Order 21 civil procedure code In Pakistan.
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| Order 21 civil procedure code |
آرڈر XXI ضابطہ دیوانی (Code of Civil Procedure, 1908)
ڈگریوں اور عدالتی احکامات کے نفاذ کا مکمل قانونی خاکہ
آرڈر XXI ضابطہ دیوانی عدالتوں کو یہ اختیار دیتا ہے کہ وہ اپنے جاری کردہ فیصلوں، ڈگریوں اور احکامات کو عملاً نافذ کر سکیں۔ اس آرڈر کا بنیادی مقصد یہ ہے کہ محض فیصلہ دینا کافی نہ ہو بلکہ ڈگری ہولڈر کو اس کا عملی فائدہ بھی حاصل ہو۔ آرڈر XXI ایک تفصیلی قانونی نظام فراہم کرتا ہے جس کے ذریعے رقم کی وصولی، جائیداد کی حوالگی، گرفتاری، قرقی، فروخت اور دیگر طریقوں سے ڈگری پر عملدرآمد کرایا جاتا ہے۔
ڈگری کے تحت ادائیگی کا طریقہ
ڈگری کے تحت قابلِ ادا رقم یا تو اس عدالت میں جمع کروائی جاتی ہے جو ڈگری پر عملدرآمد کی مجاز ہو، یا عدالت سے باہر ڈگری ہولڈر کو بینک، منی آرڈر یا تحریری رسید کے ذریعے دی جاتی ہے، یا پھر اس طریقے سے جو عدالت مقرر کرے۔ عدالت میں جمع شدہ رقم کی اطلاع ڈگری ہولڈر کو دینا لازمی ہے تاکہ شفافیت برقرار رہے۔
ادائیگی یا تصفیہ کی تصدیق
اگر ڈگری کی رقم عدالت سے باہر ادا کر دی جائے یا فریقین کے درمیان کسی حد تک تصفیہ ہو جائے تو ڈگری ہولڈر پر لازم ہے کہ وہ عدالت کو اس کی تصدیق دے۔ اگر ڈگری ہولڈر تصدیق نہ کرے تو فیصلہ شدہ فریق خود عدالت کو اطلاع دے سکتا ہے اور عدالت ڈگری ہولڈر کو نوٹس جاری کر کے معاملہ طے کرتی ہے۔ غیر قانونی یا غیر تحریری تصفیہ عدالت تسلیم نہیں کرتی۔
ڈگری پر عملدرآمد کرنے والی عدالتیں
اگر غیر منقولہ جائیداد ایک سے زیادہ عدالتی حدود میں واقع ہو تو کوئی ایک عدالت پوری جائیداد کو قرق اور فروخت کر سکتی ہے۔ جب ڈگری کسی اور ضلع میں نافذ کی جانی ہو تو وہ متعلقہ ضلع کی ڈسٹرکٹ کورٹ کو بھیجی جاتی ہے، جو خود یا کسی ماتحت عدالت کے ذریعے اس پر عملدرآمد کرواتی ہے۔
ڈگری کی منتقلی اور ضروری دستاویزات
ڈگری بھیجنے والی عدالت، ڈگری کی نقل، عدمِ تسکین کا سرٹیفکیٹ اور نفاذ سے متعلق احکامات دوسری عدالت کو ارسال کرتی ہے۔ وصول کرنے والی عدالت مزید ثبوت طلب کیے بغیر کارروائی شروع کر سکتی ہے، الا یہ کہ کسی خاص وجہ سے ثبوت ضروری سمجھے۔
ڈگری کے نفاذ کے لیے درخواست
ڈگری ہولڈر کو عملدرآمد کے لیے باقاعدہ درخواست دائر کرنا ہوتی ہے جس میں مقدمے کی تفصیلات، فریقین کے نام، ڈگری کی تاریخ، سابقہ درخواستوں کی صورتحال، واجب الادا رقم اور نفاذ کا مطلوبہ طریقہ واضح کرنا ضروری ہے۔ بعض صورتوں میں عدالت مصدقہ نقلِ ڈگری طلب کر سکتی ہے۔
منقولہ اور غیر منقولہ جائیداد کی قرقی
اگر منقولہ جائیداد مقروض کے قبضے میں نہ ہو تو اس کی فہرست دینا لازمی ہے۔ غیر منقولہ جائیداد کے لیے اس کی مکمل شناخت، حدود، ریکارڈ نمبر اور مقروض کا حصہ واضح کرنا ضروری ہوتا ہے۔ زرعی زمین کے لیے کلیکٹر کے ریکارڈ سے تصدیق طلب کی جا سکتی ہے۔
مشترکہ ڈگری اور حقِ منتقلی
اگر ڈگری ایک سے زائد افراد کے حق میں ہو تو کوئی ایک بھی پوری ڈگری کے نفاذ کے لیے درخواست دے سکتا ہے۔ اسی طرح اگر ڈگری یا اس کا حصہ تحریری طور پر منتقل ہو جائے تو نیا حق دار بھی نفاذ کا مجاز ہوتا ہے، تاہم مقروض اور سابق ڈگری ہولڈر کو نوٹس دینا ضروری ہے۔
درخواست کی جانچ اور قبولیت
عدالت درخواست وصول کر کے اس کی قانونی جانچ کرتی ہے۔ اگر کوئی کمی ہو تو اسے دور کرنے کا موقع دیا جاتا ہے۔ درخواست منظور ہونے پر عدالت نفاذ کا حکم دیتی ہے اور یہ خیال رکھا جاتا ہے کہ قرق شدہ جائیداد کی قیمت واجب الادا رقم کے متناسب ہو۔
کراس ڈگریاں اور باہمی ایڈجسٹمنٹ
اگر دونوں فریقین کے پاس ایک دوسرے کے خلاف رقوم کی ڈگریاں ہوں تو برابر رقم کی صورت میں دونوں کو تسلی بخش قرار دیا جاتا ہے۔ اگر رقم غیر برابر ہو تو صرف زیادہ رقم والی ڈگری قابلِ نفاذ ہوتی ہے اور فرق وصول کیا جاتا ہے۔ یہ اصول رہن یا چارج پر مبنی ڈگریوں پر بھی لاگو ہوتا ہے۔
شخص اور جائیداد کے خلاف بیک وقت نفاذ
عدالت کو اختیار حاصل ہے کہ وہ مقروض کی ذات اور جائیداد دونوں کے خلاف بیک وقت نفاذ سے انکار کر دے، اگر وہ مناسب سمجھے۔
نوٹس اور اعتراضات
اگر ڈگری پر ایک سال بعد عملدرآمد کی درخواست دی جائے یا کسی قانونی وارث کے خلاف نفاذ مطلوب ہو تو عدالت نوٹس جاری کرتی ہے۔ مقروض کو اعتراض کا حق حاصل ہے، مگر بعض صورتوں میں رقم جمع کروانا یا ضمانت دینا ضروری ہوتا ہے، ورنہ اعتراض ناقابلِ سماعت ہو جاتا ہے۔
نفاذ کا عمل اور عدالتی عملہ
عدالت نفاذ کے لیے باقاعدہ عمل جاری کرتی ہے جس پر تاریخ، دستخط اور مہر ہوتی ہے۔ نفاذ کرنے والا افسر کارروائی کی مکمل رپورٹ عدالت میں جمع کرواتا ہے، اور ناکامی کی صورت میں وجوہات بیان کرنا لازم ہوتا ہے۔
نفاذ پر حکمِ امتناع
اگر مقروض اپیل یا دیگر قانونی کارروائی کرنا چاہے تو عدالت عارضی طور پر نفاذ روک سکتی ہے۔ تاہم ایسی معطلی مستقل حق نہیں بلکہ عدالتی صوابدید پر مبنی ہوتی ہے۔ اپیلیٹ یا ڈگری جاری کرنے والی عدالت کے احکامات نفاذ کرنے والی عدالت پر لازم ہوتے ہیں۔
ڈگری کے نفاذ کے طریقے
رقم کی ڈگری گرفتاری، جائیداد کی قرقی و فروخت یا دونوں طریقوں سے نافذ کی جا سکتی ہے۔ مخصوص منقولہ جائیداد کی ڈگری ضبطی اور حوالگی کے ذریعے نافذ ہوتی ہے۔ چھ ماہ تک عدم تعمیل کی صورت میں جائیداد فروخت کر کے معاوضہ دیا جا سکتا ہے۔
خصوصی نوعیت کی ڈگریاں
معاہدے کی تکمیل، حقِ زوجیت کی بحالی یا حکمِ امتناع کی ڈگری دانستہ نافرمانی کی صورت میں گرفتاری یا جائیداد کی قرقی سے نافذ کی جاتی ہے۔ اگر فریق کوئی ادارہ ہو تو اس کی جائیداد کے ذریعے نفاذ کیا جاتا ہے۔
نتیجہ
آرڈر XXI ضابطہ دیوانی عدالتی فیصلوں کو مؤثر بنانے کا بنیادی ستون ہے۔ یہ آرڈر اس اصول کو عملی شکل دیتا ہے کہ انصاف صرف فیصلے تک محدود نہیں بلکہ اس کے نفاذ تک مکمل ہوتا ہے۔ اس کے بغیر عدالتی نظام محض نظری رہ جاتا، جبکہ آرڈر XXI اسے عملی قوت فراہم کرتا ہے۔
Order 21 with all rules
EXECUTION OF DECREES AND ORDERS
Payment under Decrees
1.-(1) All money payable under a decree shall be paid as follows, namely:-
a) into the Court whose duty it is to execute the decree;
or
b) out of Court to the decree-holder [through a bank or by postal money order or evidence
by writing signed by the decree- holder or his authorized agent]; or
