Sale as a mode of execution
The word “Execution” isn’t defined in the Code of Civil Procedure, 1908 (hereinafter referred to as CPC. Execution can be comprehended as “a legal act by which a public officer is enabled to hold decisions or requests into impact.” In other words, it means the carrying into effect the judgment or order delivered during a court of law.
Hon’ble Apex Court in Ghanshyam Das v. Anant Kumar Sinha (AIR 1991 SC 2251) handling provision of the code concerning the execution of decree and orders, observed in following words –
“So far because the question of executability of a decree cares, the Civil Procedure Code contains elaborate and exhaustive provisions for handling it altogether aspects. The different guidelines of Order 21 of the code post of different circumstances giving successful remedies not exclusively to judgment- debtors and decree-holders but also to claimant objectors, in light of the fact that the case could likewise be.”
It is only the execution, which reveals and signifies the importance of the decrees to be passed and therefore the pedestal of the Court and sanctity of the document.
Order 21 of the Code of Civil Procedure deals with the solemn act of execution of the decrees gone by the Courts from grassroots to the highest. At last, after the judgment achieves certainty or where there’s no stay inside the execution by any Appellate Court, it’s the Court of original jurisdiction which performs the act of implementation of the execution. The provisions of the Civil Procedure Code, 1903, on the topic of sales are contained so as XXI, Rules 64 to 102. Rule 64 to 73 affect “sale generally”; Rules 74 to 81, with “sale of moveable property”; and Rules 82 to 104 with “sale of immovable”
Sale of Movable Property
Rule 74 Order XXI of Code of Civil Procedure 1908 “Sale of agricultural produce”
(1) Where the property to be sold is agricultural produce, the sale shall be held,
(a) If such products may be a growing crop, on or near the land on which such crop has grown, or
(b) If such product has been cut or gathered, at or near the area or place for treading out grain or the likes of or fodder-stack on or during which it is deposited provided that the Court may direct the sale to be held at the closest place of public resort, if it’s of opinion that the product is thereby likely to sell to greater advantage.
(2) Where on the produce being put up or sale,-
(a) A good price, within the estimation of the person holding the sale, isn’t offered for it, and
(b) The owner of the produce or an individual authorized to act in his behalf applies to possess the sale postponed till next day or, if a market is held at the place of sale, the next market-day, the sale shall be postponed accordingly and shall be then completed, whatever price could also be offered for the produce.
Rule 75 Order XXI of Code of Civil Procedure 1908 “Special provisions concerning growing crops”
(1) Where the property to be sold may be a growing crop and therefore the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed on admit of its being did for storing before the arrival of such day, and therefore the sale shall not be held until the crop has been cut or gathered and is prepared for storing.
(2) Where the crop from its nature doesn’t admit of being stored, it’s going to be sold before its cut and gathered and therefore the purchaser shall be entitled to enter on the land and to try to do all that’s necessary for the aim of tending and cutting or gathering it.
Rule 76 Order XXI of Code of Civil Procedure 1908 “Negotiable instruments and shares in a corporate
Where the property to be sold may be a legal document or a share during a corporation, the Court may, rather than directing the sale to be made by public auction, authorize the sale of such an instrument or share through a broker.
Rule 77 Order XXI of Code of Civil Procedure 1908 “Sale by public auction”
(1) Where movable property is sold by public auction the worth of every lot shall be paid at the time of sale or as soon after because the officer or other individual holding the sale directs, and in default of instalment of payment the property shall forthwith be re-sold.
(2) On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for an equivalent, and therefore the sale shall become absolute.
(3) Where the movable property to be sold may be a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid an equivalent sum for such property or any lot, the bidding shall be deemed to be the bidding of the co-owner.
Rule 78 Order XXI of Code of Civil Procedure 1908 “Irregularity to not vitiate the sale, but a person injured may sue”
No abnormality in distributing or leading the offer of sale of movable property will vitiate the deal, however an individual continuing any injury due to such anomaly on account of any other person may institute a suit against him for compensation or (if such other person is that the purchaser) for the recovery of the precise property and compensation in default of such recovery.
Rule 80 Order XXI of Code of Civil Procedure 1908 “Delivery of movable property, debts, and shares”
(1) Where the property sold is movable property of which real seizure has been made, it will be conveyed to the buyer
(2) Where the property sold is movable property within the possession of some person aside from the judgment-debtor the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to a person except the purchaser.
(3) Where the property sold may be debt not by a legal document, or maybe a share during a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor from receiving the debt or any interest thereon, and therefore the debtor from making payment thereof to a person except the purchaser, or prohibiting the person in whose name the share could also be standing from making any transfer of the share to a person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secrets or other proper officers of the corporation from allowing any such exchange or making any such instalment to any individual aside from the buyer.
Rule 80 Order XXI of Code of Civil Procedure 1908 “Transfer of negotiable instruments and shares”
(1) Where the execution of a document or the endorsement of the party in whose name a legal document or a share during a corporation is standing is required to transfer such legal document or share, the Judge or such officer as he, may appoint during this behalf may execute such document or make such endorsement as could also be necessary, and such execution or endorsement shall have an equivalent effect as execution or endorsement by the party.
(2) Such execution or endorsement could also be within the following form, namely:-
A.B. by C. D. Judge of the Court of (or because the case may be), during a suit by E. F. against A. B.
(3) Until the transfer of such legal document or share, the Court may, by order, appoint some person to receive any interest or dividend due thereon and to sign a receipt for an equivalent; and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.
Rule 81 Order XXI of Code of Civil Procedure 1908 “Vesting order just in case of other property”
In the case of any movable property not hereinbefore accommodated, the Court may make an order vesting such property within the purchaser or as he may direct; and such property shall vest accordingly.
This blog is written by Amrit Rathi, Jindal Global Law School
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