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Execution of Decree in Civil Court

Execution is the last stage of any civil litigation. There are three stages in litigation:

  1. Institution of litigation.
  2. Adjudication of litigation.
  3. Implementation of litigation.

Implementation of litigation is also known as execution. A decree will come into existence where the civil litigation has been instituted with the presentment of the plaint. The decree means operation or conclusiveness of judgment. Implementation of a decree will be done only when parties have filed an application in that regard.

A decree or order will be executed by the court as facilitative and not an obligation. If a party is not approaching the court, then the court has no obligation to implement it suo motu. A decree will be executed by the court which has passed the judgment. In exceptional circumstances, the judgment will be implemented by another court which is having competency in that regard.

Execution is the medium by which a decree-holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of the judgment.

Execution

The term execution has not been defined in the code. The expression execution means enforcement or implementation or giving an effect to the order or judgment passed by the court of justice[1]. Simply execution means the process for enforcing or giving effect to the judgment of the court.[2]

Execution is the enforcement of decrees and orders by the process of the court, so as to enable the decree-holder to realize the fruits of the decree[3]. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by the judgment, decree or order.

Supreme Court in Ghanshyam Das v. Anant Kumar Sinha[4] dealing with provision of the code relating to execution of decree and orders, stated:
so far as the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21 of the code take care of different situations providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors, as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party inadequate measures and appropriate time, the answer is a regular suit in the civil court.

The remedy under the Civil Procedure Code is of superior judicial quality then what is generally available under other statutes and the judge, being entrusted exclusively with administration of justice, is expected to do better[5]. The Law Commission in its 14th (1958), 27th (1964) & 44th (1973) reports also considered the difficulties realised by the decree-holders after obtaining decree from a competent court of law. It also went into the reasons for unsatisfactory state of affairs and made several recommendations and suggestions.

Courts Which May Execute Decrees

Section 38 of the Code says that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. Section 37 defines the phrase courts which passed a decree while Sections 39 to 45 provide for the transfer for the execution of a decree by the court which passed the decree to another court, lay down conditions for such transfer and also deal with the powers of executing court. Therefore, all this needs to be read together.

A decree may be execute by the court which passed it or by the court to which it is sent for execution[6]. A court which has neither passed a decree, nor a decree is transferred for execution, cannot execute it[7]. Where the court of first instance has ceased to exist or ceased to have jurisdiction to execute the decree, the decree can be executed by court which at the time of making the execution application would have jurisdiction in the matter[8].

Transfer of Decree for Execution: Sections 39-42; Order 21 Rule 3-9

As stated above, a decree may be executed either by the court which passed it or by the court to which it is sent for execution. Section 39 provides for the transfer of a decree by the court which has passed it and lays down the conditions therefor.

As a general rule, the court which passed the decree is primarily the court to execute it, but such court may send the decree for execution to another court either suo motu (of its own motion) or on the application of the decree-holder if any of the following grounds exists:
  1. The judgment-debtor actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such court; or
  2. The judgment-debtor does not have property sufficient to satisfy the decree within the local limits of the jurisdiction of the court which passed the decree but has property within the local limits of the jurisdiction of such other court; or
  3. The decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of such other court; or
  4. The court which passed the decree considers it necessary for any other reason to be recorded in writing that the decree should be executed by such other court.
The provisions of Section 39 are, however, not mandatory and the court has discretion in the matter which will be judicially exercised by it[9]. The decree-holder has no vested or substantive right to get the decree transferred to another court. The right of the decree-holder is to make an application for transfer which is merely a procedural right.

General Principles

With regard to the powers and duties of executing courts, the following fundamental principles should be borne in mind:

  1. As a general rule, territorial jurisdiction is a condition precedent to a court executing a decree, and, therefore, no court can execute a decree in respect of property situate entirely outside its local jurisdiction.
     
  2. An executing court cannot go behind the decree. It must take the decree as it stands and execute it according to its terms. It has no power to vary or modify the terms[10]. It has no power to question its legality or correctness. This is based on the principle that a proceeding to enforce a judgment is collateral to the judgment and therefore, no inquiry into its regularity or correctness can be permitted in such a proceeding.
     
  3. In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its invalidity could be set up wherever and whenever it is sought to be enforced, whether in execution or in collateral proceedings[11]. In such a case, there is no question of going behind the decree, for really in the eye of the law there is no decree at all.
     
  4. Inherent lack of jurisdiction, however, must appear on the face of the Record. Hence, if the decree on the face of it discloses some material on the basis of which the court could have passed the decree, it would be valid. In such a case, the executing court must accept and execute the decree as it stands and cannot go behind it. To allow the executing court to go behind that limit would be to exalt it to the status of a superior court sitting in appeal over the decision of the court which has passed the decree.
     
  5. A decree which is otherwise valid and executable, does not become inexecutable on the death of the decree-holder or of the judgment- debtor and can be executed against his legal representatives.
     
  6. When the terms of a decree are vague or ambiguous, an executing court can construe the decree to ascertain its precise meaning. For this purpose, the executing court may refer not only to the judgment, but also the pleadings of the case[12].
     
