• Execution decree process

Court has already passed final decree stating property belongs to 3 heirs with 1/3rd share and have said that if the shareholders desire they can sell the property or buy each other's share. One of the share holder is not interested in settling. What is the process for filing execution decree for sale of inherited property ?
Also what are the pros and cons ? It seems court will charge money for execution and good chance that price for property will be lower !! Is that true
Asked 1 year ago in Property Law from United States
Religion: Hindu

Dear Sir, I assume that its decree was passed in Indian civil court, if yes, that decree is preliminary decree, you should have to file FDP (final decree proceeding) before same court, you have to pay nominal court fees only (it may within 2000 rs only). The said decree is binding on all of 3, and it distribution seperately respective their share as per said preliminary decree in final decree proceeding and the said share holders they have used as they like as self acquired property... All the best.

C. V. Jadhav
Advocate, Bangalore
540 Answers
16 Consultations

4.7 on 5.0

Firslty, once the order has been by passed in this regard then there will be no need for its execution as all right have been given to each separelty to sell their parts if desire to.

Secondly, execution will only be required if all are not shared the property equal at physical amongst all.

Thirdly, once you get the share separately then each one of you would not need of anyone’s consent as you all are individual owner of your own property/shares.

Sanjay Baniwal
Advocate, South Delhi
4316 Answers
8 Consultations

5.0 on 5.0

Dear querist,

Legally speaking, you can't force any person to sell a joint property, it really needs to be a joint decision. The court orders makes it amply clear that if the shareholders "desire" to sell, so there is no, boundation as such for a person to sell their share. So, you can't go in for execution in this regard.

You are free to sell your share of the property after mutation, but can't force that on the person who is non willing to sell the share.

Regards.

Siddharth Jain
Advocate, New Delhi
4382 Answers
45 Consultations

5.0 on 5.0

Sir in case the final.decree.of court is passed and all parties doensot have physical possession of.there share a execution petition.can be filed before.the same court for.execution.of the said order.

Further after the final decree the parities can hold or sale there share individually and can act as individual owner of property no consent of other owner is required.

Further in execution the property can divided between the share holder other owners cannot be forced to sale the property as in case of immovable property if the property can be equally divided then first it will divided it can be sold in only condition when equal division is not possible. You cannot pray before.court for selling there share in execution if division is possible.

On execution petition very nominal court fee is there that is depending upon state to state. Further the value of property shall be much more higher depending nature and situation of property but it will be much greater then the court fee. Court fee is very nominal in execution.

Shubham Jhajharia
Advocate, Ahmedabad
16364 Answers
66 Consultations

5.0 on 5.0

MAY EXECUTE THE DECREE

The general rules as laid down Under Section 38 of CPC is that, ‘the decree may be executed either by the court, which passed it, or by the court to which it is sent for execution.

The words ‘Court which passed the decree’ needs further ellaboration and the expression includes the following courts

1. The Court which actually passed the decree (Court of first instance)

2. Court of first instance in appellate decree.

3. The court of first instance if it ceases to exist the court which would have jurisdiction to try the suit at the time of execution.

4. Where the court of first instance have ceased to have jurisdiction to execute the decree the court which at the time of execution would have had the jurisdiction to try the suit

if court A passes the decree and thereafter part of the area within the jurisdiction of that court is transferred to court B, the Supreme Court has held that the court which actually passed the decree does not loose Its jurisdiction to execute it by reason of the subject matter being transferred to jurisdiction of another court. The position whether B court can also execute the decree is not very clear because there are conflicting judgements of High Courts on that

point.

Ganesh Kadam
Advocate, Pune
6807 Answers
53 Consultations

4.9 on 5.0

1. The 1/3rd sharer who is not settling cannot be forced to sell his share or buy the shares of the other two

2. It appears that the court has declared that the 3 persons claiming share are the legal heirs and thus entitled to 1/3 share each. The arrangement of any sharer either selling his share to a stranger or to the other two or buying shares of the other two, is only suggestive in nature.

3. What is the reason why the 3rd sharer is refusing to settle? Have the other two sharers approached hin to either sell his share to them or buy off his share from him? Have you tried to figure out his apprehension for not settling?

4. Also what kind of property is it? Is it a flat or some land?

5. You will need to file an execution petition for executing the court decree

6. Normal courts fees will be charged for above petition

7. In case the property is a land, the other two sharers won't find difficultly in selling their respective undivided shares

8. If property is a flat then obviously no one would want to buy only a portion of undivided share in the flat. In such a case the buyer won't be able to use the flat for residing and it can only be held as an investment. In such a case there would either be no buyer or the price offered to buy only a specified share and not the full flat, will be lower

9. Generally if the sale happens through court, the court considers the market value of the property for sale. In many cases the sale price that can be fetched is higher than the market value and there is often a cash dealing involved. This cash dealing can't happen if sale is through court. So in that context the sale price that can be fetched will be lower

10. You must first figure out what is the apprehension and concern of the 3rd sharer and counsel him before proceeding to have the decree executed by court.

Yusuf Rampurawala
Advocate, Mumbai
4051 Answers
17 Consultations

5.0 on 5.0

If the decree is passed this is to be executed by the the tehsil in the individuals name and later on everybody will be free to sale or transfer the property as per his choice. There are nominal charges for this which is based on certain percentage of the Circle rate of the property to be deposited.

