While execution of a decree there comes the process of delivery of property in cases of suits where in the matter in issue is related to the property itself. In those cases there is also a requirement of uniform procedure to be followed in terms of delivery of property. Order XXI provides for the delivery of property under the Code of Civil procedure, 1908. Along with ascertaining the modes of delivery depending upon their kinds, it is also essential to understand the procedure in case of resistance to delivery of possession.
While dealing with the delivery of movable property, the bare language of Rule 79 provides that where the property sold is movable property of which actual seizure has been made it shall be delivered to the purchaser. Where the property sold is movable property in the possession of some person other than the judgment debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser. Where the property sold is a debt not secured by a negotiable instrument, or is a share in a corporation, the delivery thereof shall be made by a written Order of the court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, or prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.
While in case of transfer of negotiable instruments and shares, it is provided that Where the execution of a document or endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is required to transfer such negotiable instrument or a share, the Judge or such officer as he may appoint in this behalf may execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by the party.[1]In the case of any movable property not hereinbefore provided for, the court may make an Order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.[2]
In case of immovable property, if it is sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, it is the duty of the court with the contingency fulfilled that on the application of the purchaser, the order shall order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and even remove any person who refuses to vacate the same property if it is needed under Rule 95.
Lastly, where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, it is mandatory for the court with the reception of the application of the purchaser to order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and at the same time proclaiming to the occupant by beat of drum or other customary mode at some convenient place, that the interest of the judgment debtor has been transferred to the purchaser, which also has an element of peculiarity in this regard.[3]
There can also be a situation wherein there arises a resistance to delivery of possession to the decree holders. Rule 97 and 99 provides that a decree holder or an auction purchaser or even any other person other than judgement debtor can complaint to the court if such resistance is made by any person in the process of delivery of property provided that such complaint must be made by an application. If everything goes right and the procedure is dealt with carefully, the court would proceed to adjudicate upon the application in accordance with the rules prescribed under Rule 101 which provides that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application, and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
However the court on hearing such application has power to even set aside or pass an ex parte order on default of appearance of parties which may be set aside in case a sufficient cause is shown.[4] Otherwise the Court can make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application or make any other order as the court may deem fit.[5]
Therefore the provision contained in the Code of Civil Procedure amply provides for relevant provisions in case of the delivery of property which should be meted out for the proper execution of decree in case of suits relating to property both movable and immovable which signifies that the process of courts rather the duty of courts does not end with delivery of judgement and passing of decree but until that decree is executed. This is therefore in consonance with the observation of principle that not only must justice be done, it must also be seen to be done.[6]
References:
[1] Order XXI Rule 80
[2] Order XXI Rule 81
[3] Order XXI Rule 96
[4] Order XXI Rule 105
[5] Order XXI Rule 100
[6] The King v. Sussex Justices. Ex parte McCathy (1924) KB 256
