Mode of Execution and Stay of Execution

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

The Explanation provides that in calculating the means of the judgment-debtor for clause (b), there shall be left out of account any property which is by section 60 exempt from attachment in execution of the decree.

Three things follow, and each is worth a sentence in an answer.

Imprisonment requires a hearing. The judgment-debtor must be given an opportunity of showing cause first.

It requires reasons in writing. Not a bare order.

It requires dishonesty, means, or a fiduciary duty. Poverty alone is never enough. Clause (b) is the common ground in practice, and the Explanation makes clear that exempt property does not count as means, so a man cannot be imprisoned because he owns the tools of his trade.

Some particular decrees: Order XXI Rules 30 to 35

Rule 30: a decree for the payment of money may be executed by the detention in civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.

Rule 31: a decree for the specific movable property, or for a share in it, may be executed by the seizure and delivery of the property, or by the detention of the judgment-debtor, or by the attachment of his property, or by both detention and attachment.

Rule 32 deals with a decree for specific performance, for restitution of conjugal rights, or for an injunction. Where the party against whom it was passed has had an opportunity of obeying and wilfully failed to obey it, the decree may be enforced, in the case of a decree for restitution of conjugal rights by attachment of his property, and in other cases by his detention in civil prison, or by attachment of his property, or by both.

Rule 33 gives the Court a discretion in decrees for restitution of conjugal rights, including the power to order a periodical payment instead.

Rule 34 provides the machinery where the decree is for the execution of a document or the endorsement of a negotiable instrument and the judgment-debtor neglects to comply: the decree-holder may prepare a draft, the Court settles it, and the document is executed by a person nominated by the Court, whereupon it has the same effect as if executed by the judgment-debtor.

Rule 35 deals with a decree for immovable property: possession is delivered to the decree-holder, and if necessary by removing any person bound by the decree who refuses to vacate. Where the person in occupation is not bound by the decree and resists, the decree-holder's remedy is Order XXI Rule 97, which has its own chapter: see [Resistance to Delivery of Possession].

Execution against a legal representative: section 50

The judgment-debtor may die before the decree is satisfied, and MU has asked twice how far his representatives are then liable.

Section 50(1): where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

Section 50(2), and this is the answer to the question as it is usually put: where the decree is executed against such legal representative, he shall be liable ONLY TO THE EXTENT OF THE PROPERTY OF THE DECEASED WHICH HAS COME TO HIS HANDS AND HAS NOT BEEN DULY DISPOSED OF; and for the purpose of ascertaining that liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel the legal representative to produce such accounts as it thinks fit.

So the liability is representative and not personal. The representative is not made a debtor; he answers only for what of the estate reached him and remains undisposed of, and the accounts machinery exists to find out how much that is. Section 52 carries the same idea into a decree passed against a party as legal representative, and section 53 deals with ancestral property in the hands of a son or other descendant.

The definition of legal representative in section 2(11) matters here, because it includes a person who intermeddles with the estate: see [Definitions]. And for the reverse case, the death of a party while the suit is still pending, see [Death, Marriage and Insolvency of Parties].

Stay of execution: Order XXI Rules 26 to 29

Rule 26(1): the Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution for a reasonable time to enable the judgment-debtor to apply to the Court which passed the decree, or to any appellate court, for an order to stay execution or for any other order relating to the decree or execution which might have been made by that court if execution had been issued by it.

Rule 26(2): where the property has already been seized, the Court may order restitution pending the result of the application.

Rule 26(3): before making an order to stay execution, or for restitution, the Court shall require security from the judgment-debtor, or proof that he has given security to the satisfaction of the court which passed the decree, or that there is sufficient cause for not requiring security.

Rule 27: no order of restitution defeats or prejudices any rights or interests acquired in the property before the making of that order.

Rule 28: any order of the Court by which the decree was passed, or of an appellate court, in relation to the execution, shall be binding upon the Court to which the decree was sent.

Rule 29 is the one worth remembering, because it comes up constantly in practice. Where a suit is pending in any Court against the holder of a decree of that Court, or of a Court subordinate to it, 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.

That is the answer to a judgment-debtor who has a cross-claim: he does not get to ignore the decree, but the Court may hold execution while his own suit is tried, ordinarily on his giving security.

Rule 24 governs the process for execution, and provides that every such process shall bear the date on which it is issued and be signed and sealed, and shall be delivered to the proper officer to be executed.

A worked example

Chirag holds a money decree for Rs. 4,00,000 against Deepa.

What modes are open to him? Under section 51 and Order XXI Rule 30, attachment and sale of her property, or her detention in civil prison, or both.

He applies for her arrest. The proviso to section 51 bites. The Court must first give Deepa an opportunity of showing cause, and may order detention only if satisfied, for reasons recorded in writing, that she is likely to abscond or has dishonestly disposed of property to obstruct execution, or that she has or has had the means since the decree and refuses or neglects to pay, or that the sum is one she was bound in a fiduciary capacity to account for.

Deepa owns only her cooking vessels, her bedding and the tools of her trade. The Explanation to the proviso: property exempt under section 60 is left out of account in calculating her means. She cannot be imprisoned for having them.

