Can one of joint d hr , file execution?
Querist :
Anonymous
(Querist) 17 February 2024
This query is : Resolved
Can one out of two ( joint) Decree holder in a money suit case, file for execution?
In a money suit case, Sr Civil Judge, passed a decree in favour of 2 persons jointly who had filed case.
Now one of the two DHr, has filed a case for execution of the decree. Is this case, maintainable and court can proceed with execution or not?
T. Kalaiselvan, Advocate
(Expert) 17 February 2024
In case of joint decree holders one or more of them can also file execution petition with the permission of the court and the court is to make such orders as are required to protect the interests other decree holders who has not joined in executing the decree.
Others who can execute a decree are
the persons to whom a decree was transferred by agreement or operation of law
like legal representatives.
Order 21 of civil procedure Code exclusively deals with
execution and is a self contained code.
Querist :
Anonymous
(Querist) 18 February 2024
Thank you, Mr Kalaiselvan. Do you mean to say, any specific permission is needed by D Hr, to file execution case alone? If yes, when such permission is needed, at the stage of filing the execution petition or later on, at the stage of hearing of the case, when the J Dr files a showcause, objecting the maintainability of the case?
BHARTI KOTHARI
(Expert) 18 February 2024
yes it can be filled but in the application the applicant has make averment that he is entitled to make execution application on behalf of other decree holder and indemnifies the judgement debtor to the extent
T. Kalaiselvan, Advocate
(Expert) 18 February 2024
You are welcome for your appreciations.
Your understanding is correct.
Querist :
Anonymous
(Querist) 18 February 2024
🙏🙏 appreciate you. Sir, please clarify, when can D Hr seek permission from Court, at the time of filing the case or at the stage of hearing of show cause filed by J Dr?
In my case, one of the 2 D Hr, has filed execution case in 2004-05, and the case was stayed by High Court, till disposal. But, after SC ruling, that a stay by HC stands cancelled after 6 months, this execution proceedings has resumed. The D Hr has not filed for any exemption to persue execution case singly. In my showcause, my Adv. has raised this issue.
Now, 2 things need your opinion, 1st can the lower court proceed with the hearing, vacating the HC stay?
2. Is this case maintainable, as no such permission us sought by any of the D Hr?
T. Kalaiselvan, Advocate
(Expert) 18 February 2024
If the stay vacate order has not been passed by High court, then it is not automatic vacate.
It can be considered as pending before high court hence the execution court may not proceed with the conduct of the execution proceedings.
Querist :
Anonymous
(Querist) 18 February 2024
Thanks T Kalaiselvan. But the lower court is tempted to proceed as the D Hr is an advocate practicing and influencing the court and entire judiciary machinery. We are contemplating moving the case to other court in the same district or may be the neighbouring district.
T. Kalaiselvan, Advocate
(Expert) 22 February 2024
Please remember that all are common before law.
It will be your wrong notion that since the decree holder is an advocate hence he will try to influence court for a decision in his favour.
It is not so, the court will pass orders as per law and the aggrieved person can prefer an appeal, his rights for appeal cannot be denied.
Querist :
Anonymous
(Querist) 22 February 2024
Thanks again, You are speaking of law and book, but life is as it is. A case of tenant and landlord is ordered on basis of fake carbon copy of money receipt and municipality holding receipt (showing him as assesse ), without ownership documents of land. The land stands recorded in the name of an unconnected, different community person, in tahsil records. The plaint does not carry proper schedule, map, size of the shop premises. The lawyers of the city excuse themselves, citing reasons that they wont contest against a local bar member. The lawyer who is ready to contest from our side, extorts abnormal fees from us.
Justice in court is normally, not for weaker and poorer, is proven times and again.