c) otherwise as the Court which made the decree directs.
(2) Where any payment is made under clause (a) of sub-rule (1), notice of such payment
shall be given to the decree-holder.
2-(1) Where any money payable under a decree of any kind is paid out of Court, or the
decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder,
the decree-holder shall certify such payment or adjustment to the Court whose duty it is
to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment or adjustment and
apply to the Court to issue a notice to the decree-holder to show cause, on a day to be
fixed by the Court, why such payment or adjustment should not be recorded as certified;
and if, after service of such notice, the decree-holder fails to show cause why the
payment or adjustment should not be recorded as certified, the Court shall record the
same accordingly.
[(3) Any payment not made in the manner provided in rule 1 or any adjustment not made
in writing shall not be recognized by the Court executing the decree.]
Courts executing Decrees
3. Where immovable property forms one estate or tenure situate within the local limits of
the jurisdiction of two or more Courts, any one of such Courts may attach and sell the
entire estate or tenure.
4. [Transfer to Court of Small Causes.] Omitted by the A.O., 1949.
5. Where the Court to which a decree is to be sent for execution is situate within the same
district as the Court which passed such decree, such Court shall send the same directly to
the former Courts. But, where the Court to which the decree is to be sent for execution is
situate in a different district, the Court which passed it shall send it to the District Court
of the district in which the decree is to be executed.
6. The Court sending a decree for execution shall send
a) a copy of the decree;
b) a certificate setting forth that satisfaction of the decree has not been obtained by
execution within the jurisdiction of the Court by which it was passed, or where the decree
has been executed in part, the extent to which satisfaction has been obtained and what
part of the decree remains unsatisfied; and
c) a copy of any order for the execution of the decree, or, if no such order has been made,
a certificate to that effect.
7. The Court to which a decree is so sent shall cause such copies and certificates to be
filed, without any further proof of the decree or order for execution, or of the copies
thereof unless the Court for any special reasons to be recorded under the hand of the
Judge, requires such proof.
8. Where such copies are so filed, the decree or order may, if the Court to which it is sent
is the District Court, be executed by such Court or be transferred for execution to any
subordinate Court of competent jurisdiction.
9. Where the Court to which the decree is sent for execution is a High Court, the decree
shall be executed by such Court in the same manner as if it had been passed by such
Court in the exercise of its ordinary original civil jurisdiction.
Application for Execution
10. Where the holder of a decree desires to execute it, he shall apply to the Court which
passed the decree to or the officer (if any) appointed in this behalf, or if the decree has
been sent under the provisions hereinbefore contained to another Court then to such
Court or to the proper officer thereof.
11. (1) Where a decree is for the payment of money the Court may, on the oral
application of the decree-holder at the time of the passing of the decree, order immediate
execution thereof by the arrest of the judgment-debtor prior to the preparation of a
warrant if he is within the precincts of the Court.
(2) Save as otherwise provided by sub-rule (1), every application for the execution of a
decree shall be in writing, signed and verified by the applicant or by some other person
proved to the satisfaction of the Court to be acquainted with the facts of the case, and
shall contain in a tabular form the following particulars, namely -
a) the number of the suit;
b) the names of the parties;
c) the date of the decree;
d) whether any appeal has been preferred from the decree;
e) whether any, and (if any), what payment or other adjustment of the matter in
controversy has been made between the parties subsequently to the decree;
f) whether any, and (if any) what, previous applications have been made for the execution
of the decree, the dates of such applications and their results;
g) the amount with interest (if any) due upon the decree, or other relief granted thereby,
together with particulars of any cross-decree, whether passed before or after the date of
the decree sought to be executed;
h) the amount of the costs (if any) awarded;
i) the name of the person against whom execution of the decree is sought; and
j) the mode in which the assistance of the Court is required, whether -
i) by the delivery of any property specifically decreed;
ii) by the attachment and sale, or by the sale without attachment, of any property;
iii) by the arrest and detention in prison of any person;
iv) by the appointment of a receiver;
v) otherwise as the nature of the relief granted may require.
(3) The Court to which an application is made under sub-rule (2) may require the
applicant to produce a certified copy of the decree.
