Procedure in Execution (Section 51-54)

Section 51: Powers of Court to enforce execution.—

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree—

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section];

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied—

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,—

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

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

Explanation.—In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.


Section 52: Enforcement of decree against legal representative.—

(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.


Section 53: Liability of ancestral property.—

For the purposes of Section 50 and Section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.


Section 54: Partition of estate or separation of share.—

Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.


IMPORTANT CASE LAWS

1. Nature and Scope of Section 51 of the Code

Shyam Singh v. Collector, Distt. Hamirpur, 1993 Supp (1) SCC 693: “It has been said the difficulties of a litigant “begin when he has obtained a decree”. It is a matter of common knowledge that far too many obstacles are placed in the way of a decree-holder who seeks to execute his decree against the property of the judgment-debtor. Perhaps because of that there is no statutory provision against a number of execution proceedings continuing concurrently. Section 51 of the Code gives an option to the creditor, of enforcing the decree either against the person or the property of the debtor; and nowhere it has been laid down that execution against the person of the debtor shall not be allowed unless and until the decree-holder has exhausted his remedy against the property….


2. Nature and Scope of Section 53 of the Code

Pannalal v. Naraini, AIR 1952 SC 170: “……Section 53 of the Civil Procedure Code being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his father’s debts. It, however, lays down the procedure to be followed in cases coming under this section and if the son is bound under Hindu law to pay the father’s debts from any ancestral property in his hands — and the section is not limited to property obtained by survivorship alone — the remedy of the decree-holder against such property lies in the execution proceedings and not by way of a separate suit. The son would certainty be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by the executing court under Section 47 of the Civil Procedure Code. This seems to us to be the true scope and the meaning of Section 53 of the Civil Procedure Code………….


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