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




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 fact that the legislature has carved out a C.P.C. in the form of Order XXI inside the C.P.C., 1908 (C.P.C.) illustrates the importance of this topic. Hundred and Six Rules of this Order, and equally large, hundred and five paragraphs are devoted to this topic in the Civil Manual, besides 34 Sections (i.e. Ss.36 to 74).

2] The journey of the plaintiff starts from the date of filing suit and ends to reap the fruits of decree i.e. Execution of decree. The term “execution” has not been defined in the C.P.C.. The expression “execution” simply means the process for enforcing or implementing or giving effect to the decree of the Court.

3] “Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or 2
(b) any order of dismissal for default.

Application to orders. - (Section 36)
The provisions of this C.P.C. relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).

4] Sections 51 to 54 describe procedure in execution or mode for execution. Modes of executing decree under Section 51:
a) Money decree;

 b) Partition decree;

 c) Decree of Specific Performance; and

 d) Restitution of Conjugal Rights.
Section 51 of the C.P.C. enumerates different modes of execution in general terms which the executing Court enforces on the application of the Decree Holder. The conditions and limitations under which alone the respective modes can be availed are prescribed further under Order XXI.
5] A Decree Holder has the option to choose a particular mode for executing and enforcing a Decree passed by a competent Court in his favour. This power of the Decree Holder apart from the conditions and limitations prescribed by the C.P.C., is also subject to the discretion of the Court.

6] A decree for payment of money, including a decree where payment of money is an alternative to some other relief, can be executed by the detention of the Judgment Debtor in the civil prison or by attachment and sale of his property.
Rule 11 (1) of Order XXI of the C.P.C. permits oral application for execution of Money Decree by arrest of Judgment Debtor, who is present within the precincts of the Court at the time of passing the decree. However, it is not advisable to order arrest of the Judgment Debtor on such an oral prayer.

 Rule 11- 3 A requires an application for the arrest and detention of Judgment Debtor in Civil Prison along with the grounds on which arrest is sought.


7] As per the amended Rule 37, the Court is obliged to issue a show cause notice to a Judgment Debtor whose arrest is sought, before ordering his arrest. The Court cannot place any limitation on modes of execution chosen by the Decree Holder. He may seek simultaneous execution against person and property of Judgment Debtor. However, Rule 21 gives discretion to the Court to refuse simultaneous execution.
8] As per Section 82 of the C.P.C., an execution against Public Officer or Government cannot be issued unless the decree remains unsatisfied for three months. Mere existence of an unsatisfied money decree is not sufficient for ordering detention of a Judgment Debtor in Civil Prison. The Court must record a
reasoned order indicating that the conditions prescribed in the proviso of Section 51 exists.

9] The provision regarding execution of partition decree is provided in Section 54 of the C.P.C. Section 54 refers to the partition of estate assessed to payment of revenue. If a decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, Section 54 requires that, the said partition should be carried out by the Collector. In a partition suit pertaining to agricultural lands in the State of Maharashtra, the decree is to be executed by the Collector or his subordinate officer according to the provisions of Section 85 of the Maharashtra Land Revenue, C.P.C., 1965 and Rules 5, 6 and 7 of the Maharashtra Land Revenue (Partition of Holdings) Rules, 1967. The Civil Court after passing the decree becomes functus officio so far putting the Decree Holder in actual physical possession of the property.
10] The provisions of Order XXI Rule 35 of the C.P.C. do not apply in 4 case of possession of agricultural land. In case of Aannasaheb Rajaram Nagne Vs. Rajaram Maruti Nagne ( 2000 (3) Mh.L.J.53 ) , the Hon'ble

Bombay High Court observed thus :
“It was not necessary for the Decree Holder to move or make any application to the Court to send the decree to the Collector. An application even if made in the form of Darkhast application with a prayer to send the decree and papers to the Collector was not an application in execution.”


11] Other immovable property or movable property which cannot be partitioned without further inquiry, the Court shall pass a preliminary decree declaring share of parties interested in the property and giving such further directions as may be required. After passing of the preliminary decree, the suit continues before the Civil Court until passing of the final decree. Until a final decree determining rights of the parties by metes and bounds is drawn up and it is engrossed on stamp papers supplied by the parties, there would be no executable decree. For example, the preliminary decree declaring shares of the parties in a house property cannot be executed unless the rights of the parties are determined by metes and bounds by appointing a Commission and passing of the final decree after hearing the parties as to the divisions proposed by the Commission.
12] The practice of filing execution petition under Order XXI, Rule 11 of the C.P.C. immediately after passing of the preliminary decree and in that proceeding issuing Commission for determining rights of the parties by metes and bounds is not at all in consonance with the provisions of law, unless final decree is passed. No execution petition under Order XXI, Rule 11 of the C.P.C. can be entertained in respect of such a decree. [Shankar Lokhande Vs. Chandrakant Lokhande, (1995) 3 SCC 413)].

