Process for Execution
24. Process of execution.__ (1) When the preliminary measures (if any) required by the foregoing
rule have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the
execution of the decree.
(2) Every such process shall bear date the day on which it is issued, and shall be signed by the
Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the
Court and delivered to the proper officer to be executed.
(3) In every such process a day shall be specified on or before which it shall be executed.
25. Endorsement on process. (1) The officer entrusted with the execution of the process shall
endorse thereon the day on, and the manner in, which it was executed, and, if the latest day specified
in the process for the return thereof has been exceeded, the reason of the delay, or, if it was not
executed, the reason why it was not executed, and shall return the process with such endorsement to
the Court.
(2) Where the endorsement is to the effect that such officer is unable to execute the process, the
Court shall examine him touching his alleged inability, and may, if it thinks fit, summon and examine
witnesses as to such inability, and shall record the result.
1 Rule 23A and heading ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.
Code of Civil Procedure, 1908 [1908 : V]
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Stay of Execution
26.When Court may stay execution.__(1) The Court to which a decree has been sent for
execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable
time, to enable the judgmentdebtor
to apply to the Court by which the decree was passed, or to any
Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to
stay execution, or for any other order relating to the decree or execution which might have been made
by such Court of first instance or appellate Court if execution had been issued thereby, or if application
for execution had been made thereto.
(2) Where the property or person of the judgmentdebtor
has been seized under an execution the
Court which issued the execution may order the restitution of such property or the discharge of such
person pending the result of the application.
1* * * * * * *
27. Liability of judgment debtor or discharged. No order of restitution or discharge under rule
26 shall prevent the property or person of a judgmentdebtor
from being retaken in execution of the
decree sent for execution.
28. Order of Court which passed decree or of appellate Court to be binding upon Court
applied to. Any order of the Court by which the decree was passed, or of such Court of appeal as
aforesaid, in relation to the execution of such decree, shall be binding upon the Court to which the
decree was sent for execution.
29. Stay of execution pending suit between decreeholder
and judgmentdebtor.
Where a suit
is pending in any Court against the holder of a decree of such Court, on the part of the person against
whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit,
stay execution of the decree until the pending suit has been decided.
Mode of Execution
30. Decree for payment of money. Every decree for the payment of money, including a decree for
the payment of money as the alternative to some other relief, may be executed by the detention in 2* *
* prison of the judgmentdebtor,
or by the attachment and sale of his property, or by both.
31. Decree for specific moveable property.__ (1) Where the decree is for any specific moveable,
or for any share in a specific moveable, it may be executed by the seizure, if practicable, of the
moveable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such
person as he appoints to receive delivery on his behalf, or by the detention in 2* * * prison of the
judgmentdebtor,
or by the attachment of his property, or by both.
(2) Where any attachment under subrule
(1) has remained in force for six months, if the
judgment debtor has not obeyed the decree and the decree holder has applied to have the
1Subrule
(3) omitted by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.
2Omitted by Act XIV of 1994, s.11.
Code of Civil Procedure, 1908 [1908 : V]
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attached property sold, such property may be sold, and out of the proceeds the Court may award to the
decreeholder,
in cases where any amount has been fixed by the decree to be paid as an alternative to
delivery of moveable property, such amount, and, in other cases, such compensation as it thinks fit, and
shall pay the balance (if any) to the judgment debtor on his application.
(3) Where the judgmentdebtor
has obeyed the decree and paid all costs of executing the same
which he is bound to pay, or where, at the end of six months from the date of the attachment, no
application to have the property sold has been made, or, if made, has been refused, the attachment
shall cease.
32. Decree for specific performance for restitution of conjugal rights, or for an injuction.__
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution
of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree
and has willfully failed to obey it, the decree may be enforced 1[in the case of a decree for restitution
of conjugal rights by the attachment of his property or, in the case of a decree for the specific
performance of a contract or for an injunction] by his detention in 2* * * prison, or by the attachment
of his property, or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has been
passed is a corporation, the decree may be enforced by the attachment of the property of the
corporation, or, with the leave of the Court, by the detention in 2* * * prison of the directors or other
principal officers thereof, or by both attachment and detention.
