Where a person stands in the capacity of decree-holder in one suit and as judgment-debtor in another suit and decrees are for money ascertained and the persons stand in the same capacity in both the suits the person holding a decree for a higher amount can execute the decree in his favour, after giving credit to the amount payable to the judgment- debtor in the other decree and proceed against him for the balance amount due to him as per Order XXI Rule 8 of CPC.
In such a case the satisfaction of the other decree will be recorded, and part satisfaction of the decree being executed is also recorded to that extent and for the balance alone it is executed.
The same may arise as cross-claims decreed in the same suit i.e. when defendant makes a counter claim in his written statement and pays court fee and a decree is also passed in his favour in regard to counter claim. In such cases also the similar procedure has to be adopted as provided in Order XXI Rule 19 of CPC.
Law does not allow execution against person and property simultaneously, without permission of the court as seen from Order XXI Rule 21 CPC.
ADVERTISEMENTS:
The decree-holder can proceed against the property or the person, but not both, unless permission is obtained from the court to proceed simultaneously.
For obtaining permission he has to apply under Rule 21. It becomes necessary mostly in cases of execution petitions being filed at the fag end of the period of limitation when necessity arises for seeking all the reliefs therein. They may seek for attachment of the movables, immovables as well as proceeding against the judgment-debtor by arrest and committal to Civil Prison.
It may also become necessary when judgement-debtor is trying to remove himself from the jurisdiction of the court and leaving abroad or to a place unknown, so that in future the realisation of the decree may become difficult and already execution is pending against his property. In such cases permission has to be granted by the Court considering the circumstances of each case on its own merits.
Stay by the executing court is provided for under Order XXI Rule 29 of CPC, when it is the court which passed the decree that is executing its decree. As far as the court to which a decree is transferred for execution, Order XXI Rule 26 provides for the same.
ADVERTISEMENTS:
As far as setting aside the ex parte orders are concerned, Order XX-A Rule 105 and 106 provide for the same and Order IX is not applicable to execution petitions or applications.
30 days is the period for filing an application to set aside an ex parte order from the date of service of notice, if the notice is not served, and such applications as per Order XX-A Rule 106 of CPC.
For no other application in execution Section 5 of the Limitation Act is attracted. Any other application filed beyond the time prescribed thereof, have to be rejected as barred by limitation and there is no question of extending the limitation there for.
Normally when the Court is considering an application under Rule 106 seeking to restore an execution petition, a notice should be given to the opposite party before one can restore it. But, there is an exception; viz. the execution petition is dismissed for default in payment of batta. In such cases to restore an execution petition, there is no need to issue any notice to opposite party.