13] Order XXI, Rule 32 of the C.P.C. provides for execution of decree for specific performance, restitution of conjugal rights and injunction. Under Rule 32, if a decree is passed against a person for specific performance of a contract or is in the nature of an injunction, and the person willfully fails to obey it, although he has had an opportunity of obeying it, the decree can be enforced by his detention in civil prison, or by the attachment of his property, or both. In addition, the Court may also order that the act which is to be done may be done, so far as it practicable, by the Decree Holder or some other person appointed by the Court, at the cost of the Judgment Debtor.

14] If decree for restitution of conjugal rights has been passed, and the party against whom it is passed wilfully fails to obey it, although he has had an opportunity of obeying it, the decree may be enforced by the attachment of his property. (R.32).
If the decree for restitution of conjugal right is against the husband, the Court may also order that if the husband does not comply with the decree within such time as may be prescribed, he shall make periodical payments to the wife of such amount as may be fixed by the Court. The amount of payment and the intervals fixed for payment thereof may also be varied or modified by subsequent orders of the Court. Such amount can be recovered by the wife as if they were payable under the decree passed for the payment of money. (R.33).

15] Where a decree is for the execution of a document or for the
endorsement for a negotiable instrument and the Judgment Debtor neglects or refuses to obey the decree, the Decree Holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
16] The Court shall thereupon cause the draft to be served on the Judgment Debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf. Where the Judgment Debtor object to the draft, his objections shall be stated in writing within such time, and the Court shall make such an order approving or altering the draft, as it thinks fit. The Decree Holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper, 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 document so delivered. Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the Court as may be authorised in this behalf by the Court, shall cause the document to be registered in accordance with such law.


17] Various modes of execution of decree are:
(a) By delivery of any property specifically decreed;

 (b) by attachment and sale of the property or by sale without attachment of the property;(c) by arrest and detention; (d) by appointing a receiver and (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).

18] One of the modes of executing a decree is arrest and detention of the Judgment Debtor in civil prison. Where the decree is for payment of money, it can be executed by arrest and detention of the Judgment Debtor.

 The following points are very important regarding arrest and detention :-
a) A Judgment Debtor may be arrested at any time on any day in execution of a decree. After his arrest, he must be brought before the Court as soon as practicable.
b) For the purpose of making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling house is in the occupancy of the Judgment Debtor and he refuses or prevent access thereto.
c) No order of detention of the Judgment Debtor shall be made where the decreetal amount does not exceed Rs.2000/-.
d) Where the Judgment Debtor pays the decreetal amount and costs of arrest to the officer, he should be released once.
e) A decree for money cannot be executed by arrest and detention where the Judgment Debtor is a woman, or a minor, or a legal representative of a deceased Judgment Debtor.

19] The C.P.C. lays down various modes of executing a decree. One of such modes is arrest and detention of the Judgment Debtor in a civil prison. The Decree Holder has an option to choose a mode for executing his decree and normally, a Court of law in the absence of any special circumstances, cannot compel him to invoke a particular mode of execution. Sections 51 to 59 and Rules 30 to 41 of Order XXI of the C.P.C. deal with arrest and detention of the Judgment Debtor in civil prison.

When arrest and detention may be ordered-
20] Where the decree is for the payment of money, it can be executed by arrest and detention of the Judgment Debtor. Likewise, in case of a decree for specific performance of contract or for injunction, a Judgment Debtor can be arrested and detained. Again, where a decree is against a corporation, it can be executed with the leave of the Court by detention in civil prison of it's directors or other officers.