(3) Where any attachment under subrule
(1) or subrule
(2) has remained in force for one year, if
the judgmentdebtor
has not obeyed the decree and the decreeholder
has applied to have the attached
property sold, such property may be sold ; and out of the proceeds the Court may award to the decreeholder
such compensation as it thinks fit, and shall pay the balance (if any) to the judgmentdebtor
on
his application.
(4) Where the judgment debtor has obeyed the decree and paid all costs of executing the same
which he is bound to pay, or where, at the end of one year from the date of the attachment, no
application to have the property sold has been made, or if made has been refused, the attachment shall
cease.
(5) Where a decree for the specific performance of a contract or for an injunction has not been
obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the
act required to be done may be done so far as practicable by the decreeholder
or some other person
appointed by the Court, at the cost of the judgmentdebtor
and upon the act being done the expenses
incurred may be ascertained in such manner as the Court may direct and may be recovered as if they
were included in the decree.
1Ins. by the Code of Civil Procedure (Amdt.) Act, 1923 (29 of 1923), s.2.
2Omitted by Act. XIV of 1994, s.11.
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Illustration
A, a person of little substance, erects a building which renders uninhabitable a family mansion
belonging to B. A, inspite
of his detention in prison and the attachment of his property, declines to
obey a decree obtained against him by B and directing him to remove the building. The Court is of
opinion that no sum realizable by the sale of A's property would adequately compensate B for the
depreciation in the value of his mansion. B may apply to the Court to remove the building and may
recover the cost of such removal from A in the executionproceedings.
33. Discretion of Court in executing decrees for restitution of conjugal rights.__ (1)
Notwithstanding anything in rule 32, the Court, either at the time of passing a decree 1[ against a
husband] for the restitution of conjugal rights or at any time afterwards, may order that the
decree 2[shall be executed in the manner provided in this rule].
(2) Where the Court has made an order under subrule
(1) 3* * *, it may order that, in the event of
the decree not being obeyed within such period as may be fixed in this behalf, the judgmentdebtor
shall make to the decreeholder
such periodical payments as may be just, and, if it thinks fit, require
that the judgmentdebtor
shall, to its satisfaction, secure to the decreeholder
such periodical payments.
(3)The Court may from time to time vary or modify any order made under subrule
(2) for the
periodical payment of money, either by altering the times of payment or by increasing or diminishing
the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered
to be paid, and again revive the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payable
under a decree for the payment of money.
34. Decree for execution of document, or endorsement of negotiable instruments.__ (1) Where
a decree is for the execution of a document or for the endorsement of a negotiable instrument and the
judgmentdebtor
neglects or refuses to obey the decree, the decreeholder
may prepare a draft of the
document or endorsement in accordance with the terms of the decree and deliver the same to the
Court.
(2) The Court shall thereupon cause the draft to be served on the judgmentdebtor
together with a
notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where the judgmentdebtor
objects to the draft, his objections shall be stated in writing within
such time, and the Court shall make such order approving or altering the draft, as it thinks fit.
1Ins. by the Code of Civil Procedure (Amdt.) Act, 1923 (29 of 1923).
2Subs. ibid., for “shall not be executed by detention in prison”.
3The words “and the decreeholder
is the wife” omitted, by the Code of Civil Procedure (Amdt.) Act, 1923 (29 of 1923).
Code of Civil Procedure, 1908 [1908 : V]
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(4) The decreeholder
shall deliver to the Court a copy of the draft with such alterations (if any) as
the Court may have directed upon the proper stamppaper
if a stamp is required by the law for the time
being in force; and the Judge or such officer as may be appointed in this behalf shall execute the
documents so delivered.