12. Where an application is made for the attachment of any movable property belonging
to a judgment-debtor but not in his possession, the decree- holder shall annex to the
application an inventory of the property to be attached, containing a reasonably accurate
description of the same.
13. Where an application is made for the attachment of any immovable property
belonging to a judgment-debtor, it shall contain at the foot-
a) a description of such property sufficient to identify the same and, in case such property
can be identified by boundaries or numbers in a record of settlement or survey, a
specification of such boundaries or numbers; and
b) a specification of the judgment-debtor's share or interest in such property to the best of
the belief of the applicant, and so far as he has been able to ascertain the same.
14. Where an application is made for the attachment of any land which is registered in the
office of the Collector, the Court may require the applicant to produce a certified extract
from the register of such office, specifying the persons registered as proprietors of, or as
possessing any transferable interest in the land or its revenue, or as liable to pay revenue
for the land, and the shares of the registered proprietors.
15.-(1) Where a decree has been passed jointly in favour of more persons than one, any
one or more of such persons may, unless the decree imposes any condition to the
contrary, apply for the execution of the whole decree for the benefit of them all, or, where
any of them has dies, for the benefit of the survivors and the legal representatives of the
deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be executed on an
application made under this rule, it shall make such order as it deems necess
16. Where a decree or, if a decree has been passed jointly in favour of two or more
persons, the interest of any decree-holder in the decree is transferred by assignment in
writing or by operation of law, the transferee may apply for execution of the decree to the
Court which passed it; and the decree may be executed in the same manner and subject to
the same conditions as if the application were made by such decree-holder;
Provided that, where the decree, or such interest as aforesaid, has been transferred by
assignment, notice of such application shall be given to the transferor and the judgment-
debtor, and the decree shall not be executed until the Court has heard their objections (if
any) to its execution;
Provided also that, where a decree for the payment of money against two or more persons
has been transferred to one of them, it shall not be executed against the others.
17.- (1) On receiving an application for the execution of a decree as provided by rule 11,
sub-rule(2), the Court shall ascertain whether such of the requirements of rules 11 to 14
as may be applicable to the case have been complied with; and if they have not been
complied with, the Court may reject the application, or may allow the defect to tbe
remedied then and there or within a time to be fixed by it.
(2) Where an application is amended under the provisions of sub-rule (1), it shall be
deemed to have been an application in accordance with law and presented on the date
when it was first presented.
(3)Every amendment made under this rule shall be signed or initialled by the Judge.
(4) When the application is admitted, the Court shall enter in the proper register a not eof
the application and the date on which it was made, and shall, subject to the provisions
hereinafter contained, order execution of the decree according to the nature of the
application;
Provided that, in the case of decree for the payment of money, the alue of the property
attached shall, as nearly as may be, correspond with the amount due under the decree.
18 - (1) Where applications are made to a Court for the execution of cross-decrees in
separate suits for the payment of two sums of money passed between the same parties
and capable of execution at the same time such Court, then -
a) if the two sums are equal, satisfaction shall be entered upon both decrees; and
b) if the two sums are unequal, execution may be taken out only by the holder of the
decree for the larger sum and for so much only as remains after deducting the smaller
sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum
as well as satisfaction of the decree for the smaller sum.
(2) This rule shall be deemed to apply where either party is an assignee of one of the
decrees and as well in respect of judgment-debts due by the original assignor as in respect
of judgment-debts due by the assignee himself.
(3) This rule shall not be deemed to apply unless -
a) the decree-holder in one of the suits in which the decrees have been made is the
judgment-debtor in the other and each party fills the same character in both suits; and
b) the sums due under the decree are definite.
(4) The holder of a decree passed against several persons jointly and severally may treat
it as a cross-decree in relation to a decree passed against him singly in favour of one or
more of such persons.
Illustrations
(a) A holds a decree against B for Rs1,000. B holds a decree against A for the payment of
Rs.1000 in case A fails to deliver certain goods at a future day. B cannot treat his decree
as a cross-decree under this rule.
(b) A and B, co-plaintiffs, obtain a decree for Rs.1,000 against C, and C obtains a decree
for kRs.1,000 against B. C cannot treat his decree as a cross-decree under this rule.
(c) A, obtains a decree against B for Rs.1,000. C who is a trustee for B, obtains a decree
on behalf of B against A for Rs.1,000. B cannot treat C's decree as a cross-decree under
this rule.
(d) A, B, C, D and E are jointly and severely liable for Rs.1,000 under a decree obtained
by F. A obtains a decree for Rs.100 against F singly and applies for execution to the
Court in which the joint-decree is being executed. F may treat his joint-decree as a cross-
decree under this rule.
19. Where application is made to a Court for the execution of a decree under which two
parties are entitled to recover sums of money from each other, then, -
a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and
b) if the two sums are unequal, execution may be taken out only by the party entitled to
the larger sum and for so much only as remains after deducting the smaller sum, and
satisfaction for the smaller sum shall be entered upon the decree.
20. The provisions contained in rules 18 and 19 shall apply to decrees for sale in
enforcement of a mortgage or charge.
21. The Court may, in its discretion, refuse execution at the same time against the person
and property of the judgment-debtor.
22-(1) Where an application for execution is made -
a) more than one year after the date of the decree, or
b) against the legal representative of a party to the decree, [or where an application is
made for execution of a decree filed under the provisions of section 44-A] the Court
executing the decree shall issue a notice to the person against whom execution is applied
for requiring him to show cause, on a date to be fixed, why the decree should not be
executed against him:
Provided that no such notice shall be necessary in consequence of more than one year
having elapsed between the date of the decree and the application for execution if the
application is made within one year from the date of the last order against the party
against whom execution is applied for, made on any previous application for execution,
or in consequence of the application being made against the legal representative of the
judgment-debtor, if upon a previous application for execution against the same person the
Court has ordered execution to issue against him:
(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing
any process in execution of a decree without issuing the notice thereby prescribed, if, for
reasons to be recorded, it considers that the issue of such notice would cause
unreasonable delay or would defeat the ends of justice.
23. (1) Where the person to whom notice is issued under the last preceding rule does not
appear or does not show cause to the satisfaction of the Court why the decree should not
be executed, the Court shall order the decree to be executed.
(2) Where such person offers any objection to the execution of the decree, the Court shall
consider such objection and make such order as it thinks fit.
[Objection to Execution
23-A . An objection by the judgment-debtor to the execution of a decree shall not be
considered by the Court unless -
a) in case of a decree for the payment of money, he either deposits the decretal amount in
Court or furnishes security for its payment; and
b) in the case of any other decree, he furnishes security for the due performance of the
decree]
Process for Execution
24. (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. (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, if it thinks fit,
summon and examine witnesses as to such inability, and shall record the result.
Stay of Execution
26. (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
judgment-debtor 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 judgment-debtor 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.
[(3) - Omitted].
27. No order of restitution or discharge under rule 26 shall prevent the property or person
of a judgment-debtor from being retaken in execution of the decree sent for execution.
