The Code of Civil Procedure 1908 Lecture – 04

Code of Civil Procedure

Institution of Civil Suits

Where to be instituted:

Section 15 of the C P C specifies that every suit shall be instituted in the Court of the lowest grade competent to try it.

How to Institute:

With regard to institution of Civil suit section 27 of the C P C specifies that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

Institution of a Civil Suit:

A Civil suit is instituted with the presentation of plaint by the plaintiff. Plaint is to be submitted to the proper court with proper jurisdiction as per rules in Order 7 of the C P C. Proper Jurisdiction means that firstly the concerned court must have local Jurisdiction of the suit; Secondly, the concerned court must have Jurisdiction of the Suit.

Leading   Case:-  Surendra  Vs. A tabuddin   26   C W N   391

What do you mean by Execution of decree?

The term “Execution” has not been defined in the code. Execution is the enforcement of a decree by a judicial process which enables the decree-holder to realise the fruits of the decree and judgment passed by the competent Court in his favour. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by the judgment, decree or order of the Court. Order XXI of the CPC which is the longest Order provides detailed provisions for making an application for execution and how they are to be entertained, dealt with and decided.

Execution is the enforcement of a decree by a judicial process which enables the decree-holder to realise the fruits of the decree passed by the competent Court in his favour. All proceedings in execution commence with the filing of an application for execution. Such application should be made to the Court who passed the decree or where the decree has been transferred to another Court, to that Court. Once an application for Execution of decree is received by the Court, it will examine whether the application complies with the requirements of Rules (11 to 14). If they complied with, the Court must admit and register the application.

Which Court may Execution a Decree?

Section 38 of the code specifics that a decree may be executed either by the Court who passed it or by the Court to which it is sent for execution. Section 37 defines the expression ‘Court which passed a decree’ while sections 39 to 45 provide for the transfer for execution of a decree by the Court which passed the decree to another Court, lay down conditions for such transfer and also deal with powers of executing Court.

Application for Execution of decree

All proceeding in Execution commence with the filing of an application for Execution. Following persons may file an application for Execution:

  1. Decree- holder
  2. Legal representative of the decree holder
  3. Representative of a person claiming under the decree-holder
  4. Transferee of the decree-holder, in some cases.

Modes of Execution of decree

  1. Sentence and Imprisonment
  2. Death sentence
  3. Life time Imprisonment
  4. Compensation and Damages
  5. Attachment or seal of any property
  6. Specific performance of Contract
  7. Injunction
  8. Declaration
  9. Appointment of  Receiver

10. Arrest and Detention

11. Delivery of any Property12.  Payment of Money

13. Execution of document

14. Endorsement of negotiable instrument

15. Attachment of rent, Mesne profits

16. Payment of coins or currency notes

Properties which are liable for attachment or sale & which are not? [Section 60]

The following properties are liable to attachment and sale in execution of a decree, namely:

  1. Lands
  2. Houses or other buildings
  3. Goods
  4. Money
  5. Banknotes
  6. Cheques
  7. Bills of exchange
  8. Hundis
  9. Promissory notes

10. Government securities

11. Bonds or other securities for money

12. Debts

13. Shares in corporation and

14. All other saleable property movable or immovable

The following properties are not liable to attachment and sale in execution of a decree, namely:

  1. The necessary wearing-apparel
  2. Cooking vessels
  3. Beds and bedding
  4. Personal ornaments
  5. Religious usage
  6. An agriculturist tools of artisans
  7. An agriculturist implements of husbandry and such cattle and seed-grain
  8. Be necessary to enable him to earn his livelihood
  9. An agriculturist houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment)

10. An agriculturist or a labourer or a domestic servant

11. An agriculturist occupied by him

Books of account;

A mere right to sue for damages;

Any right of personal service;

12. Stipends and gratuities allowed to pensioners of the government or payable out of any service family pension fund notified in the Official Gazette by the Government in this behalf, and political pension.

13. The wages of labourers and domestic servants, whether payable in money or in kind.

14. Salary to the extent of the first hundred Taka and one half the remainders. [Provided that where Such salary is the salary of a servant of the Republic or a servant of the Railway of local authority, and the whole of a part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, be finally exempt from attachment in execution of that decree.]

15. The pay and allowances of persons to whom the Army Act, 1952, the Navy Ordinance, 1961, or the Air Force Act, 1953, applies

16. all compulsory deposits and other sums in or derived from any fund to which the Providend Funds Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment

17. any allowance forming part of the emoluments of any servant of the Republic or of any servant of the Railway or local authority which the Government may by be notification in the official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to any such servant while under suspension

18. An expectancy of succession by survivorship or other merely contingent or possible right or interest

19. A right to future maintenance

20. Any allowance declared by any Bangladesh law to be exempt from liability to attachment or sale in execution of a decree; and,

21. Where a judgment-debtor is a person liable for the payment of land-revenue, any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue.

 

 

Continue—————

The Code of Civil Procedure 1908 Lecture-01

The Code of Civil Procedure 1908 Lecture-02

The Code of Civil Procedure 1908 Lecture-03

The Code of Civil Procedure 1908 Lecture-04

The Code of Civil Procedure 1908 Lecture-05

The Code of Civil Procedure 1908 Lecture-06

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