Upgrad LLM

order 21 rule 35 procedure for warrant of possession


good day

pls guide me on procedure for warrant of possession in execution proceedings , it comes under order 21 rule 35.

An  reference would be very helpful

regards

 

 
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Hello sir!

 

The steps to be taken under Order XXI, Rule 35 and 36 of the Code of Civil Procedure, 1908 in the case of delivery of immovable property are as follows:

 

(a) First where a decree is for delivery of immovable property and if such property is in the possession of any person bound by the decree, such person may be called upon to vacate the property so that the possession may be delivered to the person to whom it has been adjudged, or his agent.

 

If he refuses to do so, he may be removed from the property in order to effect such delivery of possession. 

Here the endorsement on the warrant should state that the property was found in the possession of A (naming the person) and that he was one of the persons bound by the decree or held on behalf of one of those persons (naming the persons), that he was required to vacate the property, and that, in his doing so, the person entitled under the decree was put in possession, or that, on his refusal to do so, he was removed from the property, and the person entitled under the decree was put in possession. 

 

(b) Secondly, where a decree is for joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property, and   proclaiming by beat of drum at some convenient place the substance of the decree.

Here the endorsement on the warrant should state on what part of the property the copy of the warrant was affixed, at what place the substance of decree was proclaimed.

 

(c) Thirdly, where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the officers of the Court may (after giving reasonable warning and facility to any woman, not appearing in public according to custom, to withdraw) remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. 

Here the endorsement should describe briefly the action taken, as in paragraph (a) above.

 

(d) Fourthly, if the property is in the occupancy of a tenant or other person entitled to occupy it and not bound by the decree to relinquish such occupancy, a copy of the warrant must be affixed in some conspicuous place on the property, and proclamation made as provided in Order XXI, Rule 36, of the Code. 

Here the endorsement should state that a copy of the warrent had been put up (stating where it was affixed), and that the substance of the decree had been proclaimed . Before issuing a warrant for the delivery of immovable property, the Court should ascertain from the decree-holder, or his agent, the name of the person whom he believes to be in possession of such property, to guide it in selecting the particular mode of delivery suitable to the case. When a decree is passed giving possession of   agricultural land, the date on which possession is to be delivered should always be specified in the decree, and orders passed as to any standing crops that may be on the land. 

If this has not been done in the decree, it should be done in the order which is sent to the Collector by the Court executing the decree. If however, no date is specified in either the decree or the order, and the land of which possession is to be delivered is in the cultivating possession of the judgment-debtor, the Collector should at once refer to the Civil Court for instructions as to whether or not he is to delay execution of the decree, until any crop which may have been sown by the judgment-debtor and is standing on the land, has been removed.

 

Hope this helps :)

Regards,

Garima

 
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Thanks alot . appreciate your help

Regards

Umesh


Total likes : 1 times

 
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