28. 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. 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. 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 […] prison of
the judgment-debtor, or by the attachment and sale of his property, or by the both.
31. (1) Where the decree is for any specific movable, or for any share in a specific
movable, it may be executed by the seizure, if practicable, of the movable 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 [….] prison of the
judgment-debtor, or by the attachment of his property, or by both.
(2) Where any attachment under sub-rule (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
attached property sold, such property may be sold, and out of the proceeds the Court may
award to the decree-holder, in cases where any amount has been fixed by the decree to be
paid as an alternative to delivery of movable 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 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 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. (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 [ 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 [….]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 [….] prison
of the directors or other principal officers thereof or by both attachment and detention.
(3)Where any attachment under sub-rule (1) or sub-rule(2) has remained in force for one
year if the judgement debtor has not obeyed the decree and the decree-holder has applied
to have the attached property sold, such property may be sold; and out of the proceeds the
Court may award to the decree-holder such compensation as it thinks fit, and shall pay
the balance (if any), to the judgment-debtor 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 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
decree-holder or some other person appointed by the Court,. At the cost of the judgment-
debtor, 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.
Illustrations
A, a person of little substance, erects a building which renders uninhabitable a family
mansion belonging to B. A in spite 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 execution-proceedings.
33. (1) Notwithstanding anything in rule 32, the Court either at the time of passing a
decree[ against a husband] for the restitution of conjugal rights or at any time afterwards,
may order that the decree [ shall be executed in the manner provided in this rule].
(2) Where the Court has made an order under sub-rule (1)*** it may order that, in the
event of the decree not being obeyed within such period as may be fixed in this behalf,
the judgment-debtor shall make to the decree-holder such periodical payments as may be
just, and, if it thinks fit, require that the judgement-debtor shall, to its satisfaction, secure
to the decree-holder such periodical payments.
(3)The Court may from time to time vary or modify any order made under sub-rule (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 i 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.(1) Where a decree is for the execution of a document or for the endorsement of 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.
(2) 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.
(3) Where the judgement-debtor 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.
(4) 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.
(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 law for the time being in force or the decree-
holder 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. (1) Where a decree is for the delivery of any immovable 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 immovable 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 decree-holder in
possession.
36. Where a decree is for the delivery of any immovable 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.
Arrest and Detention in [….] Prison
37. (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 [……] prison of a
judgment-debtor who is liable to be arrested in pursuance of the application, the Court
[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 [detained in] prison.
[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
judgment-debtor 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
decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.
38. Every warrant for the arrest of a judgment-debtor shall direct the officer entrused 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.
39. [Omitted by Civil Laws (Reforms) Act (XIV of 1994), S.11(7) (vi)].
40. (1) When a judgment-debtor 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 decree-holder and take all
such evidence as may be produced by him in support of his application for execution, and
shall then give the judgment-debtor an opportunity of showing cause why he should not
be [detained in] prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its
discretion, order the judgment-debtor 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 sub-rule (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 judgment-debtor in [….] prison and shall in that event cause him to be
arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying the
decree, the Court may, before making the order of detention, leave the judgment-debtor
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 judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-rule (3), it shall
disallow the application and, if the judgment-debtor is under arrest, direct his release.]
Attachment of Property
41. Where a decree is for the payment of money the decree-holder may apply to the Court
for an order that -
a) the judgment-debtor, or
b) in the case of a corporation, any officer thereof, or
c) any other person,
be orally examined as to whether any or what debts are owing to the judgment-debtor and
whether the judgment-debtor has any and what other property or means of satisfying the
decree; and the Court may make an order for the attendance and examination of such
judgment-debtor or officer or other person, and for the production of any books or
documents.
42. Where a decree directs an inquiry as to rent or mesne profits or any other matter, the
property of the judgment-debtor may, before the amount due from him has been
ascertained, be attached, as in the case of an ordinary decree for the payment of money.
43. Where the property to be attached is movable property, other than agricultural
produce, in the possession of the judgment-debtor the attachment shall be made by acutal
seizure, and the attaching officer shall keep the property in his own custody or in the
custody of one of his subordinates, and shall be responsible for the due custody thereof:
Provided that, when the property seized is subject to speedy and natural decay, or when
the expense of keeping in custody is likely to exceed its vaue, the attaching officer may
sell it at once.
44. Where the property to be attached is agricultural produce, the attachment shall be
made affixing a copy of the warrant of attachment,-
a) where such produce is a growing crop, on the land on which such crop has grown or
b) where such produce has been cut or gathered, on the threshing-floor or place for
treading out grain or the like or fodder-stack on or in which it is deposited,
and another copy on the outer door or on some other conspicuous part of the house in
which the judgment-debtor ordinarily resides or, with the leave of the Court, on the outer
door or on some other conspicuous part of the house in which he carries on business or
personally works for gain or in which he is known to have last resided or carried on
business or personally worked for gain; and the produce shall thereupon be deemed to
have passed into the possession of the Court.
45. (1) Where agricultural produce is attached, the Court shall make such arrangements
for the custody thereof as it may deem sufficient and, for the purpose of enabling the
Court to make such arrangements every application for the attachment of a growing crop
shall specify the time at which it is likely to be fit to be cut or gathered.
(2) Subject to such conditions as may be imposed by the Court in this behalf either in the
order of attachment or in any subsequent order, the judgment-debtor may tend, cut, gather
and store the produce and do any other act necessary for maturing or preserving it; and if
the judgment-debtor fails to do all or any of such acts, the decree-holder may, with the
permission of the Court and subject to the like conditions, do all or any of them either by
himself or by any person appointed by him in this behalf, and the costs incurred by the
decree-holder shall be recoverable from the judgment-debtor as if they were included in,
or formed part of, the decree.
(3) Agricultural produce attached as a growing crop shall not be deemed to have ceased
to be under attachment or to require re-attachment merely because it has been severed
from the soil.
(4) Where an order for the attachment of a growing crop has been made a considerable
time before the crop is likely to be fit to be cut or gathered, the Court may suspend the
execution of the order for such time as it thinks fit, and may, in its discretion, make a
further order prohibiting the removal of the crop pending the execution of the order of
attachment.
(5) A growing crop which from its nature does not admit of being stored shall not be
attached under this rule at any time less than twenty days before the time at which it is
likely to be fit to be cut or gathered.
46. (1) In the case of -
a) a debt not secured by a negotiable instrument,
b) a share in the capital of a corporation,
c) other movable property not in the possession of the judgment-debtor, except property
deposited in, or in the custody of, any Court,
the attachment shall be made by a written order prohibiting, -
i) in the case of debt the creditor from recovering the debt and the debtor from making
payment thereof until the further order of the Court;
ii) in the case of the share, the person in whose name the share may be standing from
transferring the same or receiving any dividend thereon;
iii) in the case of the other movable property except as aforesaid, the person in possession
of the same from giving it over to the judgment-debtor.
