Code of Civil Procedure, 1908. Act no. V of 1908 [21st March 1908]




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JUDGMENT AND DECREE

33. The Court. after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.



INTEREST

34.-(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.

3[34.A,-(l') Where the Court is of opinion that a suit was instituted with intent to avoid the payment of any public dues payable by the plaintiff or on his behalf, the Court may, while dismissing such suit, make an order for payment of interest on' such public dues at the rate, of two per cent. above the prevailing bank rate.


(2) Where the Court is of opinion that the recovery of any public dues from the plaintiff was unjustified, the Court may, while disposing of the suit, make an order for payment of interest on the amount recovered at the rate of two per cent., about the prevailing bank rate.



Explanation- In this section-

(a) "bank rate" means the bank rate determined and made public under the provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956); and

(b) "public dues" includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government or of any local authority.]

[34.B. Where and in so far as a decree is for payment of money due to a banking company in repayment of a loan advanced by it, the Court shall, in the decree, provide for interest or return, as the case may be, on the judgment debt from the date of decree till payment-

(a) In the case of interest-bearing loans, for interest at the contracted rate or at the rate of two percent above the bank rate, whichever is the higher;

(b) In the case of loans given on the basis of markup in price, lease, hire-purchase or service charges, for the contracted rate of mark-up, rental, hire or service charges, as the case may be, or at the latest rate of the banking company for similar loans, whichever is the higher; and

(c) in the case of loans given on the basis of participation in profit and loss, for return at such rate, not being less than the annual rate of profit for the preceding six months paid by the banking company on term deposits of six months, accepted by it on the basis of participation in profit and loss, as the Court may consider just and reasonable in the circumstances of the case, keeping in view the profit-sharing agreement entered into between the banking company and the judgment-debtor when the loan was contracted.

Explanation.-(1) In this section in clause (a), "bank rate" has the same meaning as in section 34-A].

COSTS

35.-(l) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of an incident to all suits shall be in the discretion of the Court, and the Courts shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.


(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

(3) The Courts may give interest on costs at any rate not exceeding six percent per annum, and such interest shall be added to the Costs and shall be recoverable as such.

[35-A.-(l) If in any suit or other proceeding 2[including an execution proceeding)], not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the. Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding 3[twenty five thousand] rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less;

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, and not being a Court constituted under that Act are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

Provided further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.

(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.]

--------------------


PART II


EXECUTION

GENERAL


36. The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

37. The expression "Court which passed a decree" or words to that effect, shall, in relation to the execution of decrees unless there is anything repugnant in the subject or context, be deemed to include, -

(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the first instance, and

(b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

38. A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

39.-(l) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court;

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the Local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it; or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion it for execution to any subordinate Court of competent Transfer of decree to Court in another Province. Result of execution proceedings to be certified.

40. Where a decree is sent for execution in another Province, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that Province.

41. The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

42.-1[(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed Court in by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner ac if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

(2) Without prejudice to the generality of the foregoing provision, the Court executing a decree sent to it shall have the following powers, namely:-

(a) power under section 39 to transfer the decree to another Court, if necessary;


(b) power under subsection (1) of section 50 to permit execution to proceed against the legal representatives of a deceased judgment-debtor;
(c) power under section 152 to correct clerical or arithmetical errors;
(d) power under rule 16 of Order XXI to recognize the assignment of a decree;
(e) power under sub-rule (2) of rule 50 of Order XXI to grant leave to a decree-holder to proceed against a person not already recognized as a partner in a firm in an execution proceeding against the firm;
(f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of attachment of decree passed by another Court.]

43. Any decree passed by a civil Court established in any 2[area] in 3[Pakistan] to which the provisions relating to execution do not extend [……………..] may, lilt cannot he executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in 5[Pakistan].

44.-[Omitted by Ordinance (27 of 1981), Second Sched., item 46(5)].

5(44.A.-(1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed in 3[Pakistan] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proo1 of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Explanation 1.-"Superior Court" with' reference to the United Kingdom, means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham.

Explanation 2.-'4Reciprocating territory" means 1[the United Kingdom and such other country or territory as] the 3[Central Government) may, from time to time, by notification in the 3[official Gazette], declare [to be reciprocating territory for the purposes of this section; and "superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 3.-."Decree", with reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and

(a) With reference to superior Courts in the United Kingdom, includes judgments given and decrees made in any Court in appeals against , such decrees or judgments, but

(b) In no case includes an arbitration award, even if such award is enforceable as a decree or judgment.]

45. Execution of decrees in foreign territory.-[Omitted by Ordinance (27 of 1981), Second Sched., item 46(5) ].

46.-(l) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.


QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

47.-(l) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.

(3) Where a question arises as to whether any person is or is representative of a party, such question shall, for the purpose of this section, be determined by the Court.