Who cannot be arrested-
21] As per the Civil Procedure C.P.C., the following classes of person cannot be arrested or detained in a civil prison:
1] Judicial Officers, while going to, presiding in or returning from Courts; -
(Section 135 (1) of the C.P.C.)
2] A woman cannot be arrested in execution of money decree; - ( S ection 56 of the C.P.C. )
3] The parties, their pleaders, mukhtars, revenue agents and recognized agents and their witnesses acting in disobedience to a summons, while going to, or attending or returning from the Court; - (Section 135 (2) of the C.P.C. )
4] Members of legislative bodies during Sessions, etc.: - (Section 135 A of the C.P.C.)
5] Any person or class of persons, whose arrest, according to the State Government, might be attended with danger or inconvenience to the public; - (Section 55 (2) of the C.P.C. )
6] A Judgment Debtor, where the decretal amount does not exceed rupees two thousand. (Section 58 (1A) of the C.P.C. )

22] The provisions relating to arrest and detention of the Judgment Debtor protect and safeguard the interest of the Decree Holder if the Judgment Debtor has means to pay and still he refuses or neglects to honour his obligations, he can be sent to civil prison. Mere omission to pay, however, cannot result in arrest or detention of the Judgment Debtor before ordering detention, the court must be satisfied that there was an element of bad faith.
23] The Court is required to record reasons for it's satisfaction for detention of the Judgment Debtor. Recording of reasons is mandatory. Omission to record reasons by the Court for it's satisfaction amounts to ignoring a material and mandatory requirement of law. Such reasons should be recorded every time and in every proceeding in which the judgment-debtor is ordered to be detained.

24] The C.P.C. enumerates properties which are liable to be attached and  sold in execution of a decree. Likewise, it also specifies properties which are not liable to be attached or sold. It also the prescribes the procedure where the same property is attached in execution of decrees by more than one Court. The C.P.C. also declares that a private alienation of property after attachment is void. An executing court is competent to attach the property if it is situated within the local limits of the jurisdiction of the Court. The place of business of the Judgment
Debtor is not material.
25] The primary object of attachment of property is to give notice to the Judgment Debtor not to alienate the property to anyone as also to the general public not to purchase or in any other manner deal with the property of the Judgment Debtor attached in execution proceedings. Section 60(1) declares what
properties are liable to attachment and sale in execution of a decree, and what properties are exempt therefrom.

Properties exempted from attachment and sale:
The proviso to sub-section (1) of Section 60 declares that the properties specified therein are exempted from attachment and sale in the execution of a decree, those are given in short as under:
(a) necessary wearing-apparel, cooking vessels, beds and bedding of Judgment Debtor, his wife and children, personal ornaments, in accordance with religious usage;

 (b) tools of artisans, implements of agriculturist;

 (c) houses and buildings occupied by agriculturist, labourer or a domestic servant;

 (d) books of account;
(e) any right of personal service;

 (f) stipends and gratuities;

 (g) wages of labourers and domestic servants;

 (h) salary to the extent of first one thousand rupees and two-thirds of the remainder;

 (i) pay and allowances of Army personnels;

 (j) Provident Fund;

 (k) Public Provident Fund;

 (l) money payable under insurance policy;

 (m) interest of lessee of a residential building;

 (n) any allowance of public servant exempted by notification; (o) expectancy of succession by survivorship or contingent or possible right or interest; and

 (p) right to future maintenance.

(Section 62, Rules 43 to 54 of Order XXI of the C.P.C. ) 26] Rules 43 to 54 of Order 21 lay down the procedure for attachment of different types of movable and immovable properties and its mode which can be better explained in Tabular form.

Sr. No. Type of Property Mode of Attachment
1) Movable property (other than agricultural produce) in possession of Judgment Debtor;
By actual seizure thereof. But, if such property is subject to speedy and natural decay, or the expense of keeping it is likely to exceed its value, it may be sold immediately.
2) Movable property consisting of livestock, agricultural implements or other articles which cannot conveniently be attached;
By leaving the same in the custody of a respectable person as the 'custodian'.
3)Movable property not in possession of the Judgment Debtor;
By an order prohibiting the person in possession thereof from giving it to the Judgment Debtor.
4)Negotiable instrument neither deposited in a Court nor in the
custody of a public officer;
By actual seizure and bringing it into Court.

5)Debt not secured by a negotiable instrument;
By an order prohibiting the creditor from recovering the debt and the debtor from paying the debt.
6)Share in the capital of a corporation; By an order prohibiting the person in whose name the share stands from transferring it or receiving  dividend thereon.
7)Share or interest in movable property belonging to the Judgment Debtor and another as co-owners;
By a notice to the Judgment Debtor prohibiting him from transferring or charging it.

