CPC Assignment
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karanvirmander77CPC Assignment
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karanvirmander77Delivery of Property and Resistance
to Delivery of Possession under the
Code of Civil Procedure, 1908
Introduction
The enforcement of civil decrees, particularly those involving the
delivery of property, plays a crucial role in maintaining the rule of
law and upholding judgments of courts. Order XXI of the Code of
Civil Procedure, 1908 (CPC), codi es the procedures relating to
execution.
Rules 79–81 and 95–96 govern the method and manner of
delivering property.
Rules 97–103 deal with instances where there is resistance or
obstruction in handing over possession. The rules strive to ensure
both effective execution and protection of legitimate possessory
and proprietary rights.
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Delivery of Movable Property: Rules 79–81
Rule 79 – Delivery of Movable Property, Debts, and
Shares
Rule 79 categorizes movable property into three forms for
delivery purposes:
• Actual Seizure: Where movable property is physically
seized, delivery is made by handing over the possession to
the purchaser (Rule 79(1)).
• Property with Third Party: If movable property is in
possession of someone other than the judgment-debtor,
delivery is made through a prohibitory notice, forbidding
transfer to anyone except the purchaser (Rule 79(2)).
• Debts and Shares: Delivery of unsecured debts or shares in
corporations is executed by a court order directing:
◦ Creditors not to accept payments except from the
purchaser.
◦ Debtors not to make payments except to the purchaser.
◦ Company of cials not to allow share transfers or
payment of dividends to anyone but the purchaser (Rule
79(3)).
This framework ensures that even intangible or indirectly held
assets can be effectively transferred.
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Rule 80 – Transfer of Negotiable Instruments and
Shares
Rule 80 supplements Rule 79 by providing mechanisms for the
transfer of negotiable instruments or shares where endorsement or
execution is required:
• Courts may endorse documents on behalf of unwilling
parties.
• Endorsements are legally equivalent to those made by the
original party.
• The court may appoint a receiver for any interest or dividend
due until the formal transfer is completed.
This avoids delays and prevents judgment-debtors from frustrating
execution.
Rule 81 – Vesting Order for Other Movable Property
Rule 81 operates as a residuary provision for movable property
not speci cally covered. The Court can vest such property in the
purchaser through a vesting order, effectively transferring
ownership and possession.
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Delivery of Immovable Property: Rules 95–96
Rule 95 – Property in Occupancy of Judgment-Debtor
Rule 95 addresses the delivery of immovable property in three
scenarios:
• Occupancy by the judgment-debtor.
• Occupancy by someone on behalf of the judgment-debtor.
• Occupancy by a person under a title created post-attachment.
Once the sale certi cate under Rule 94 is issued, the court, upon
the purchaser’s application, orders delivery through symbolic or
actual possession, using force if necessary.
Rule 96 – Property in Occupancy of Tenant or Lawful
Occupant
When the occupant is a tenant or person lawfully entitled to
remain, actual removal is not permitted. Instead, delivery is
effected by:
• Af xing the sale certi cate at a conspicuous place on the
property.
• Proclaiming the transfer through customary means like
beating of drums.
This balances the rights of bona de occupants with that of
auction purchasers.
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Resistance to Delivery of Possession: Rules 97–
103
Rule 97 – Application against Resistance or Obstruction
This rule empowers decree-holders or auction purchasers to le an
application in case of resistance or obstruction in gaining
possession. Such resistance may come from:
• The judgment-debtor.
• Third parties acting on their behalf.
• Any person unlawfully occupying the property.
Rule 98 – Orders after Adjudication
Post-hearing, the court may:
• Order possession to the applicant.
• Dismiss the application.
• Pass such other orders as deemed t.
Importantly, if resistance is found to be without just cause,
particularly by the judgment-debtor or anyone acting on his
behalf, civil imprisonment for up to 30 days may be imposed.
Rule 99 – Complaint of Dispossession
Rule 99 protects third parties who are unlawfully dispossessed by
decree-holders or auction purchasers. The aggrieved person may
apply to the court to seek restitution.
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Rule 100 – Order on Dispossession Application
Based on adjudication under Rule 101, the court can:
• Restore possession to the applicant.
• Dismiss the application.
Rule 101 – Questions to be Determined
This provision authorizes the execution court to decide all
questions relating to right, title, or interest of the parties
involved in Rule 97 or 99 proceedings. No separate civil suit is
needed.
This ensures speedy resolution and discourages multiplicity of
proceedings.
Rule 102 – Transferees Pendente Lite
No relief under Rules 98 or 100 is available to transferees
pendente lite, i.e., persons to whom the judgment-debtor
transferred property during the pendency of the suit or execution.
This discourages fraudulent or collusive transfers.
Rule 103 – Orders to be Deemed as Decrees
Orders passed under Rules 98 or 100 are deemed to be decrees,
and are appealable accordingly. This gives the orders the nality
and enforceability of a decree.
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Judicial Interpretation
The Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad
Jaiswal [(1997) 3 SCC 694] clari ed that resistance by a third
party must be decided within execution proceedings under Rule
101. The court also emphasized the summary yet judicial nature
of such adjudication.
Conclusion
Rules 79–81 and 95–96 provide a robust mechanism for ensuring
delivery of movable and immovable properties, whereas Rules
97–103 ensure that such delivery is not hindered by unlawful
resistance or obstruction. The framework:
• Ensures effective enforcement of decrees.
• Protects bona de rights of third parties.
• Provides remedies against unlawful dispossession.
• Reduces multiplicity of litigation through summary
adjudication.
These provisions re ect a comprehensive and balanced approach
to the challenges of decree execution in property matters under the
CPC.
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Bibliography
1. The Code of Civil Procedure, 1908
2. Mulla, The Code of Civil Procedure
3. C.K. Thakker, Civil Procedure Code
4. Relevant High Court judgments interpreting execution
proceedings
