# needless vexation and hardship caused both to the decree-holder and the judgmentdebtor

- **Citation:** Allahabad High Court #163282
- **Court:** Allahabad High Court
- **Decided:** 1951-09-12
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/needless-vexation-and-hardship-caused-both-to-the-decree-holder-and-the-163282
- **Pages:** 2

## Text

215
reputed to make considerable illicit income out of his post. Whatever his motive, it is
intolerable that the clerk of a court should be in a position to intimidate parties and
pleaders into taking action for which not the remotest necessity exists, and the manifest
object of which is to defeat rules made for the guidance of courts, to say nothing of the
needless vexation and hardship caused both to the decree-holder and the judgmentdebtor.

District Judges should devote special attention to execution cases pending in the
courts directly subordinate to them and take steps to ensure rigid compliance with the
rules. Execution cases should be placed before the presiding judge in open court daily in
the same manner as suits and other causes as they are the most important part of civil
proceedings.
G.L. No. 10/VIII-h-19 dated 12th September, 1951

The file arising out of an execution application should be kept separate and
district from the file arising out of an objection under section 47 or Order XXI, rule 58, of
the Code of Civil Procedure. A separate index and order sheet should be prepared for
every file arising out of an objection as soon as an objection is filed. These files should be
kept separate until the objections are disposed of and should thereafter be stitched to the
main execution file as required by the rules.

If may be said that if the files arising out of such objections are kept separate from
the execution file there is an apprehension of the attached property being sold or the
judgment-debtor being arrested notwithstanding the fact that an objection to such sale or
arrest may not have been disposed of. But there would be no such apprehension if the
files arising out of such objections are kept in charge or the same clerk who deals with
execution files. As further safeguard care must always be taken whenever the execution is
stayed on the filing of an objection to make an entry thereof on the execution file giving
reference to the appropriate file in which such objection is being dealt with.
G.L. No. 1823/35(a)-k(a) dated 7th May, 1915

No application for an order for sale under Order XXI, rule 66(3), of the Code of
Civil Procedure should be entertained unless it is accompanied by a verified statement.

Such statement must be examined to see that the encumbrances are set down so
for as they are known to or can be ascertained by the person making the verification.

In this connection reference is made to rule 165, chapter VI of the General Rules
(Civil), 1957 which lays down that in every case the decree-holder must submit
registration receipt, showing that search has been made at the registration office.

In every case, the decree-holder must make this search at the registration office
and the court should not fall back on the report from the same offices which it calls for
under Order XXI, rule 106 of the Code of Civil Procedure.

If a comparison of the statement submitted by the decree- holder and of the report
received from the registration office reveals any discrepancies, the decree-holder should
be called to account. If he states that he did not see an entry or made a wrong note by
accident, the cost of his inspection at the registration office should be disallowed.
216
G.L. No. 47/167-1 dated 5th January, 1927

The attention of all District Judges and that of all civil courts subordinate to them
is drawn to the provision of Order XXI, rule 69 of the Code of Civil Procedure, under
which it is incumbent on the court to specify the hour as well as the day to which a sale is
adjourned. An omission to do so may amount to a material irregularity, which would
result in the setting aside of the sale.
G.L. No. 6428-167-7(12) dated 13th December, 1927

Delay statements reveal that there is often a great deal of waste of time in the
procedure of sale officers. It is realized that the proceedings must of necessity be lengthy.
But the procedure of sale officers can be improved so as to save trouble both to the
officers themselves and to their clerks. In many cases the proceedings are conducted
piecemeal. For instance, at one time, the decree-holder is called upon to pay process-fees
to summon the judgment-debtor; then he is called to verify something, and then again to
make a deposit. All these preliminary matters could be settled once and for all when the
decree-holder first appears.
G.L. No. 9/167-3(1) dated 20th January, 1929

Parties to civil suits are required to file registered addresses (vide Order VII, rule
19 to 25 of the Code of Civil Procedure) and service at such addresses is considered
sufficient (see rule 22). This rule may also be observed in execution proceedings in
revenue courts.
G.L. No. 7/67-4 dated 11th April, 1931

The attention of all presiding officers of civil courts is invited to the provisions of
Order XLI rule 6(2), of the Code of Civil Procedure, which makes it obligatory for the
executing court to stay the sale on the application of the judgment-debtor ―on such term
as to security or otherwise as the court thinks fit until the appeal is disposed of‖. It has
been observed, however, that when an application is made by judgment-debtor to
executing court, the presiding officer almost invariably refuses to pass orders staying
sale, on the ground that an appeal is pending and that the order must be passed by the
High Court. When the application is made to the High Court after an appeal has been
filed, stay of execution proceedings can only be ordered under Order XLI, rule 5, when it
is necessary for the judgment-debtor to prove that substantial loss may result to him
unless an order of stay is made, i.e.; special circumstances have to be proved by the
judgment-debtor, and the sale is not stayed as a matter of routine even if the security
offered by the judgment-debtor is sufficient. The appellate court is not bound by the
provisions of rule 6(2) like the court which made the order for the sale of immovable
property in execution of a decree.

The result of the executing courts failing to understand the rule or to apply it
properly is that numerous applications are made in the High Court, which is unnecessary,
and judgment-debtors are thereby placed in a much less favourable position than the law
intended that they should be. Therefore, courts executing decree by sale of immovable
property should follow the provisions of Order XLI, rule 6(2), implicitly.