Vimlesh Prasad Mishra
Advocate, Lucknow
5021 Answers
12 Consultations

4.9 on 5.0

You may have to first file an execution petition to execute the decree but before that you have to identify your share with proper demarcation through court appointed advocate commissioner.

Once your share of property has been allocated then you can get it registered on your name on the basis of court decree and then sell your property independently.

T Kalaiselvan
Advocate, Vellore
52880 Answers
635 Consultations

5.0 on 5.0

This is response to you:

1. Charge for execution of decree by the court is not something to worry about;

2. If one of the shareholder is not agreeing to the decree passed, you can initiate a contempt proceeding against him;

3. the value of the property can be done by the government authority registrar or the collector's office.

Gowaal Padavi
Advocate, Mumbai
1736 Answers
2 Consultations

5.0 on 5.0

Hello,

Yes if the property becomes a part of litigation then price will lower.

Also the legal heir creating problem has a rightful 1/3rd share in the property and he may use the said part of property as per his will.

You may talk to him in order to settle for his part of share.

Regards

Anilesh Tewari
Advocate, New Delhi
16050 Answers
235 Consultations

5.0 on 5.0

Dear Sir

I assume it is a Decree of Partition passed by the Court. In partition decree, normally the court will divide the property and separate share of each co-sharer and hand over them with independent possession of their share. Only, if the property is of such a nature, wherein division is not possible, then the Court would sell the property and appropriate money among the sharers. However, in such court sale, it is possible for one co-sharer to participate and purchase other shares. It is very true, that in court case, the price of the property will be very low. You can show the court decree to me and i can advise the way forward.

Vivek Mapara
Advocate, Ahmedabad
28 Answers
2 Consultations

5.0 on 5.0

1. The order is " if the shareholders desire they can sell the property or buy each other's share.".

2. So, the word 'desire' entitles the said shareholder to refuse to agree for selling the said property.

3. If the Court has not divided and demarcated the property by metes and bounds, then you shall have to file a partition suit praying for partitioning the said property with metes and bounds.

4.The Court will not sell your property for sure which you shall have to do.

5. You can sell your undivided share of the property to a third party after offering the same to the unwilling shareholder top buy at the same price you are buying and in case of his refusal can register the sale to te third party who will take care of the said unwilling person in due course.

Krishna Kishore Ganguly
Advocate, Kolkata
22069 Answers
572 Consultations

5.0 on 5.0

execution of decree takes time

2) you need obtain certified copy of decree which takes over a year

3) you have to then file an application for execution of decree

4) it may take further period of another 2 years or so

5)you have to pay legal fees for making application for execution of decree

6) legal fees would depend upon lawyer engaged by you

7)bids would be invited for sale of property

8) in the vent third party files an appeal within stipulated period execution proceedings would be stayed pending hearing and final disposal of appeal

Ajay Sethi
Advocate, Mumbai
62786 Answers
3828 Consultations

5.0 on 5.0

application for execution has to be filed at the High court

2) sale would be at price lower than market value of property

3) court charges would be nominal

Ajay Sethi
Advocate, Mumbai
62786 Answers
3828 Consultations

5.0 on 5.0

An execution petition can be filed in the court the court will issue notices to the respimdents. And then court can hear parties and can order execution since there is procedure involved execution can time of 1 to 2 year.

Further in case of sale the court can order.for an auction of the property through a court commissioner the charges of auction are to be bourn by the parties.

If the third party file an appeal on order of court the execution petition cam be stayed by court pending the appeal. The appeal takes time.to dispose of so third party can go for an appeal.

Shubham Jhajharia
Advocate, Ahmedabad
16364 Answers
66 Consultations

5.0 on 5.0

1. First of all you file an execution petition before the court through your lawyer and let the summons reach the other parties, after that the process will take its own time as per law and procedures based on the prevailing circumstances.

2. The relief sought by you as per proper provisions of law will be granted by the court after hearing all the parties necessary to the case.

3. If you are the highest bidder among you three, you may have a chance.

4. No one can predict what others can do, it depends on the practical situation when the case comes before court and the court decides on further action, so first of all file the case and then watch the developments for further course of action in pursuance.

5. You can an appointment with any lawyer of this forum through private consultation and get the further details clarified.

T Kalaiselvan
Advocate, Vellore
52880 Answers
635 Consultations

5.0 on 5.0

1. You shall have to file an execution petition in connection with the said decree. The Court Commissioner shall arrange for the said sell by, inter alia, publishing the sale notice in News Papers and you shall have liberty to submit your bid.

2. There will be bidding and the highest bidder will get the chance to buy the said property.

3. The unwilling party can certainly file an application against the sale planned to be held presently on the ground that the market price is low but such petitions are likely to be rejected.

4. It is to be noted that any third party also ca bid for the property and own it.

Krishna Kishore Ganguly
Advocate, Kolkata
22069 Answers
572 Consultations

5.0 on 5.0

After the judgment attains finality or where there is no stay in the execution by any Appellate or Revisional Court, it is the Court of original jurisdiction which performs this sacred act of implementation of the execution.

Execution court would issue sale proclamation notice and you may buy out the partner's share by offering monetary compensation during bidding process.

The high court judgment ordering sale of property also needs to be analysed before filing for execution.

Feel free to call.

Siddharth Jain
Advocate, New Delhi
4382 Answers
45 Consultations

5.0 on 5.0

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