Explanation.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.


LIMIT OF TIME FOR EXECUTION

148....(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of [six] years from.

(a) the date of the decree sought to be executed, or
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed-

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of '[six] years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within [six] years immediately before the date of the application;

or

(b) to limit or otherwise affect the operation of article 2[83 of the First Schedule to the Limitation Act, 1908].


TRANSFER FEES AND LEGAL REPRESENTATIVES:

49. Every transferee of a decree shall bold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-bolder.

50.-(l) Where a judgment-debtor dies before the decree has been fully satisfied;


the holder of the decree may apply to the Court which passed it to execute the same
against the legal Representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duty disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree holder, compel such legal Representative to produce such accounts as it thinks fit.



PROCEDURE IN EXECUTION

51.-Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder order execution of the decree-

(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property ;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require.

[Provided that 2[***] execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied:-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-.

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or

(ii) has, after the institution of the decree was passed, dishonestly transferred, concealed, or removed any part committed any other act of to his property ; or

(b) that the judgment-debtor has, or has had date of the decree, the means to pay the decree or some substantial part thereof or neglects or has refused or neglected same ; or

(c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary
capacity to account.

Explanation - In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which by or under any law or custom having the force of 1~w for the time being in force, is exempt from attachment in execution of the decree].

52.-(l) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains In the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if they decree had been against him personally.

53. For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt, of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

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54. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to '[the '[Government]) or for the separate possession of a share of such as estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.



ARREST AND DETENTION

55.--(l) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court 3[which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year;]

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling house shall be entered after sunset and before sunrise;

Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way present access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which be has reason to believe the judgment-debtor is to be found;

Provided, thirdly, that if the room ii in the actual occupancy of a woman who is not the Judgement debtor and who according to the customs of the country does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest;

Provided fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of

and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him;

(2) The l[Provincial Government] may by notification in the 2[official Gazette], declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the [Provincial Government] in this behalf.

3[(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the decree, but he shall not be liable to be re-arrested under the decree in execution of which he was so detained in prison.]

56. Notwithstanding anything in this Part, the Court the arrest or detention in the 4[* *] prison execution of a decree for the payment of money.

57. [* * * * * * *]

58. Every person detained in prison in execution of decree shall be released from such detention, before the expiry of the period of detention, if-

(a) the amount mentioned in the warrant for his detention is paid to the officer in charge of the prison; or
(b) the decree against him is otherwise fully satisfied; or
(c) the person on whose application he has been detained so requests;

Provided that he shall not be released from such detention without the order of the Court.]


59. [* * * * * * * *]


60. (1) The following property is liable to attachment and sale in execution of a decree, namely, lands houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all 4other saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which. be has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust of him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:-

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as. in accordance with religious usage, cannot be parted with any woman;

(b) tools of artisans arid, where the judgment-debtor is art agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce, or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials ahd the sizes thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and cccupied by him;

(d) books of accounts;

(e) a mere right to sue for damages ;

(f) any right of personal service ;

(g) stipends and gratuities allowed to 2[pensioners of the 3[Government], or payable out of any service family and the costs of the arrest to the officer arresting him, such office shall at once release him.

(h) the wages of labourers and domestic servants, whether payable in money or
in kind;

(l) Salary to the extent of the first hundred rupees and one half the remainder;

Provided that where such salary is the salary of a 6[servant of the State] or a servant of a railway 7* * * or local authority and the whole or any 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 ;]

(j) the pay and allowances of persons to whom the 8[Pakistan Army Act, 1952],


9* * *applies]. [or of persons other than commissioned officers to whom the 1[Pakistan Navy Ordinance, 1961 (XXXV of 1961) applies];

(k) all compulsory deposits and other sums in or derived from any fund to which the


Provident 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;

(l) any allowance forming part of the emoluments of any [servant of the State] or of any servant of a railway 4 * * * or local authority which the [appropriate Government] may by notification in the [official Gazette] declare to be exempt from attachment, and any subsistence grant or allowance made to 7[any such servant] while under suspension; (in) an expectancy of succession by survivorship or other, merely contingent or possible right or interest;

(n) A right to future maintenance;

(o) Any allowance declared by [any Pakistan law] to be exempt from liability to


attachment or sale in execution of a decree; and

(p) Where the judgment debtor is a person liable for the pays merit 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.

[Explanation 1] The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are exempt from attachment or sale whether before or after they are actually payable, [and in the case of salary other than salary of a [servant of the State] or a servant of a railway 1 *** or local authority the attachable portion thereof is exempt from attachment until it is actually payable].

2[Explanation 2.-In clauses (h) and (1), "salary" means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.]