(2) A copy of such order shall be affixed on some conspicuous part of the Court-house
and another copy shall be sent in the case of the debt, to the debtor, in the case of the
share, to the proper officer of the corporation, and, in the case of the other movable
property (except as aforesaid), to the person in possession of the same.
(3) A debtor prohibited under clause (I) of sub-rule (1) may pay the amount of his debt
into Court, and such payment shall discharge him as effectually as payment to the party
entitled to receive the same.
47. Where the property to be attached consists of the share or interest of the judgment-
debtor in movable property belonging to him and another as co-owners, the attachment
shall be made by a notice to the judgment-debtor prohibiting him from transferring the
share or interest or charging it in any way.
48.-(1) Where the property to be attached is the salary or allowance of a [servant of the
[State] ] or a servant of a railway company or local authority, the Court, whether the
judgment-debtor or the disbursing officer is or is not within the local limits of the Court's
jurisdiction, may 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 instalments
as Court may direct; and upon notice of the order to such officer as [the appropriate
Government may by notification in the official Gazette] appoint [in this behalf,-
a) where such salary or allowances are to be disbursed within the local limits to which
this Code for the time being extends, the officer or other person whose duty I is to
disburse the same shall withhold and remit to the Court the amount due under the order,
or the monthly instalments, as the case may be;
b) where such salary or allowances are to be disbursed beyond the said limits, the officer
or other person within those limits whose duty it is to instruct the disbursing authority
regarding the amount of the salary or allowances to be disbursed shall remit to the Court
the amount due under the order, or the monthly instalments, as the case may be, and shall
direct the disbursing authority to reduce the aggregate of the amounts from time to time
be disbursed by the aggregate of the amounts from time to time remitted to the Court].
(2) Where the attachable proportion of such salary or allowances is already being
withheld and remitted to a Court in pursuance of a previous and unsatisfied order of
attachment, the officer appointed by [the appropriate Government] in this behalf shall
forthwith return the subsequent order to the Court issuing it with a full statement of all
the particulars of the existing attachment.
(3) Every order made under this rule, unless it is returned in accordance with the
provisions of sub-rule (2), shall, without further notice or other process, bind [the
appropriate Government] or the railway company or local authority, as the case may be,
while the judgment-debtor is within the local limits to which this Code for the time being
extends and while he is beyond hose limits if he is in receipt of any salary or allowances
payable out of[the revenues of the Central Government or a Provincial Government] or
the funds of a railway company carrying on business in any part of [Pakistan or local
authority in [Pakistan]; and [the appropriate Government] or the railway company or
local authority, as the case may be, shall be liable for any sum paid in contravention of
this rule.
[Explanation - In this rule "appropriate Government" means
i. as respects any[person] in the service of the Central Government, or any servant of a
"railway or of a cantonment authority or of the port authority of a major port, the Central
Government;
ii. * * * * * *
iii. as respects any other [servant of the [State] or a servant of any other railway or local
authority the Provincial Government]
49. -(1) Save as otherwise provided by this rule, property belonging to a partnership shall
not be attached or sold in execution of a decree other than a decree passed against the
firm or against the partners in the firm as such.
(2) The Court may, on the application of the holder of a decree against a partner, make an
order charging the interest of such partner in the partnership property and profits with
payment of the amount due under the decree, and may, by the same or a subsequent
order, appoint a receiver of the share of such partner in the profits (whether already
declared or accruing) and of any other money which may be coming to him in respect of
the partnership, and direct accounts and inquiries and make an order for the sale of such
interest or other orders as might have been directed or made if a charge had been made in
favour of the decree-holder by such partner, or as the circumstances of the case may
require.
(3) The other partner or partners shall be at liberty at any time to redeem the interest
charged or, in the case of a sale being directed, to purchase the same.
(4) Every application for an order under sub-rule (2) shall be served on the judgment-
debtor and on his partners or such of them as are within [Pakistan].
(5)Every application made by any partner of the judgment-debtor under sub-rule (3) shall
be served on the decree-holder and on the judgment-debtor and on such of the other
partners as do not join in the application and as are within [Pakistan].
(6) Service under sub-rule (4) or sub-rule(5) shall be deemed to be service on all the
partners and all orders made on such applications shall be similarly served.
50 - (1) Where a decree has been passed against a firm execution may be granted -
a) against any property of the partnership;
b) against any person who has appeared in his own name under rule 6 or rule 7 of Order
XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a
partner;
c) against any person who has been individually served as a partner with a summons and
has failed to appear:
Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the
provisions of section 247 of the Contract Act. 1972.
(2) Where the decree-holder claims to be entitled to cause the decree to be executed
against any person other than such a person as is referred to in sun-rule (1), clauses (b)
and (c), as being a partner in the firm he may apply to the Court which passed the decree
for leave, and where the liability is not disputed, such Court may grant such leave, or
where such liability, is disputed, may order that the liability of such person be tried and
determined in any manner in which any issue in a suit may be tried and determined.
(3) Where the liability of any person has been tried and determined under sub-rule (2),
the order made thereon shall have the same force and be subject to the same conditions as
to appeal or otherwise as if it were a decree.
(4) Save as against any property of the partnership, a decree against a firm shall not
release, render liable or otherwise affect any partner therein unless he has been served
with a summons to appear and answer.
51. Where the property is a negotiable instrument not deposited in a Court, nor in the
custody of a public officer, the attachment shall be made by actual seizure, and the
instrument shall be brought into Court and held subject to further orders of the Court.
52. Where the property to be attached is in the custody of any Court or public officer, the
attachment shall be made by a notice to such court or officer, requesting that such
property and any interest or dividend becoming payable thereon, may be held subject to
the further orders of the Court from which the notice is issued:
Provided that, where such property is in the custody of a Court any question of title or
priority arising between the decree-holder and any other person, not being the judgment-
debtor, claiming to be interested in such property by virtue of any assignment, attachment
or otherwise, shall be determined by such Court.
53- (1) Where the property to be attached is a decree, either for the payment of money or
for sale in enforcement of a mortgage or charge, the attachment shall be made, -
a) if the decrees were passed by the same Court, then by order of such Court, and
b) if the decree sought to be attached was passed by another Court, then by the issue to
such other Court of a notice by the Court which passed the decree sought to be executed
requesting such other Court to stay the execution of its decree unless and until -
i. the Court which passed the decree sought to be executed cancels the notice, or
ii. the holder of the decree sought to be executed or his judgment-debtor applies to the
Court receiving such notice to execute its own decree.
(2) Where a Court makes an order under clause (a) of sub-rule (1) or receives an
application under sub-head (ii) of clause (b) of the said sub-rule, it shall, on the
application of the creditor who has attached the decree or his judgment-debtor, proceed to
execute the attached decree and apply the net proceeds in satisfaction of the decree
sought to be executed
3) The holder of a decree sought to be executed by the attachment of another decree of
the nature specified in sub-rule (1) shall be deemed to be the representative of the holder
of the attached decree and to be entitled to execute such attached decree in any manner
lawful for the holder thereof.