8)Salary or allowance of a public servant or a private employee; By an order that the amount shall (subject to the provisions of Section 60), be withheld from such salary or allowances either in one payment or by monthly installments.
9)Partnership property ; -By making an order - (a) charging the interest of the partner in the partnership property;
(b) appointing a receiver of the share of the partner in profits;
(c) directing accounts and inquiries; and
(d) ordering sale of such interests.

10)Property in custody of Court or public officer;
By notice to such Court or officer, requesting that such property, and any interest or dividend thereon, may be held subject to the order of the Court.
11)(i) Decree for payment of money or sale in enforcement of a mortgage or charge -
(a) passed by the Court executing the decree ;
By an order of such Court.
(b) passed by another Court; By issuing a notice to such Court
requesting it to stay execution thereof.
(ii) Decree other than that mentioned above;
By issuing a notice (a) to the decree holder prohibiting him from transferring or charging it in any way; 

(b) to the executing Court from executing it until such notice is cancelled.

12)Agricultural produce; 

By (i) affixing a copy of the warrant
(a) in case of growing crop, on land on which such crop has grown; and
(b) in case of ready crop, the place at which it is lying; and
(ii) also by affixing a copy on the house in which the Judgment Debtor ordinarily resides, carries on business or personally works for gain, or last resided, carried on business or personally worked for gain. Where application is for the attachment of growing crop, it shall specify the time at which it is likely to be harvested. (The object is to enable the Court to make necessary arrangements for the custody of the crop.
13)Immovable property By an order prohibiting the judgment debtor from transferring or charging it in any manner an all
persons from taking any benefit from such transfer or charge.

27] No dwelling house may be entered after sunset and before sunrise.
No other door of it may be broken open, unless it is in the occupancy of the Judgment Debtor and he refuses or prevents access thereto. Where a dwelling house is in actual occupation of a pardanashin woman, reasonable time and facility must be given to her to withdraw. Section 63 prescribes procedure to be
followed in case the property is attached in execution of decrees by several Courts.

28] Rules 58 and 59 deals with adjudication of claims preferred to property attached in execution of decree and all objections to attachment of property. The object of the Rule is to put an end to protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in the execution. These objections and claims are usually raised by two categories of persons:-
(1) by the parties to litigation or their representatives;
(2) by the third party.


29] As per para 345 of Civil Manual, the concerned Court is required to frame issue casting burden of proof on a particular party. Objections or claims filed against execution must not be disposed off without granting an opportunity to lead evidence. As per Sub-Rule (1) and (2) of Rule 58, while entertaining a claim or objection the Court must investigate fully and adjudicate upon all questions including questions of right, title and interest in the attached property arising between the parties.
: @31

(Section s 46 and 54 of C.P.C.)
30] Precept means 'a command' or an order. A precept is an order or direction given by the 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 the court which passed a decree may, upon an application by the decree holder, issue a precept to that court within whose jurisdiction the property of the judgment debtor is lying to attach the property specified in the precept.

(Rules 46-A to 46-I of Order XXI of the C.P.C.)
31] Garnishee means Judgment Debtor's debtor. Rule 46A to 46I of 14 Order XXI of the C.P.C., lay down the procedure in garnishee cases. The Court may, in the case of a debt (other than a debt secured by a mortgage or charge) which has been attached under Rule 46, upon the application of the attaching creditor, issue a notice to the garnishee liable to pay such debt, calling upon him either to pay into Court the debt due from him to the Judgment Debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or
to appear and show cause why he should not do so.
32] The payment made by the garnishee into the Court pursuant to such notice shall be treated as a valid discharge to him as against the Judgment Debtor. Where neither the garnishee makes the payment into the Court, as ordered, nor appears and shows any cause in answer to the notice, the Court may order the garnishee to comply with such notice as if such order were a decree against him.

33] Sale of Property is one aspect of execution of fulfillment of decree. Sale of property with or without attachment is one of the modes of execution of decree. The relevant legal provisions are found in Sections 65 to 67 and Rules 64 to 95 of Order XXI of the C.P.C. Every sale shall be conducted by officer of the Court or by other person as the Court may appoint in his behalf and shall be made by public auction in the manner prescribed.
34] In all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the Decree Holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law then only such portion of the property should be sold. This is not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction. [ Ambati Narsayya V s. M. Subba Rao, ( AIR 1990 SC 119 at 120) ] .