  7. An executing court can go into the question of the executability or otherwise of the decree and consider whether, by any subsequent developments, the decree has ceased to be executable according to its terms.
     
  8. A decree which becomes inexecutable by operation of law, may become executable by virtue of a subsequent amendment in the statute and can be executed after such amendment.
     
  9. The executing court has power to mould the relief granted to the plaintiff in accordance with the changed circumstances.
     
  10. The court executing the decree transferred to it has the same powers in executing such decree as if it had been passed by itself.

Who may apply for the execution? Rule 10

The following persons may file an application for execution:
  1. Decree-holder[13].
  2. Legal representative of the decree-holder, if the decree-holder is dead[14].
  3. Representative of the decree-holder.
  4. Any person claiming under the decree-holder.
  5. Transferee of the decree-holder, if the following conditions are satisfied[15]:
    1. The decree must have been transferred by an assignment in writing or by operation of law;
    2. The application for execution must have been made to the court which passed the decree.
    3. Notice and opportunity of hearing must have been given to the transferor and the judgement-debtor in case of assignment by the transfer.
      The object of issuing a notice is to determine once and for all and in the presence of the parties concerned the validity or otherwise of the assignment or transfer[16].
       
  6. One or more of the joint decree-holders, provided the following conditions are fulfilled[17]:
    1. The decree should not have imposed any condition to the contrary;
    2. The application must have been made for the execution of the whole decree and;
    3. The application must have been for the benefit of all the joint decree-holders.

Against whom the execution can be made?

Execution may be taken out against the following persons:
  1. Judgement-debtor[18].
  2. Legal representative of the judgement-debtor, if the judgement-debtor is dead[19].
  3. Representative of or the person claiming under the judgement-debtor[20].
  4. Surety of the judgement-debtor[21].

An application for the execution of the decree may be filed in the court which passed the decree or in the court to which the decree has been transferred for the execution.

Limitation: The limitation period for the execution of a decree is 12 years from the date of the decree. The period of limitation for the execution of a decree for mandatory injunction is 3 years from the date of the decree.

Execution Application and Res Judicata: After the Amendment Act of 1976 issue of Res Judicata is now specifically dealt with as Section 11 with Explanation VII specifically provides that the provisions of res judicata will apply to execution proceedings also.

Mode of Execution

The code lays down various mode of execution. After the decree-holder files an application for execution of decree, the executing court can enforce execution.

A decree may be enforced by delivery of any property specified in the decree, by attachment and sale or by sale without attachment of the property, or by arrest and detention, or by appointing a receiver, or by effecting partition, or any such manner which the nature of relief requires.

Arrest and Detention

One of the modes of executing a decree is arrest and detention of the judgment-debtor in civil imprisonment. Where the decree is for payment of money, it can be executed by arrest and detention of the judgment-debtor.

A judgment-debtor may be arrested at any time on any day in the execution of a decree. After this arrest, he must be brought before the court as soon as practicable. For the purpose of making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling house is in the occupancy of the judgment-debtor and he refuses or prevents access thereto.

No order of detention of the judgment-debtor shall be made where the decretal amount does not exceed Rs.2000. Where the judgment-debtor pays the decretal amount and costs of arrest to the officer, he should be released once. Women, judicial officers, the parties, their pleaders, member of legislative bodies, a judgment-debtor where the decretal amount does not exceed Rs 2,000, this person cannot be arrested and detained in civil imprisonment.

A decree for money cannot be executed by arrest and detention where the judgment-debtor is a woman, or a minor, or a legal representative of a deceased judgment-debtor.

Attachment of Property

A decree may also be executed on the application of the decree-holder by attachment and sale the only sale without attachment of property. The code recognizes the right of the decree-holder to attach the property of the judgment debtor in execution proceeding and lays down the procedure to effect attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deals with the subject of attachment of property.

The code enumerates properties which are liable to be attached and sold in execution of a decree. It also specifies properties which are not liable to be attached or sold. It also prescribes the procedure where the same property is attached in execution of decrees by more than one court. The code also declares that a private alienation of property after attachment is void.

Section 60(1) declares what properties are liable to attachment and sale in execution of a decree, and what properties are exempt therefrom. All saleable property (movable or immovable) belonging to the judgment-debtor or over which or the portion of which he has a disposing power which he may exercise for his own benefit may be attached and sold in execution of a decree against him.

Section 61 deals where the judgment-debtor is an agriculturalist. It states that judgment-debtor is an agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of attachment of agricultural product depends upon the quantum of decretal amount.

Section 63 where two different courts have attached the same property through different decree, then it will be looked, that which court is superior. The value of the property will determine whether further attachment can be done or not.

Percept

Section 46– precept means a command, an order, a writ or a warrant. A percept is an order or direction given by court which passed the decree to a court which would be competent to execute the decree to attach any property belonging to the judgment-debtor.

Section 46 provides that court which passed a decree may, upon an application by the decree-holder, issue a percept to that court within whose jurisdiction the property of the judgment-debtor is lying to attach any property specified in the percept.