3[Explanation 3 -.40 clause (I) "appropriate Government" means-


(i) As respects any 4[person] in the service of the Government, or any servant [of railway or] cantonment authority or the port authority of a port, the Central Government:

(iii) As respects any other 7[servant of the State] or a servant of any local authority, the Provincial Government].

(2) Nothing in this section shall be deemed-.


to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land,

61. The [Provincial Government] * * may. by general or special order published in the 2fofficial Gazette], declare that such portion of agricultural produce, or of any class of agriculture produce, as may appear to the 10[Provincial Government] to be for the purpose of providing until the next harvest for the due cultivation of the land and for the support judgment-debtor and his family, shall, in the case of all turists or of any class of agriculturist be exempted from to attachment or sale in execution of a decree.

62. (1) No person executing any process under this directing or authorizing seizure
of movable property shall any dw1diling.house after sunset and before sunrise.

(2) No outer-door of a dwelling-house shall be broken open unl~ss such dwelling-house is in the occupancy of the judgment. debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occuo pancy of a woman who, according to the customs of the country does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw ; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose, of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

63.-41) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

64. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.


Explanation: For the purposes of this section, claims enforce under an attachment include claims for the rateable distribution of assets.

65. Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

66. (l) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.


(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner,

67.--{l) The 2[Provincial Government] may by notification in the 4fothcial Gazette], make rules for any local area imposing conditions in respect of the sale of any class of interest in land in executing of decrees for the payment of money, where such interests are so uncertain or undetermined as in the opinion of the 2[Provincial Government], to make it impossible to fix their value.

[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the 2[Provincial Government] may, by notification in the 4[official Gazette] declare such rules to be in force, or may, by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this subsection shall set out the rules so continued or modified]


DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES
AGAINST IMMOVABLE PROPERTY

68. The 2[Provincial Government] may declare by notification in the 4[official Gazette] that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in immovable property, shall be transferred to the Collector.

69. The provisions set forth in the Third Schedule shall apply to all cases in which the execution of a decree has been transferred under the last preceding section.

70. (l) The 2[Provincial Government] may make rules consistent with the aforesaid provisions-

(a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for re-transmitting the decree from the Collector to the Court;

(d) By appointing a receiver; or

(e) In such other manner as the nature of the relief granted may require.

[Provided that 2[***] execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied:-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-.

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or

(ii) has, after the institution of the decree was passed, dishonestly transferred, concealed, or removed any part committed any other act of to his property ; or

(b) that the judgment-debtor has, or has had date of the decree, the means to pay the decree or some substantial part thereof or neglects or has refused or neglected same ; or

(c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary
capacity to account.

Explanation - In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which by or under any law or custom having the force of 1~w for the time being in force, is exempt from attachment in execution of the decree].

52.-(l) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains In the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if they decree had been against him personally.

53. For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt, of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

A
54. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to '[the '[Government]) or for the separate possession of a share of such as estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.



ARREST AND DETENTION

55.--(l) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court 3[which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year;]

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling house shall be entered after sunset and before sunrise;

Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way present access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which be has reason to believe the judgment-debtor is to be found;

Provided, thirdly, that if the room ii in the actual occupancy of a woman who is not the Judgement debtor and who according to the customs of the country does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest;

Provided fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him;

(2) The l[Provincial Government] may by notification in the 2[official Gazette], declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the [Provincial Government] in this behalf.

3[(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the decree, but he shall not be liable to be re-arrested under the decree in execution of which he was so detained in prison.]

61. Notwithstanding anything in this Part, the Court the arrest or detention in the 4[* *] prison execution of a decree for the payment of money.

62. [* * * * * * *]

63. Every person detained in prison in execution of decree shall be released from such detention, before the expiry of the period of detention, if-

(a) the amount mentioned in the warrant for his detention is paid to the officer in charge of the prison; or


(b) the decree against him is otherwise fully satisfied; or
(c) the person on whose application he has been detained so requests;

Provided that he shall not be released from such detention without the order of the Court.]


64. [* * * * * * * *]


65. (1) The following property is liable to attachment and sale in execution of a decree, namely, lands houses or other buildings, goods, money, bank-notes, cheques, bills

of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all 4other saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which. be has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust of him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:-


(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as. in accordance with religious usage, cannot be parted with any woman;

(b) tools of artisans arid, where the judgment-debtor is art agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce, or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials ahd the sizes thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and cccupied by him;

(d) books of accounts;

(e) a mere right to sue for damages ;

(f) any right of personal service ;

(g) stipends and gratuities allowed to 2[pensioners of the 3[Government], or payable out of any service family and the costs of the arrest to the officer arresting him, such office shall at once release him.