35] Responsibility of Court:
a) To prevent sale of property in which Judgment Debtor does not appear to have interest;
b) To see that property to be sold is proportionate with amount of debt;
c) To see that reasonable price is realised; and
d) To secure that intending purchaser shall get opportunity to know all material particulars.

Sale of movable property:
36] Place of sale should be within jurisdiction of the Court and in case of agricultural produce, it shall be held near the field where crop is lying or at nearest place of public resort where it may fetch a better price. The price of the property shall be paid at the time of sale. On payment of price the sale becomes absolute. Any person sustaining any injury by reason of any irregularity in the sale at the hand of any other person may sue him for compensation, or, if such person is the purchaser, for recovery of the specific property and for compensation in default of such recovery.

Sale of immovable property:
37] Any Court other than a Court of Small Causes may order sale of immovable property in execution of a decree. The Court may postpone sale for reasonable period to enable the Judgment Debtor to raise the decretal amount by private alienation.

Setting aside sale:
38] 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 can apply within period of 60 days from the sale to set aside sale upon conditions that (i) the applicant must deposit in the Court for payment to the auction purchaser five per cent of the purchase money; and (ii) he must also deposit the amount specified in the proclamation of sale, less any amount received by the Decree Holder since the date of proclamation of sale for payment to the Decree Holder. The executing Court has no jurisdiction to entertain an application for setting aside a sale after the prescribed period by invoking Section 148 of the C.P.C. or by applying Section 5 of the Limitation Act. [ Mohanlal Vs. Hariprasad ( 1994 (4) SCC 177 @38

 Certificate of Sale:
39] After the sale has become absolute, the Court shall grant a certificate in favour of the purchaser. It shall bear the date on which the sale became absolute and also specify the property sold and the name of the purchaser. Such certificate is conclusive in nature. Where purchaser is dead, the certificate may be granted to his legal representative. Assignee of an auction purchaser is also entitled to the certificate. The auction purchaser can apply for possession even without sale certificate as he gets title by reason of his purchase and the sale certificate is only evidence thereof. [ Babulal Vs. Annapurnabai ( AIR 1953 Nagpur 215 ) ] .

Effect of reversal of decree upon sale:
40] Where the purchaser is a stranger, the Judgment Debtor whose property is sold is entitled only to the sale proceeds of the property if the decree is subsequently reversed. But, where the purchaser is the Decree Holder, he is bound to restore the property to the Judgment Debtor.

41] Articles 134 to 136 of the Limitation Act are in respect of limitation.
Delivery of possession by a purchaser of immovable property at a sale in execution of a decree has to be asked for within one year when the sale becomes absolute. Decree of mandatory injunction can be enforced within 3 years. Any other decree can be executed within 12 years.

Object and scope:

42] The object of Section 47 is to determine all questions between parties to the suit or their representatives, relating to execution, discharge or satisfaction of the decree in the same proceedings without filing a separate suit. It does not apply where the contest is between the parties to the suit and a stranger.

43] “Execution” of a decree is a process by which decree of a Court is enforced by taking legal steps. “Discharge” of a decree is another process by which the liability under decree is fulfilled or put to an end by positive acts of the Judgment Debtor. Lastly “satisfaction” of the decree means “compliance” with the terms of the decree by the Judgment Debtor or complying with the order of the Court so as to give full and final relief to the Decree Holder.

 [ Vasudev Dhanajibhai Modi Vs. Rajabhai Abdul Reheman and O thers , ( MANU/SC/0531/1970) ] .

44] The executing Court cannot question the validity of a decree or entertain an objection as to the legality or otherwise of the decree. It has to take the decree as it stands and execute it according to its terms. The executing Court must abide by the directions contained in the decree. Court cannot go behind the
45] It not only determines the questions of execution, but also decides whether any person is or not the representative of the party. Similarly, the disputed parties as well as a purchaser of the property of sale in execution of decree shall be deemed to be the party of the suit. Not only the questions of execution, discharge, or satisfaction but the questions relating to the delivery of possession of such property to the purchaser or his representative shall be deemed to be the questions relating to execution, discharge, or satisfaction of the decree within the meaning of Section 47 of the C.P.C.
46] The power of the executing Court will determine the questions between the parties is limited and narrow. Right to raise objection does not mean that, objector can re-open the matter. That is not intended by the legislature. Jurisdiction being extremely limited and narrow, the objection must fall within the ambit and the scope of the same. Thus, jurisdiction cannot be equated with that of a appeal or review. Executing Court has to go by the decree.