(4) Where the property to be attached in the execution of a decree is a decree other than a
decree of the nature referred to in sub-rule (1), the attachment shall be made, by a notice
by the Court which passed the decree sought to be executed, to the holder of the decree
sought to be attached, prohibiting him from transferring or charging the same in any way;
and where such decree has been passed by any other Court, also by sending to such other
Court also by sending to such other Court a notice to abstain from executing the decree
sought to be attached until such notice is cancelled by the Court from which it was sent.
(5) The holder of a decree attached under this rule shall give the Court executing the
decree such information and aid as may reasonably be required.
(6)On the application of the holder of a decree sought to be executed by the attachment of
another decree, the Court making an order of attachment under this rule shall give notice
of such order to the judgment-debtor bound by the decree attached; and no payment or
adjustment of the attached decree made by the judgment-debtor in contravention of such
order after receipt of notice thereof, either through the Court or otherwise, shall be
recognized by any Court so long as the attachment remains in force.
54 - (1) Where the property is immovable, the attachment shall be made by an order
prohibiting the judgment-debtor from transferring or charging the property in any way,
and all persons from making any benefit from such transfer or charge.
(2) The order shall be proclaimed at some place on or adjacent to such a property by beat
of drum or other customary mode, and a copy of the order shall be affixed on a
conspicuous part of the property and then upon a conspicuous part of the Court-house,
and also, where the property is land paying revenue to the Government, in the office of
the Collector of the district in which the land is situate.
55. Where-
a) the amount decreed with costs and all charges and expenses resulting from the
attachment of any property are paid into Court or,
b) satisfaction of the decree is otherwise made through the Court or certified to the Court
or
c) the decree is set aside or reversed,
the attachment shall be deemed to be withdrawn, and, in the case of immovable property,
the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and
a copy of the proclamation shall be affixed in the manner prescribed by the last preceding
rule.
56. Where the property attached is current coin or currency notes, the court may at any
time during the continuance of the attachment, direct that such coin or notes, or a part
thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree
to receive the same.
57. Where any property has been attached in execution of a decree but by reason of the
decree-holder's default the Court is unable to proceed further with the application for
execution, it shall either dismiss the application or for any sufficient reason adjourn the
proceedings to a future date. Upon the dismissal of such application the attachment shall
cease.
Investigation of Claims and Objections
58.- (1) Where any claim is preferred to, or any objection is made to the attachment of,
any property attached in execution of a decree on the ground that such property is not
liable to such attachment, the Court shall proceed to investigate the claim or objection
with the like power as regards the examination of the claimant or objector, and in all
other respects, as if he was a party to the suit:
[Provided that no such investigation shall be made where it appears to the Court that the
claim or objection (whether made before or after the sale) has been designedly or
unnecessarily delayed, or was not made within a reasonable time or within one year of
the date of the first attachment of the said property in the execution of the said decree,
whichever is earlier, unless the claimant or objector -
a) proves title acquired in good faith and for consideration subsequent to the date of the
first attachment;
b) proves that his predecessors-in-interest, whether their interest existed at the time of
such attachment or was acquired thereafter, fraudulently omitted to make a claim or
objection; and
c) impleads all such predecessors-in-interest, as parties]
(2) Where the property to which the claim or objection applies has been advertised for
sale, the Court ordering the sale may postpone it pending the investigation of the claim or
objection.
[59. The claimant or objector must adduce evidence to show that at the date of the
attachment he had a title to, or right or interest in, the property attached.
60. Where upon the said investigation the Court is satisfied that the claimant or objector
had a title to, or right or interest in, the said property and the said property was not, by
reason of such title, right or interest, wholly or partly liable to attachment, the Court shall
make an order releasing the property, wholly, or as the case may be, to such extent as it is
not so liable, from attachment.
61. Where the Court is satisfied that the property is subject to mortgage or charge in
favour of some person and thinks fit to continue the attachment, it may do so subject to
such mortgage or charge.
62. All questions relating to the right title or interest of the claimant or objector in the
attached property shall be adjudicated upon and determined by the Court and no separate
sit shall lie to establish such title, right or interest.]
63. [Omitted]
Sale Generally
64. Any Court executing a decree may order that any property attached by it and liable to
sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold,
and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the
party entitled under the decree to receive the same.
65. Sale as otherwise prescribed, every sale in execution of a decree shall be conducted
by an officer of the Court or by such other person as the Court may appoint in this behalf,
and shall be made by public auction in manner prescribed.
66- (1) Where any property is ordered to be sold by public auction in execution of a
decree, the Court shall cause a proclamation of the intended sale to be made in the
language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-holder and the
judgment-debtor and shall state the time and place of sale, and specify as fairly and
accurately as possible -
a) the property to be sold;
b) the revenue assessed upon the estate or part of the estate, where the property to be sold
is an interest in an estate or in part of an estate paying revenue to the Government;
c) any incumbrance to which the property is liable;
d) the amount for the recovery of which the sale is ordered; and
e) every other thing which the Court considers material for a purchaser to know in order
to judge of the nature and value of the property.
(3) Every application for an order for sale under this rule shall be accompanied by a
statement signed and verified in the manner hereinbefore prescribed for the signing and
verification of pleadings and containing, so far as they are known to or can be ascertained
by the person making the verification, the matters required by sub-rule (2) to be specified
in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the
Court may summon any person whom it thinks necessary to summon and may examine
him in respect to any such matters and require him to produce any document in his
possession or power relating thereto.
67 - (1) Every proclamation shall be made and published, as nearly as may be, in the
manner prescribed by rule 54, sub-rule (2).
(2) Where the Court so directs, such proclamation shall also be published in the [official
Gazette] or in a local newspaper, or in both , and the costs of such publication shall be
deemed to be costs of the sale.
(3) Where property is divided into lots for the purpose of being sold separately, it shall
not be necessary to make a separate proclamation for each lot unless proper notice of the
sale cannot, in the opinion of the Court, otherwise be given.
68. Save in the case of property of the kind described in the proviso to rule 34, no sale
hereunder shall, without the consent in writing of the judgment-debtor, take place until
after the expiration of at least thirty days in the case of immovable property, and of at
least fifteen days in the case of movable property, calculated from the date on which the
copy of the proclamation has been affixed on the Court-house of the Judge ordering the
sale.
69 - (1) The Court may, in its discretion, adjourn any sale hereunder to a specified day
and hour, and the officer conducting any such sale may in his discretion adjourn the sale,
recording his reasons for such adjournment:
Provided hat, where the sale is made in, or within the precincts of, the Court-house, no
such adjournment shall be made without the leave of the Court.
(2) Where a sale is adjourned under sub-rule(1) for a longer period than seven days a
fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to
waive it.
(3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs
(including the costs of the sale) are tendered to the officer conducting the sale, or proof is
given to his satisfaction that the amount of such debt and costs has been paid into the
Court which ordered the same.
70. Nothing in rules 66 to 69 shall be deemed to apply to any case in which the execution
of a decree has been transferred to the Collector.
