

proceeding in the nature of execution of decree by mortgagee. It is no doubt

true that there can be no decree passed in the said proceedings because

proceedings are at the stage posterior to the passing of a decree. Because the

present proceedings are in nature of execution proceedings and the financial

corporation are decree holder, the provisions of Article 136 would clearly apply

and provisions of Art 137 will not be applicable to the present case which is

residuary in nature.

(i) Decree for refund recovered in prior executor : Fresh

applications for execution is maintainable at any time within 12 years from the

date of the decree for refund notwithstanding the expiry of 12 years from the

date of the decree sought to be executed.

(j) Contingent events : When there is a direction in the decree for

order that happening of certain event, the same is enforceable saves limitation

on the happening of that event.

(i) Revival of application :

An execution application must be deemed to be pending so long as no

final order disposing of it judicially has been passed thereon. A subsequent

application for execution is merely a continuation or revival of the original

proceeding. But where a final judicial order terminating the proceedings are

passed, any subsequent application for revival or continuation of the original

proceedings will not be.

(iv) Limitation against dead judgment-debtor :

An application against a judgment debtor who is dead is a nullity so far

as such judgment debtor is concerned. The implemented of the legal

representatives in the petition after 12 years would not save limitation against

them.

(vi) Decree for injunction :

Decree granting mandatory injunctions are expressly excluded from the

applicability of Art.136of the Limitation Act and is governed by Art.135 of

Limitation Act. The proviso to the Art.136 of Limitation Act provides that a

decree for perpetual shall not be subject to any period of limitation at all.

1. Absence or stay in appeal if bars limitations :

Pendency of Second Appeal when in the absence or stay of execution of

decree is enforceable within 12 years from its disposal.

60

Article 137 : Limitation not Prescribed Elsewhere :

Description of suits Period of Limitation

Time from which period begins to run

137. Any other application for which no period of Limitation is provided elsewhere in this Division.

Three years When the right to apply accrues.

The following applications have been held to fall under this Article:

1. Objections falling under Sec.47 CPC.

2. To set aside sale for absence of notice under O.XXI, R 6 CPC.

3. For refund of excess amount in execution.

4. Want of notice under O. XXI, R 64 falls under Sec.47.

5. An application for refund of purchase money under O.XXI, R.93 CPC.

6. For resale of property in execution upon default of the auction purchaser

to pay the purchase money as per O.XXI, R.85 CPC.

7. To an application made for revival of previous execution case upon sale

being set aside.

The following applications do not fall under this Article:

(1) an application under O.XXI, R.90 CPC.

(2) Certification by a decree holder under O.XXI, R.28 CPC.

(3) an application for grant of sale certificate under O.XXI, R.94 CPC.

Applicability of Order XXI Rule 106 (4) of CPC :

The controversy revolves around applicability of Section 5 of Limitation

Act so as an application under Order XXI Rule 106(1) of CPC. Section 5 of

Limitation Act in its parenthesis between words ‘any application’ and ‘may be

admitted’ contains prohibition to the affect that ‘other than an application

under any of the provisions of Order XXI of CPC’. Thus, Section 5 of Limitation

Act has no application to execution proceeding under Order XXI of CPC.

Setting at rest the controversys around the application of Section 5 of

Limitation Act to the proceedings in execution the full bench of the AP High

Court held that notwithstanding the field provisions in 1999 and amendments

to CPC made in the year 2002, Order XXI Rule 106 (4) of CPC as inserted by

the AP High Court in excise of powers under Section 122 of CPC unables a

party to proceedings to file application under Section 5 of Limitation Act

seeking condonation of delay in filing an application to set aside an exparte

order passed under Order XXI Rule 106(1) of CPC as held in CH.Krishnaiah vs

CH. Prasada Rao reported in 2009(6) ALD 195 (FB).

Conclusion:

The policy of law of limitation aids only to those who are vigilant and

not to those who sleep over their rights (Vigilantibus Non Dormentibus Juria

Subvenient).

As per O.XXI Rule 21(2) Page 6