 [ Savitribai Vs. Suman ( 2009 (5) Mh.L.J. 387) ] .

47] If at a Court auction, property is purchased by a bona fide purchaser who was stranger to the decree, and the decree is set aside or reversed, restitution cannot be claimed by Judgment Debtor. However, by the Section 47, auction purchaser irrespective of the fact whether they were parties to the suit from before or not shall be deemed to be such parties for the purpose of this Section. After an auction sale of immovable property in execution of a decree, auction purchaser can move the executing Court for delivery of vacant possession. It is not necessary to file a separate suit for this purpose. Having regard to this, all questions arising between the auction-purchaser and the Judgment Debtor must be determined by the executing Court and not by a separate suit.
48] A question between the parties as to who are legal representatives of  a deceased Judgment Debtor falls within the purview of Section 47 of the C.P.C. Where in execution of a decree passed against a legal representative to be recovered from the estate of the deceased, certain personal property of the legal representative is attached, the objection of the legal representative being a party to the suit shall be determined by the court executing the decree under Section 47 and not by a separate suit.

49] A decree for possession of the disputed land was passed, but the Judgment Debtor was allowed to remove the materials of the construction which had been built by him in the disputed land. That right of the Judgment Debtor to remove materials from the disputed land is a matter relating to the execution, discharge or satisfaction of the decree. When the Decree Holder obtained possession in excess of that to which he was entitled under the decree, then the Judgment Debtor who is the owner of excess property, is to apply in execution proceedings and not to file a separate suit for recovery of possession of that property.
50] The legality of execution proceedings or jurisdiction of the execution Court to order sale is a matter falling under Section 47. But an objection by the Judgment Debtor that the decree is invalid as being collusive or that the decree was obtained by fraud can be tried only in regular suit and not in execution.
These questions relate to the validity of the decree and not to execution, discharge or satisfaction of the decree.
51] Where a decree is for possession, it is for the executing Court to go into the question if the dispute relates as to which land constituted the subject matter. When the property was not definitely identified due to the defect in Court record caused by over-looking provisions of Order VII Rule 3 and Order XX Rule 3 of the C.P.C. This defect is capable of being cured under Section 47 of the C.P.C. Successful plaintiff should not be deprived of the fruits of decree when resort can be added to Section 152 or Section 47 of the C.P.C. depending on facts and
circumstances of each particular case.

 [ Pratibha Vs. Shanti ( AIR 2003 SC 20 643) ] .

52] Where in execution of money decree a Judgment Debtor pleads payment or adjustment the question falls within Section 47 of the C.P.C. and can be dealt with any execution proceedings, but an uncertified payment or adjustment cannot be entertained under Section 47 of the C.P.C. by the Court executing the decree. The executing Court has no jurisdiction to enquire into a payment or adjustment before the decree at variance with the later.
53] It is open to the parties to enter into a compromise with reference to their rights and obligations under a decree. There is nothing in the C.P.C. which prevents the parties from entering to the compromise. If the compromise amounts to an adjustment of the decree, it must be recorded under Order XXI
Rule 2 and if not so recorded, it cannot be recognized by any Court executing the decree. Exclusive power to determine such question is given to the executing Court by Section 47 of the C.P.C. [Moti Lal Banker Vs. Maharaj Kumar Mahmood Husan Khan ( AIR 1968 SC 1087) ] .

54] Where the plaintiffs were granted a decree for possession by partition which they did not execute and allowed it to get time-barred and not even otherwise obtain possession over the property, they cannot maintain a fresh suit for possession on the basis of the earlier decree, and such a suit is barred by Section 47 of the C.P.C. -


EXCEPTION Nullity of Decree :
55] Where the decree is a nullity. The objection of the Judgment Debtor that the decree is a nullity because it was passed against a dead person, without bringing his legal representatives on the record, is an objection which can be entertained by the executing Court, for in such a case if the objection is proved, there is no executable decree at all. Court can interfere only if the decree is null and void without jurisdiction.

 [Dashrath Singh Vs. State of Punjab ( 2007 (4) Mh.L.J. 361 (SC) ] .

Ambiguous Decree :
56] Where the decree is ambiguous. A decree instead of meaning one thing may mean two or more different things. In such a case it is the duty of the executing court to go behind the decree and seek to ascertain from the judgment and pleadings the true implication of the decree.
De cree made without jurisdiction :
57] Where the decree has been made by a Court without jurisdiction, i.e., in respect of territorial or pecuniary jurisdiction or in respect of the Judgment Debtor’s person. An objection based on the ground of jurisdiction can be entertained by the executing Court for, if the decree has been passed without jurisdiction by a court, there is no executable decree.