She has a suit pending against Chirag for a larger sum. Order XXI Rule 29: the Court in which that suit is pending may stay execution of Chirag's decree until it is decided, on such terms as to security as it thinks fit.

The decree has been sent to another court and she wants to apply to the court that passed it. Rule 26: the transferee court shall, on sufficient cause, stay execution for a reasonable time to let her apply, but under Rule 26(3) it must require security, or proof of security given, or find sufficient cause for not requiring it.

Change the decree. Suppose it were a decree ordering Deepa to execute a conveyance and she refuses. Rule 34: the decree-holder prepares a draft, the Court settles it, and the document is executed by a person nominated by the Court, with the same effect as if she had executed it.

Or a decree for an injunction which she wilfully disobeys. Rule 32: enforceable by her detention in civil prison, or attachment of her property, or both.

What it does not mean

Imprisonment is not a normal mode for a money decree. The proviso to section 51 requires notice, recorded reasons, and dishonesty, means or a fiduciary obligation.

Owning exempt property is not "means". The Explanation excludes section 60 property from the calculation.

Stay is not automatic on a cross-suit. Rule 29 is a discretion, ordinarily exercised on terms as to security.

A transferee court cannot stay indefinitely. Rule 26 allows a stay for a reasonable time to enable an application to the court which passed the decree.

Release from prison does not discharge the debt. That is section 58(2), dealt with in [Arrest and Detention in Execution].

Quick revision

Section 51, five modes: (a) delivery of property specifically decreed; (b) attachment and sale, or sale without attachment; (c) arrest and detention; (d) appointing a receiver; (e) such other manner as the relief requires.

Section 50: a decree-holder may apply to execute against the legal representative of a judgment-debtor who dies before satisfaction; the representative is liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of, and the Court may compel him to produce accounts to ascertain it.

Proviso: no detention on a money decree without an opportunity to show cause and reasons recorded, and unless satisfied that (a) he is likely to abscond, or has dishonestly transferred, concealed or removed property after the institution of the suit, with the object or effect of obstructing execution; or (b) he has or has had the means since the decree and refuses or neglects to pay; or (c) the sum is one he was bound in a fiduciary capacity to account for. Explanation: property exempt under section 60 is left out of the calculation of means.

Particular decrees: money, Rule 30; specific movable property, Rule 31; specific performance, restitution of conjugal rights and injunction, Rule 32; execution of a document by a court nominee, Rule 34; immovable property, by delivery and removal, Rule 35.

Stay: Rule 26, the transferee court stays for a reasonable time on sufficient cause, and requires security under Rule 26(3); Rule 28, orders of the court which passed the decree bind the transferee court; Rule 29, execution may be stayed where the judgment-debtor has a suit pending against the decree-holder, on terms as to security.

Test yourself

1. In what modes may a decree be executed? Under section 51, by delivery of any property specifically decreed; by attachment and sale, or sale without attachment, of any property; by arrest and detention in prison for a period not exceeding that specified in section 58 where such detention is permissible; by appointing a receiver; or in such other manner as the nature of the relief granted may require.

2. When may a judgment-debtor be detained in prison under a money decree? Only after he has been given an opportunity of showing cause and where the Court, for reasons recorded in writing, is satisfied that with the object or effect of obstructing or delaying execution he is likely to abscond or has dishonestly transferred, concealed or removed property since the institution of the suit; or that he has, or has had since the date of the decree, the means to pay the decree or a substantial part of it and refuses or neglects to pay; or that the decree is for a sum he was bound in a fiduciary capacity to account for.

3. Does property exempt from attachment count as "means"? No. The Explanation to the proviso to section 51 provides that in calculating the means of the judgment-debtor, property which is exempt from attachment under section 60 is left out of account.

4. How is a decree for the execution of a document enforced if the judgment-debtor refuses? Under Order XXI Rule 34 the decree-holder prepares a draft, the Court settles it after hearing objections, and the document is executed by a person nominated by the Court, whereupon it takes effect as if it had been executed by the judgment-debtor.

5. A judgment-debtor has a suit pending against the decree-holder. Can execution be stayed? Yes. Under Order XXI Rule 29, where a suit is pending in any court by the judgment-debtor against the holder of a decree of that court or of a court subordinate to it, that court may, on such terms as to security or otherwise as it thinks fit, stay execution of the decree until the pending suit is decided.

6. On what condition will a transferee court stay execution? Under Order XXI Rule 26 it stays for a reasonable time on sufficient cause being shown, to enable the judgment-debtor to apply to the court which passed the decree or to an appellate court; and by Rule 26(3) it shall first require security from him, or proof of security already given, or be satisfied that there is sufficient cause for not requiring security.

7. A judgment-debtor dies before the decree is satisfied. Can it still be executed, and how far is his representative liable? Yes. Under section 50(1) the decree-holder may apply to the Court which passed the decree to execute it against the legal representative of the deceased. By section 50(2) that representative is liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of, and for ascertaining that liability the executing Court may, of its own motion or on the decree-holder's application, compel him to produce such accounts as it thinks fit.