(i) the wages of labourers and domestic servants, whether payable in money or
in kind;

(l) Salary to the extent of the first hundred rupees and one half the remainder;

Provided that where such salary is the salary of a 6[servant of the State] or a servant of a railway 7* * * or local authority and the whole or any 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 ;]

(k) the pay and allowances of persons to whom the 8[Pakistan Army Act, 1952],


9* * *applies]. [or of persons other than commissioned officers to whom the 1[Pakistan Navy Ordinance, 1961 (XXXV of 1961) applies];

(k) all compulsory deposits and other sums in or derived from any fund to which the


Provident 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;

(l) any allowance forming part of the emoluments of any [servant of the State] or of any servant of a railway 4 * * * or local authority which the [appropriate Government] may by notification in the [official Gazette] declare to be exempt from attachment, and any subsistence grant or allowance made to 7[any such servant] while under suspension; (in) an expectancy of succession by survivorship or other, merely contingent or possible right or interest;

(n) A right to future maintenance;

(o) Any allowance declared by [any Pakistan law] to be exempt from liability to


attachment or sale in execution of a decree; and

(p) Where the judgment debtor is a person liable for the pays merit 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.

[Explanation 1] The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are exempt from attachment or sale whether before or after they are actually payable, [and in the case of salary other than salary of a [servant of the State] or a servant of a railway 1 *** or local authority the attachable portion thereof is exempt from attachment until it is actually payable].

2[Explanation 2.-In clauses (h) and (1), "salary" means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.]

3[Explanation 3 -.40 clause (I) "appropriate Government" means-


(i) As respects any 4[person] in the service of the Government, or any servant [of railway or] cantonment authority or the port authority of a port, the Central Government:

(iii) As respects any other 7[servant of the State] or a servant of any local authority, the Provincial Government].

(2) Nothing in this section shall be deemed-.


to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land,

61. The [Provincial Government] * * may. by general or special order published in the 2fofficial Gazette], declare that such portion of agricultural produce, or of any class of agriculture produce, as may appear to the 10[Provincial Government] to be for the purpose of providing until the next harvest for the due cultivation of the land and for the support judgment-debtor and his family, shall, in the case of all turists or of any class of agriculturist be exempted from to attachment or sale in execution of a decree.

62. (1) No person executing any process under this directing or authorizing seizure
of movable property shall any dw1diling.house after sunset and before sunrise.

(2) No outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment. debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw ; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose, of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.
63.-41) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

64. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

Explanation: For the purposes of this section, claims enforce under an attachment include claims for the rateable distribution of assets.

65. Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

66. (l) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.


(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner,

67.--{l) The 2[Provincial Government] may by notification in the 4fothcial Gazette], make rules for any local area imposing conditions in respect of the sale of any class of interest in land in executing of decrees for the payment of money, where such interests are so uncertain or undetermined as in the opinion of the 2[Provincial Government], to make it impossible to fix their value.

[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the 2[Provincial Government] may, by notification in the 4[official Gazette] declare such rules to be in force, or may, by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this subsection shall set out the rules so continued or modified]


DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES
AGAINST IMMOVABLE PROPERTY

71. The 2[Provincial Government] may declare by notification in the 4[official Gazette] that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in immovable property, shall be transferred to the Collector.

(3) Nothing in this section affects any right of [the 2[Government].

RESISTANCE TO EXECUTION


[74.-(l) Where the Court is satisfied that the holder of a decree for the possession of property or a purchaser of property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or any other person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree holder or the purchaser, order the judgment-debtor or such other person to undergo simple imprisonment for a term which may extend to thirty days and may further direct that the decree-holder or the purchaser be put into possession of the property.


(2) Notwithstanding anything contained in subsection (1), where a judgment-debtor or my other person resists or obstructs the execution of a decree, the Court may direct the officer in charge of the police-station within whose jurisdiction the judgment-debtor or such other person resides or where the property to which the decree relates is situate to provide, the necessary police assistance for the execution of the decree.]

INCIDENTAL PROCEEDINGS
COMMISSIONS

75.Subjóctto such conditions .and limitations as may. be prescribed the Court may issue a commission-..

(a)to examine any person ;
(b)to make a local investigation;
(c)to examine or adjust accounts; or
(d)to make a partition.

76. (1) A commission for the examination of any person Commiss1on~ may be issued to any Court (not being a High Court) situate in a Province other than Province in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2)Every Court receiving a commission for the examination of any person under subsection (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed in which case the commission shall be returned in terms of such order.

77. In lieu of issuing a commission the Court may issue a Letter of~ letter of request to examine a witness residing at any place not request within [Pakistan].


78.2[Subject to such conditions and limitations as may be prescribed], the provisions as to the execution and return of come by foreign missions for the examination of witnesses shall apply to commission issued by [or at the instance of]

(a)Courts situate beyond the limits of 2[Pakistan and established] or continued by the authority of 3* * * 4[the
Central Government5 * * *], or

(b) * * *

[(c) Courts of any State or country outside Pakistan.]

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