58] All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the
application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such question.


59] If a Decree Holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI, Rule 35, then the Decree Holder has to move an application under Order XXI, Rule 97 for removal of such obstruction.
60] After hearing the Decree Holder and the obstructionist, the Court can pass appropriate order after adjudicating upon the controversy between the parties as per Rule 97 Sub-Rule (2) of Order XXI of the C.P.C. It is obvious that after such adjudication if it is found that the resistance or obstruction was
occasioned without just cause by the Judgment Debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI, Rule 97 Sub-Rule (2) and the Decree Holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XXI, Rule 103 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate Appellate Court against such deemed decree.
61] If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI, Rule 99 of the C.P.C. claiming that his dispossession was illegal and that possession deserves to be restored to him.

62] In the case of Bramhadeo Chaudhary Vs. Rishikesh Prasad
Jaiswal (AIR 1997(S.C.) 856), the Hon'ble Apex Court has observed that:

“If a Decree Holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the manner by obtaining
warrant for possession under Order XXI Rule 35 of the C.P.C., then the Decree Holder has to move an application under Order XXI Rule 97 of the C.P.C. Court can pass  appropriate order after adjudicating upon the controversy between the parties.”
63] In Bhanwarlal Vs. Satyanarayan [ (1995) 1 SCC 6 ] , the Hon'ble Supreme Court observed that if the application dismissed under Order 35 Rule (1), or made under the wrong Rule, that Order cannot operate as resjudicata in an application made under proper Rule i.e. Under O. 21 Rule 97 (1) of the C.P.C.

64] If the resistance is from Judgment Debtor or any person claiming through him, then the scope of inquiry will be of summary nature and if the resistance is from a third person claiming independent right, title or interest in the immovable property then the scope of inquiry will be wider. I t is desirable for the executing C ourt to hear the objection of third party as a suit. The executing C ourt can even frame the issues and call upon the parties to lead the evidence.

65] Once resistance is offered by a stranger to the decree and which is noted by the executing Court as well as by the Decree Holder, the remedy available to the Decree Holder against such an obstructionist is only under 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. Where an independent right is set up by a third party who is alleged to have resisted the execution of the decree, the Court can not straightway order execution with police and without recording reasons merely on the process server's report of resistance. In the case of Bhanwar Lal Vs. Satyanarain (AIR 1995 SC 398) , the Hon'ble Supreme Court held that:
“Where a person in possession and bound by the decree, does not afford free access, the officers of the court may after giving reasonable warning and facility to a pardanashin lady to withdraw, break open the building put the decree holder in possession thereof.”
66] In view of above discussion regarding obstruction proceeding, nature and scope of inquiry under Section 74 read with Order XXI Rules 97 to 106 of the C.P.C., it can be summarized that Order XXI of the C.P.C. is an independent C.P.C. in itself and it not only provides procedure to be followed by the Decree Holder to get the fruits of the decree, at the same time it provides an opportunity to the Judgment Debtor or the third party/objection petitioner to raise the grievances or objection in the execution proceeding itself.

67] Recourse to independent proceedings by filling a separate suit is clearly prohibited. Therefore, objections if any, are raised by the Judgment Debtor or the third partly in execution proceedings, the same are required to be adjudicated by executing Court following the same procedure as if it was a suit and the orders by the executing Court having the force of a decree.
68] It was held in Mumtaz Jehan Vs . Insha Allah
( MANU/DE/0435/1982: AIR 1983 Del 65 )
that under Rule 35(1) actual possession is delivered to the Decree Holder by removing all persons bound by the decree and under Rule 36 symbolical possession is delivered if the property is in occupation of tenants entitled to occupy and not bound by the decree to  deliver possession.

69] It was held in Ratan Lal Jain Vs. Uma Shankar Vyas;
Shamsuddin Vs . Abbas ( MANU/SC/0058/2002: AIR 2002 SC
804 ) that the former is known as actual or physical delivery of possession while the latter is known as delivery of formal or symbolic possession. In the latter case, the person in actual occupation is not physically dispossessed from his possession of
the decreetal property. Still delivery of possession in the manner contemplated by Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by the decree, it amounts to actual delivery of possession.