(5) The execution of a document or the endorsement of a negotiable instrument under this rule may
be in the following form, namely:"
C.D., Judge of the Court of
(or as the case may be), for A. B., in a suit by E.F. against A.B.", and shall have the same effect as
the execution of the document or the endorsement of the negotiable instrument by the party ordered to
execute or endorse the same.
(6) The Court, or such officer as it may appoint in this behalf, shall cause the document to be
registered if its registration is required by the law for the time being in force or the decreeholder
desires to have it registered, and may make such order as it thinks fit as to the payment of the expenses
of the registration.
35. Decree for immoveable property.__(1) Where a decree is for the delivery of any immoveable
property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such
person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person
bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immoveable property, such possession shall be
delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming
by beat of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to be delivered and the person in possession,
being bound by the decree, does no afford free access, the Court, through its officers, may, after giving
reasonable warning and facility to any woman not appearing in public according to the customs of the
country to withdraw, remove or open any lock or bolt or break open any door or do any other act
necessary for putting the decreeholder
in possession.
36. Decree for delivery of immoveable property when in occupancy of tenant. Where a decree
is for the delivery of any immoveable property in the occupancy of a tenant or other person entitled to
occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order
delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and
proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the
substance of the decree in regard to the property.
Code of Civil Procedure, 1908 [1908 : V]
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Arrest and Detention in 1* * * Prison
37. Discretionary power to permit judgmentdebtor
to show cause against detention in
prison.__ (1) Notwithstanding anything in these rules, where an application is for the execution of a
decree for the payment of money by the arrest and detention in 1* * * prison of a judgmentdebtor
who
is liable to be arrested in pursuance of the application, the Court 2[shall], instead of issuing a warrant
for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the
notice and show cause why he should not be 1[detained in] prison :
3[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or
otherwise, that, with the object or effect of delaying the execution of the decree, the judgmentdebtor
is likely to abscond or leave the local limits of the jurisdiction of the Court.]
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decreeholder
so requires, issue a warrant for the arrest of the judgmentdebtor.
38. Warrant for arrest to direct judgmentdebtor
to be brought up. Every warrant for the
arrest of a judgmentdebtor
shall direct the officer entrusted with its execution to bring him before the
Court with all convenient speed, unless the amount which he has been ordered to pay, together with
the interest thereon and the cost (if any) to which he is liable, be sooner paid.
1* * * * * * *
4[40. Proceedings on appearance of judgmentdebtor
in obedience to notice or after
arrest.__ (1) When a judgmentdebtor
appears before the Court in obedience to a notice issued under
rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of
money, the Court shall proceed to hear the decreeholder
and take all such evidence as may be
produced by him in support of his application for execution, and shall then give the judgmentdebtor
an
opportunity of showing cause why he should not be 1[detained in] prison.
(2) Pending the conclusion of the inquiry under subrule
(1) the Court may, in its discretion, order
the judgmentdebtor
to be detained in the custody of an officer of the Court or release him on his
furnishing security to the satisfaction of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry under subrule
(1) the Court may, subject to the provisions
of section 51 and to the other provisions of this Code, make an order for the detention of the judgmentdebtor
in 1* * * prison and shall in that event cause him to be arrested if he is not already under arrest :
1 Omitted and Subs. by Act XIV of 1994, s.11
2Subs. by the Code of Civil Procedure (Amdt.) Act, 1936 (21 of 1936), s.3, for “may”.
3 Proviso ins. ibid.
4 Subs. by the Code of Civil Procedure (Amdt.) Act, 1936 (21 of 1936), s.4, for the original rule 40.
Code of Civil Procedure, 1908 [1908 : V]
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Provided that in order to give the judgmentdebtor
an opportunity of satisfying the decree, the
Court may, before making the order of detention, leave the judgmentdebtor
in the custody of an
officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing
security to the satisfaction of the Court for his appearance at the expiration of the specified period if
the decree be not sooner satisfied.
(4) A judgmentdebtor
released under this rule may be rearrested.
(5) When the Court does not make an order of detention under subrule
(3