Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

Modes of execution of decree-//Mode of payment of money

Modes of execution of decree-/

Mode of payment 

of money Mode of payment of money in 

execution 

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                   O 21 Rule 1 deals with the provision of modes of paying money under decree by deposit into court whose duty it is to execute the decree , or send to that court by postal money, or through a bank, or outside the court to the decree-holder by postal money order or through a bank , or by any other mode wherein the payment is evidenced in writing.
by any other mode as per direction of the court. The Court shall certify it on receiving information from the decree-holder, or on application of the judgment-creditor.

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Modes of execution of decree- 

           The Section 51 of code deals with the provisions relating of powers of the executing court. The court may on the application of decree holder, order execution of the decree , by delivery of any property specifically decreed by arrest and detention by attachment and sale or by sale by without attachment arrest and detention in prison, by appointing a receiver in such other manner as the nature of the relief In case of failure of judgment debtor to satisfied the decree ,there is provision of enforcement of decree against legal representatives. Where the decree is for the partition of immovable property,assessed revenue to the government or for separate possession a share. The decree be sent to the collector as per section 54.

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@31. By delivery of property 

                In case of movable property, the court can seize the property and hand over it to the decree-holder in possession of the suit property.
In case of immovable property, the possession shall be given to the decree-holder. In case of decree for joint possession, by affixing the copy on the conspicuous part and by proclamation as per direction of court. If th property is in possession of the tenant, the court shall order delivery of property by attachment of warrant and by proclamation by beating of drum or any other customary mode.
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2. By arrest and detention of judgment-debtor 

            The court can pass order of arrest and detention of the judgment-debtor. Such arrest and detention shall not be made unless the opportunity of showing cause is not given to the judgment-debtor. In case of money decree, the period of detention of the judgment-debtor is- for amount exceeding Rs.5000/- rupees -upto three months, for amount exceeding Rs. 2000/- and not exceeding Rs.5,000/-- up to six weeks.The judgment-debtor shall not be arrested if amount is less than Rs.2000/- and even a woman shall not be arrested under this provision. Such detention shall be in the civil prison. The judgment-debtor shall pay subsistence allowance as per class of the judgment-debtor. 

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The court may release the judgment-debtor, 

(i) on satisfaction of decree, or

 (ii) on ground of illness, or 

(iii) if the decree-holder consents for release, or

 (iv) on failure of payment of subsistence allowance by the decree-holder. Such arrest and detention shall not amount to discharge of the judgment-debtor.

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3. By attachment and sale, or sale without attachment- 

            The decree can be executed by attachment and sale of the property. The property may be movable or immovable. The section 60 provide the properties which can be attached eg, goods, land, house, bank-notes, etc. The proviso of the said section provides the property which can not be attached, e..g. the necessary wearing-apparel, books of account, tools of artisans, etc.
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                   The court may examine the judgment-debtor, or any other person for the purpose of ascertaining the property that can be attached. Even court can direct them to file affidavit. On failure of the party to give information the court may direct them to keep in civil prison. The attachment of movable property shall be made by actual seizure and the attaching officer shall keep it in his possession. In case of immovable the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way.
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                   The sale of the movable or immovable property can be made by public auction. In case of the movable property, on receipt of amount of sale of the goods, the officer shall issue receipt and hand over possession of the goods to the purchaser. In case of immovable property, the court may allow the judgment -debtor to raise money by mortgage, lease or private sale. But if he fails to do so, the court by auction sale can sale the property. The purchaser shall deposit immediately 25 percent of amount and shall pay balance amount within 14 days. On failure to do so, the property is liable to be resold. The court shall issue certificate of the same. The court shall take the amount from the sale proceeds and satisfy the decree and shall pay balance to the judgment-debtor.

4. The court may appoint the receiver of the property, such receiver shall take care of the property as per directions of the court.

5. The decree can be executed by any other mode. The court shall execute decree even as per directions given in the decree. But the court shall not go behind the decree.

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Stay of the execution proceeding

                In order to enable judgment-debtor to obtain the stay of execution by the court which passed decree or by the appellate court, the court can give opportunity to the judgment-debtor. The court shall stay the execution proceedings if the appellate court pass stay order.
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                   Execution of decree of specific performance of court, or restitution of conjugal rights or injunction As per Order 21 Rule 32 (1), whether 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 in the case of a decree for restitution of conjugal rights by the attachment of his property, or in case of a decree for specific performance of contract, or for an injunction by his detention in the civil prison, or by attachment of his property, or both.


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