PROCEDURE IN EXECUTION

PROCEDURE IN EXECUTION: Section 51 to 54 talks about procedure in execution or mode for execution:  Section 51: this section gives the power to court to enforce the decree in general. This section defines the jurisdiction and power of the court to enforce execution. Application for execution of decree under this section may be either oral (order 21 rule 10) or written (order 21, rule 11). Party has to choose the mode of implementation of decree. Court may execute decree as per the choice prayed by the decree-holder or as court may thinks fit.  Mode of executing decree under section 51: (a) By delivery of any property specifically decreed. Property may be movable or immovable (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. (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).  Section 52 deals with a case where the decree is passed against the legal representative of the judgement-debtor.  Section 52 (1) empowers a creditor to execute his decree against the property of deceased in the hands of legal representative so long as it remains in his hand. For application of this clause the decree should have passed against the party as the legal representative of the deceased person, and it should be for the payment of money out of the property of the deceased.  Section 52 (2) empowers a creditor to execute his decree against the legal representative personally if he fails to accounts for the properties received by him from deceased person.  Exception to section 52: 1. Court can implement the decree against the personal property of the legal representative provided if he is avoiding, neglecting or evading to make the payment from the property of deceased. 2. Where he has misutilized the property of deceased and where the legal representative has alienated the property of the deceased person.  Section 53: Liability of ancestral property. No legal representative should be held personally accountable where the suit has been filed against a joint Hindu family unless he has received some property of joint Hindu family. Under pious obligation if has received the property of joint Hindu family then will be held liable. Where the decree has been passed against Karta, no execution be made against the son under pious obligation if the decree is passed after partition. Event after partition a son can be held liable if suit was pending before partition. The son will be held accountable if after the death of Karta the decree has been executed and son has distributed the property of Karta among themselves. The member of joint Hindu family will be held liable if Karta has taken debt for moral purpose or family purpose. The nature of suits determines how decree should be implemented. Illustration: a promissory note has been executed by the father for the purpose of borrowing money. After the death of father the creditor instituted proceeding against son. Where suit is filed basing on promissory note first it will be seen that whether suit is maintainable or not- if it is filed within three year then the suit will be maintainable. General rule is that son will be held liable if they have received ancestral property. Where the son is not having knowledge about execution of promissory note, in such case will not be held liable even though has received the ancestral property.  Section 54: Partition of estate or separation of share. Section 54 comes into play when a decree has been passed for partition, or for the separate possession of a share of an undivided state paying revenue to the government, that is the partition of the state or share will be made by the collector. However if the collector refuses to make the partition of the revenue paying property, the civil court can do so. To attract the provision of this section it is not necessary that the plaintiff should ask for the division of government revenue. Section 54 deals with a case where though the civil court has the power to pass a decree yet it is not competent to execute the same. Under this section the execution of decree shall be made by collector.