Can you stop execution?
You can stop execution by Objection proceedings under Order 22 rule 50 . Where property is attached the attachment may be objected to through objection proceedings. Any person who is entitled to have any legal or equitable interest in the property to be attached may at any time before sale or paying out of the proceedings of the sale object in writing to the court.
Where judgement has been entered against a JD and a decree has been issued and a decree holder has applied for execution and property has been attached, there is provision for objection to the attachment, the grounds are usually that the property does not belong to the JD but to a third party, usually the commonest of objections are made by the spouses.
Order 22 Rule 51
Any person claiming to have legal interest in any property attached in execution of a decree may at any time give notice of his objection to attachment of the property. Briefly set the nature of claim, how one relates to the property.
Stay of execution is no longer automatic on the lodging of the notice and to expedite objection proceedings the notice must be lodged together with application and supporting affidavit which must be served within seven days on all the parties. The court on receipt of the notice and application is empowered to order stay but not for more than 14 days. The attaching creditor is to be notified to intimate whether he intends to proceed within 7 days. If he intends to proceed the intimation is likewise to be accompanied by a replying affidavit and the application is to be dealt with expeditiously. These provisions are meant to expedite the objection proceedings and to prevent abuse of the process of court normally associated with the said proceedings.
Where there is a family property, or a body corporate and the JD is a director, the company has a right to object to the attachment that the property belongs to the company “Salmon v Salmon” principle the property belongs to the company, the property can therefore not be attached. It is made easier for the company to object on its own through another advocate to avoid conflict of interest. The court will call upon the decree holder upon receipt of notice, order stay of execution, prepare a notice which goes to decree holder requiring decree holder to indicate whether he still wishes to proceed with attachment, then the decree holder should communicate to court if he still wishes to proceed. If the decree states that he does not wish to proceed with execution, the court will order that the attachment may be raised and make orders as to costs as it may deem fit. The question of costs is on who bears the costs since there is a third company i.e. the company, the court must then make an order as to costs. If it appears to have been wrongful attachment, the costs payable to objector are to be paid by decree holder.
Where the decree holder wishes to continue with execution and attachment, the court will issue notice to objector directing objector to take out notice to establish his claim within 10 days. This is by way of Chamber Summons establishing a suit in which the decree has been issued for execution, the application should establish claim by objector. It is served on decree holder and any other party the court may direct to believe but the court can also direct that it may be served on the JD. If the objector fails to file proceedings within time allowed by the court, then the objection will deemed to have been weak and attachment and execution will proceed.
If the objector files the application and the objector has evidence to adduce to the effect that decree holder is not entitled to order for lifting attachment, they may be allowed to file affidavits, if the court feels that there are matters in the affidavit that ought to be proved it will order oral evidence to be adduced before making a final order. If the objection is rejected, the decree holder will be allowed to proceed with the attachment and execution. If the objection is proved the court will order release of the property to the Objector and make an order as to costs. The costs of the objector must be provided for where the objector has succeeded.
Another situation is where property of the Judgment Debtor is in the hands of the 3rd party.
Where judgement has been entered against a JD and a decree has been issued and a decree holder has applied for execution and property has been attached, there is provision for objection to the attachment, the grounds are usually that the property does not belong to the JD but to a third party, usually the commonest of objections are made by the spouses.
Order 22 Rule 51
Any person claiming to have legal interest in any property attached in execution of a decree may at any time give notice of his objection to attachment of the property. Briefly set the nature of claim, how one relates to the property.
Stay of execution is no longer automatic on the lodging of the notice and to expedite objection proceedings the notice must be lodged together with application and supporting affidavit which must be served within seven days on all the parties. The court on receipt of the notice and application is empowered to order stay but not for more than 14 days. The attaching creditor is to be notified to intimate whether he intends to proceed within 7 days. If he intends to proceed the intimation is likewise to be accompanied by a replying affidavit and the application is to be dealt with expeditiously. These provisions are meant to expedite the objection proceedings and to prevent abuse of the process of court normally associated with the said proceedings.
Where there is a family property, or a body corporate and the JD is a director, the company has a right to object to the attachment that the property belongs to the company “Salmon v Salmon” principle the property belongs to the company, the property can therefore not be attached. It is made easier for the company to object on its own through another advocate to avoid conflict of interest. The court will call upon the decree holder upon receipt of notice, order stay of execution, prepare a notice which goes to decree holder requiring decree holder to indicate whether he still wishes to proceed with attachment, then the decree holder should communicate to court if he still wishes to proceed. If the decree states that he does not wish to proceed with execution, the court will order that the attachment may be raised and make orders as to costs as it may deem fit. The question of costs is on who bears the costs since there is a third company i.e. the company, the court must then make an order as to costs. If it appears to have been wrongful attachment, the costs payable to objector are to be paid by decree holder.
Where the decree holder wishes to continue with execution and attachment, the court will issue notice to objector directing objector to take out notice to establish his claim within 10 days. This is by way of Chamber Summons establishing a suit in which the decree has been issued for execution, the application should establish claim by objector. It is served on decree holder and any other party the court may direct to believe but the court can also direct that it may be served on the JD. If the objector fails to file proceedings within time allowed by the court, then the objection will deemed to have been weak and attachment and execution will proceed.
If the objector files the application and the objector has evidence to adduce to the effect that decree holder is not entitled to order for lifting attachment, they may be allowed to file affidavits, if the court feels that there are matters in the affidavit that ought to be proved it will order oral evidence to be adduced before making a final order. If the objection is rejected, the decree holder will be allowed to proceed with the attachment and execution. If the objection is proved the court will order release of the property to the Objector and make an order as to costs. The costs of the objector must be provided for where the objector has succeeded.
Another situation is where property of the Judgment Debtor is in the hands of the 3rd party.
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