71. Any deficiency of price which may happen on a re-sale by reason of the purchaser's
default and all expenses attending such re-sale, shall be certified to the Court or to the
Collector or subordinate of the Collector, as the case may be, by the officer or other
person holding the sale, and shall at the instance of either the decree-holder or the
judgment-debtor, be recoverable from the defaulting purchaser under the provisions
relating to the execution of a decree for the payment of money.
72.- (1) No holder of a decree in execution of which property is sold shall, without the
express permission of the Court, bid for or purchase the property.
(2) Where a decree-holder purchases with such permission, the purchase-money and the
amount due on the decree may, subject to the provisions of section 73, be set-off against
one another, and the Court executing the decree shall enter up satisfaction of the decree in
whole or in part accordingly.
(3) Where a decree-holder purchases, by himself or through another person, without such
permission the Court may, if it thinks fit, on the application of the judgment-debtor or
any other person whose interests are affected by the sale, by order set aside the sale; and
the costs of such application and order, and any deficiency of price which may happen on
the re-sale and all expenses attending it, shall be paid by the decree-holder.
73. No officer or other person having any duty to perform in connection with any sale
shall, either directly or indirectly, bid for,. acquire or attempt to acquire any interest in the
property sold.
Sale of Movable Property
74.- (1) Where the property to be sold is agricultural produce the sale shall be held, -
a) if such produce is a growing crop, on or near the land on which such crop has grown,
or
b) if such produce has been cut or gathered, at or near the threshing-floor or place for
treading out grain or the like or fodder-stack on or in which it is deposited:
Provided that the Court may direct the sale to be held at the nearest place of public resort,
if it is of opinion that the produce is thereby likely to sell to greater advantage.
(2) Where on the produce being put up for sale, -
a) a fair price, in the estimation of the person holding the sale, is not offered for it, and
b) the owner of the produce or a person authorized to act in his behalf applies to have the
sale postponed till the 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
maybe offered for the produce.
75.- (1) Where the property to be sold is a growing crop and the crop from its nature
admits of being stored but has not yet been stored, the day of the sale shall be so fixed as
to admit of its being made ready for storing before the arrival of such day, and the sale
shall not be held until the crop has been cut or gathered and is ready for storing.
(2) Where the crop from its nature does not admit of being stored, it may be sold before it
is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all
that is necessary for the purpose of tending and cutting and or gathering it.
76. Where the property to be sold is a negotiable instrument or a share in a corporation,
the Court may, instead of directing the sale to be made by public auction, authorise the
sale of such instrument or share through a broker.
77- (1) Where movable property is sold by public auction the price of each lot shall be
paid at the time of sale or as soon after as the officer or other person holding the sale
directs, and in default 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 the same, and the sale shall become absolute.
(3) Where the movable property to be sold is 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 the same sum for such property or for any lot, the bidding shall be
deemed to be the bidding of the co-owner.
78. No irregularity in publishing or conducting he sale of movable property shall vitiate
the sale; but any person sustaining any injury by reason of such irregularity at the hand of
any other person may institute a suit against him for compensation or (if such other
person is the purchaser) for the recovery of the specific property and for compensation in
default of such recovery.
79.-(1) Where the property sold is movable property of which actual seizure has been
made, it shall be delivered to the purchaser.
(2) Where the property sold is movable property in the possession of some person other
than 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 any person except the purchaser.
(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share
in 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 the debtor
from making payment thereof to any person except the purchaser, or prohibiting the
person in whose name the share may be standing from making any transfer of the share to
any person except the purchaser, or receiving payment of any dividend or interest
thereon, and the manager, secretary or other proper officer of the corporation from
permitting any such transfer or making any such payment to any person except the
purchaser.
80.-(1) Where the execution of a document or the endorsement of the party in whose
name a negotiable instrument or a share in a corporation is standing is required to transfer
such negotiable instrument or share, the Judge or such officer as he may appoint in this
behalf may execute such document or make such endorsement as may be necessary, and
such execution or endorsement shall have the same effect as an execution or endorsement
by the party.
(2) Such execution or endorsement may be in the following form namely:-
AB by CD Judge of the Court of (or as the case may be) in a suit by EF against AB.
(3) Until the transfer of such negotiable instrument or share, the Court may by order
appoint some person to receive any interest or divided due thereon and to sign a receipt
for the same; 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.
81. In case of any movable property not hereinbefore provided for, the Court may make
an order vesting such property in the purchaser or as he may direct; and such property
shall vest accordingly.
Sale of Immovable Property
82. Sales of immovable property in execution of decrees may be ordered by any Court
other than a Court of Small Causes.
83.- (1) Where an order for the sale of immovable property has been made, if the
judgment-debtor can satisfy the Court that there is reason to believe that the amount of
the decree may be raised by the mortgage or lease or private sale of such property, or
some part thereof, or of any other immovable property of the judgement-debtor the Court
may on his application postpone the sale of the property comprised in the order for sale
on such terms and for such period as it thinks proper, to enable him to raise the amount.
(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him
within a period to be mentioned therein, and notwithstanding anything contained in
section 64 to make the proposed mortgage lease or sale:
Provided that all monies payable under such mortgage, lease or sale shall be paid not to
the judgment-debtor, but save in so far as a decree-holder is entitled to set-off such
money under the provisions of rule 72 into Court:
Provided also that no mortgage leases or sale under this rule shall become absolute until
it has been confirmed by the Court.
(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sold
in execution of a decree for sale in enforcement of a mortgage of or charge on such
property.
84.-(1) On every sale of immovable property the person declared to be the purchaser shall
pay immediately after such declaration a deposit ot twenty-five per cent. On the amount
of his purchase money to the officer or other person conducting the sale and in default of
such deposit the property shall forthwith be resold.
(2) Where the decree holder is the purchaser and is entitled to set off the purchase-money
under rule 12, the Court may dispense with the requirements of this rule.
85. The full amount of purchase-money payable shall be paid by the purchaser into Court
before the Court closes on the fifteenth day from the sale of the property:
Provided that in calculating the amount to be so paid into Court, the purchaser shall have
the advantage of any set-off to which he may be entitled under rule 72.
86. In default of payment within the period mentioned in the last preceding rule the
deposit may if the court thinks fit after defraying the expenses of the sale, be forfeited to
the Government and the property shall be re-sold and the defaulting purchaser shall
forfeit all claim to the property or to any part of the sum for which it may subsequently be
sold.
87. Every re-sale of immovable property in default of payment of the purchase-money
within the period allowed for such payment shall be made after the issue of a fresh
proclamation in the manner and for the period hereinbefore prescribed for the sale.
88. Where the property sold is a share of undivided immovable property and two or more
persons of whom one is a co-sharer, respectively bid the same sum for such property or
for any lot the bid shall be deemed to be the bid of the co-sharer.