70] As per Section 47 of the C.P.C., all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
71] Whereas, Rule 97 of Order XXI of the C.P.C. speaks that “where 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 in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
Any other person bound by the decree which will include the claim of
a person who claims to be in possession in his own right and independently of the
Judgment Debtor. Rule 97 also envisages that any person even including the
Judgment Debtor irrespective of whether he claims derivative title from
Judgment Debtor or set up his own right title or interest dehors the Judgment
Debtor and he resists execution of decree.
72] Moreover, Rule 99 provides that where any person other than the
Judgment Debtor is dispossessed of immovable property by the holder of a
decree for possession of such property or, where such property has been sold in
execution of a decree, by the purchaser thereof, he may make an application to
the Court complaining of such dispossession.

73] Upon the determination of the question referred to in Rule 101, the
Court shall, in accordance with such determination and subject to the provision
of sub-Rule (2)-
(a) make an order allowing the application and directing that the applicant be
but into the possession of the property or dismissing the application or
(b) Pass such other order as, in the circumstance of the case, it may deem fit.
74] Where, upon such determination, the Court is satisfied that the
resistance or obstruction was occasioned without any just cause by the Judgment
Debtor or by some other person at his instigation or on his behalf or by any
transferee, where such transfer was made during the pendency of the suit or
execution proceeding it shall direct that the applicant be put into possession of
the property, and where the applicant is still resisted or obstructed in obtaining
possession, the Court may also, at the instance of the applicant, order the
Judgment Debtor or any person acting at his instigation or on his behalf, to be
detained in civil prison for a term which may extent to 30 days.

75] Rule 105 and Rule 106: provides for the hearing of the application
and consequences of non-appearance of the parties at hearing and Rule 106
provides for setting aside the ex-parte orders subject to filing an application
within the thirty days from the date of the order, or in case of ex-parte order
where the notice was not duly served, within thirty days from the date when the
applicant had knowledge of it.
76] As per Order XXI Rule 102 provisions of Rules 98 and 100 of the
C.P.C shall not apply to resistance or obstruction in execution of decree for the
possession of immovable property by a person to whom the Judgment Debtor
had transferred the property after the institution of the suit; in which the decree
was passed. A transferee from Judgment Debtor is presumed to be aware of the
proceeding before the Court of Law. He should be careful before he purchases the
property which is the subject matter of litigation. This Rule takes into account the
ground reality and refused to extend helping hand to transferee pendent-lite.
Rule 102, therefore, clarifies that there should not be resistance or obstruction by
the transferee pendent-lite. It declares that if the resistance is caused by a
transferee pendent-lite of the Judgment Debtor, he can not seek benefit of Rule
98 or 100 of Order XXI of the C.P.C.
In short, inquiry in respect of defence set up on the ground of bona
fide purchasers for value, is not the matter of such inquiry, through the Court
when obstructionist is the purchasers pendent-lite. [Usha Sinha Vs. Dinaram
in (AIR 2008 SC 1997)].


77] Article 167 of the Limitation Act imposes limitation on the Decree
Holder to make a first move under Rule 97 within 30 days from the date of
resistance. Each obstruction in execution of warrant for delivery of possession
provides fresh cause of action, therefore, fresh application is maintainable. Under
Rule 103 orders passed on an application adjudicated upon under Rules 98 or
100 are deemed to be a decree.

In view of above discussion, it can be concluded that Order XXI of
the C.P.C. is an independent C.P.C. in itself and it not only provides procedure to
be followed by the Decree Holder to get the fruits of the decree, but also provides
an opportunity to the Judgment Debtor or the third party to raise the grievances
or objection in the execution proceeding itself. Recourse to independent
proceedings by filing a separate suit is clearly prohibited.
Execution is the medium by which a Decree Holder compels the
Judgment Debtor to carry out the mandate of the decree or order as the case may
be. It enables the Decree Holder to recover the fruits of the decree.
Decree obtains finality after years together litigation. The rights
which accrued to the Decree Holder remains in abeyance during the said period.
Many times, original plaintiff dies during litigation and his legal representatives
represent him for execution of decree. Sometimes, Decree Holder spends
considerable amount of money even more than the decretal amount.
Considerable part of his life is spent in litigating the dispute. Trial Court as well
as Appellate Courts spend their valuable time for giving finality to the decree. In
this background, heavy duty lies upon the Judges to execute decree as early as


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