89. - (1) Where immovable property has been sold in execution of a decree, any person
either owning such property or holding an interest therein by virtue of a title acquired
before such sale may apply to have the sale set aside on his depositing in Court, -
a) for payment to the purchaser a sum equal to five per cent of the purchase money; and
b) for payment to the decree holder the amount specified in the proclamation of sale as
that for the recovery of which the sale was ordered less any amount which may since the
date of such proclamation of sale have been received by the decree holder.
(2) Where a person applied under rule 90 to set aside the sale of his immovable property
he shall not unless he withdraws his application be entitled to make or prosecute an
application under this rule.
(3) Nothing in this rule shall relieve the judgement-debtor from any liability he may be
under in respect of costs and interest not covered by the proclamation of sale.
90. Where any immovable property has been sold in execution of a decree the decree-
holder or any person entitled to share in a rateable distribution of assets or whose
interests are affected by the sale may apply to the Court to set aside the sale on the
ground of a material irregularity or fraud in publishing or conducting it:
Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon
the facts proved the Court is satisfied that the applicant has sustained substantial injury by
reason of such irregularity or fraud [and]
[Provided also that no such application shall be entertained unless the applicant deposits
such amount not exceeding twenty per cent of the sum realized at the sale or furnishes
such security as the Court may direct]
[Provided further that no such application shall be entertained unless the applicant
deposits such amount not exceeding twenty per cent of the sum realized at the sale or
furnishes such security as the Court may direct.]
91. 91. The purchaser at any such sale in execution of a decree may apply to the Court to
set aside the sale on the ground that the judgment-debtor had no saleable interest in the
property sold.
92.- (1) Where no application is made under rule 89, rule 90 or rule 91, or where such
application is made and disallowed the Court shall make an order confirming the sale and
thereupon the sale shall become absolute.
(2) Where such application is made and allowed and where in the case of an application
under rule 89 the deposit required by that rule is made within thirty days from the date of
sale the Court shall make an order setting aside the sale:
Provided that no order shall be made unless notice of the application has been given to all
persons affected thereby.
(3) No suit to set aside an order made under this rule shall be brought by any person
against whom such order is made.
93. Where a sale of immovable property is set aside under rule 92 the purchaser shall be
entitled to an order for repayment of his purchase money with or without interest as the
Court may direct against any person to whom it has been paid.
94. Where a sale of immovable property has become absolute the Court shall grant a
certificate specifying the property sold and the name of the person who at the time of sale
is declared to be the purchaser. Such certificate shall bear date the day on which the sale
became absolute.
95. Where the immovable property sold is in the occupancy of the judgment-debtor or of
some person on his behalf or of some person claiming under a title created by the
judgment debtor subsequently to the attachment of such property and a certificate in
respect thereof has been granted under rule 94 the Court shall on the application of the
purchaser order delivery to be made by putting such purchaser or any person whom he
may appoint to receive delivery on his behalf in possession of the property and if need be
by removing any person who refuses to vacate the same.
96. Where the property sold is in the occupancy of a tenant or other person entitled to
occupy the same and a certificate in respect thereof has been granted under rule 94, the
Court shall, on the application of the purchaser order delivery to be made by affixing a
copy of the certificate of sale in some conspicuous place on the property and proclaiming
to the occupant by beat of drum or other customary mode, at some convenient place that
the interest of judgment debtor has been transferred to the purchaser.
Resistance to Delivery of Possession to Decree-holder
Or Purchaser
97.- (1) 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.
(2) The Court shall fix a day for investigating the matter and shall summon the party
against whom the application is made to appear and answer the same.
98. Where 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 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 to be
detained in […..] prison for a term which may extend to thirty days.
99. Where the Court is satisfied that the resistance or obstruction was occasioned by any
person (other than the judgment-debtor) claiming in good faith to be in possession of the
property on his own account or on account of some person other than the judgment-
debtor the Court shall make an order dismissing the application.
100.- (1) Where any person other than the judgment-debtor is dispossessed of immovable
property by the holder of a decree for the 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.
(2) The Court shall fix a day for investigating the matter and shall summon the party
against whom the application is made to appear and answer the same.
101. Where the Court is satisfied that the applicant was in possession of the property on
his own account or on account of some person other than the judgement-debtor it shall
direct that the applicant be put into possession of the property.
102. Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a
decree for the possession of immovable property by a person to whom the judgment
debtor has transferred the property after the institution of the suit in which the decree was
passed or to the dispossession of any such person.
[103. - All questions arising as to title, right or interest in or possession of immovable
property between an applicant under rule 97 and the opposite-party or between an
applicant under rule 100 and the opposite party shall be adjudicated upon and determined
by the Court and no separate suit shall lie for the determination of any such matter.]
Order 21 of the Civil Procedure Code (CPC) in Pakistan outlines the procedures for the execution of decrees. This order is crucial in ensuring the enforcement of judgments passed by civil courts. Let's delve into the key aspects of Order 21 and its significance in the legal framework of Pakistan.
### Decree Execution Process:
Order 21 provides a comprehensive framework for the execution of decrees. After obtaining a decree from a civil court, the decree-holder can initiate the execution process. The order covers various modes of execution, including attachment and sale of property, arrest and detention of judgment debtors, and the delivery of immovable property.
### Attachment and Sale of Property:
One of the primary methods of executing a decree is through the attachment and sale of the judgment debtor's property. Order 21 details the procedure for attachment, proclamation, and sale of the property. The court-appointed officer, usually the Nazir, plays a pivotal role in conducting these proceedings.
### Arrest and Detention:
In certain cases, the CPC allows for the arrest and detention of judgment debtors who fail to comply with the court's orders. Order 21 sets out the conditions and procedures for such arrests, emphasizing the necessity of judicial scrutiny before resorting to this extreme measure.
### Delivery of Immovable Property:
When the decree involves the delivery of possession of immovable property, Order 21 provides a structured process for its enforcement. This includes the issuance of a warrant for possession, removal of any obstruction, and the delivery of possession to the decree-holder.
### Oral Examination of Judgment Debtors:
The order empowers the court to examine judgment debtors orally regarding their assets. This is a crucial step in determining the debtor's financial capability to satisfy the decree. The information obtained during such examinations aids in deciding the most suitable mode of execution.
### Transferrable Decrees:
Order 21 also addresses the transfer of decrees. A decree-holder, with the court's permission, can transfer a decree for execution to another court. This facilitates the convenient enforcement of judgments when the judgment debtor's assets are situated in a different jurisdiction.
### Limitations and Safeguards:
While Order 21 provides effective mechanisms for decree enforcement, it also incorporates safeguards to protect the rights of judgment debtors. The court ensures that the execution process is fair and just, and it has the authority to set aside or modify orders if necessary.
### Conclusion:
Order 21 of the Civil Procedure Code in Pakistan serves as a cornerstone for the execution of decrees, ensuring that the judgments passed by civil courts are not mere pronouncements but actionable decisions. Its provisions offer a systematic and transparent framework, balancing the interests of both decree-holders and judgment debtors. A sound understanding of Order 21 is indispensable for legal practitioners, enabling them to navigate the complexities of decree execution in the civil justice system of Pakistan.
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