A percept seeks to prevent alienation of property of the judgment-debtor not located within the jurisdiction of the court which passed the decree so that interest of the decree-holder is safeguarded and protected.

It is the interim attachment of the property which lies outside the jurisdiction of the court which has passed the order. To protect the interest of the decree holder on his application will issue percept to the court in whose jurisdiction property is situated to attach the property of the judgment-debtor. The interim order for attachment is valid for the period of only 2 months.

Garnishee Order

It is the proceeding by which the decree-holder seeks to reach money or property of the judgment-debtor in the hands of a third party (debtor of judgment-debtor).

Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may require A not to pay money owed by him to B, but instead to pay C, since B owes the said amount to C, who has obtained the order.

Garnishee order is an order passed by a court ordering a garnishee not to pay money to the judgment-debtor because the latter is indebted to the garnisher.

Sale of the Property

A decree may be executed by attachment and sale or sale without attachment of any property. Section 65 to 73 and Rules 64 to 94 of Order 21 deals with the subject relating to the sale of movable and immovable property.

Power of court (Rule64-65): Rule 64: a court may sell the property, which he has taken into custody under an attachment under Order 60. Rule 65: appointment of officer by the court who will be charged to sell the property. Officer will be the representative of the court and will sell the property for execution of decree.

Proclamation of sale (Rule66-67): It is a kind of order or declaration. It operates as a public notice regarding the sale. It's said that people can participate in auction and sale. The proclamation can be in writing or by customary mode.

Contents of the proclamation:

  1. Time and place of sale
  2. Property to be sold
  3. Revenue, if any, assessed upon the property;
  4. Encumbrance, if any, to which property is liable;
  5. Amount to be recovered;
  6. Details relating to property, such as title deed, length etc.
Time of sale: Rule 68 No sale without the consent in writing of the judgment-debtor can take place before fifteen days in case of immovable property and before 7 days in case of movable property from the date of proclamation in the courthouse. A sell can be conducted immediately if the property is of perishable nature.

Adjournment of sale: Rule69 If the judgment-debtor after the issue of proclamation and before sell has paid the amount or has partly promised to pay on the given date before completion of public order, if there is any justified reason, in those circumstances, court has discretionary power to postpone the sell. If it has been postponed for a period of 30 days, the fresh proclamation has to be issued and again the process of Rule 67, 68 and 69 will follow. Sell cannot be postponed where judgment-debtor dies before the date of sell or after the issue of proclamation, or on the date of the auction.

Restriction to bid (Rule72-73): A decree-holder cannot, without the express permission of the court, purchase the property sold in execution of his own decree.

A mortgagee of immovable property cannot, without the leave of the court, purchase the property sold in execution of the decree on the mortgage.

Any officer or other person having any duty to perform in connection with the execution sale cannot either directly or indirectly, acquire or any attempt to acquire any interest in the property sold in execution.

Sale of movable property (Rule78-78): It relates to the sale of agricultural produce and growing crops. Rule 76 covers negotiable instruments and shares. Sale of movable property should be held by public auction. A sale of the movable property will not be said aside on the ground of irregularity in publishing or conducting the sale (Rule 78).

Sale of immovable property (Rule82-94): Rule 83 enables the executing court to postpone sale to enable the judgment-debtor to raise decretal dues by private alienation.

Payment of purchase money by auction-purchaser (Rule84-85): Rule 86 talks about cases of default by auction-purchaser in making requisite payment and resale of the property. Rule 89-91 and 93 deals with setting aside sale and effect thereof. Rules 92-94 provide confirmation of sale and issuance of sale- certificate. Section 65 declares the effect of sale.

Stay of Execution

Provisions for stay of execution of a decree are made in Rule 26 of Order XI. This rule lays down that the executing court shall, on sufficient cause being shown and on the judgement-debtor furnishing security or fulfilling such conditions, as may be imposed on him, stay execution of decree for a reasonable time to enable the judgment-debtor to apply to the court which has passed the decree or to the appellate court for an order to stay execution.

The power to stay is not similar between the court who passed it and to the court the decree is transferred for execution. The transferee court can only stay the execution of decree for a reasonable time to enable the judgement-debtor to apply to the transferor court or to the appellate court to grant stay against the execution but the transferor court can grant the absolute stay against the execution. A transferee court cannot invoke inherent powers to grant stay[22].

There is distinction between staying of an order and quashing of an order. Quashing of an order means that no such order had ever been passed and there is restoration of position as it stood prior to the passing of the order. Stay of order, however, means that the order is very much there, but its operation is stayed.

Stay of Execution of Pending Suit: Rule 29

Rule 29 provides for stay of execution pending suit between the decree-holder and the judgment debtor. It enacts that where a suit by the judgment-debtor is pending in a court against the decree holder such court may, on the judgment debtor furnishing security or otherwise as it thinks fit, stay execution of the decree until the disposal of such suit.

The underlying object of this provision is twofold, (i) to enable the judgment-debtor and the decree holder to adjust their claims against each other; and (ii) to prevent multiplicity of execution proceedings.

For this rule to apply, there must be two simultaneous proceedings in one and the same court:
  1. A proceeding in execution of the decree at the instance of the decree holder against the judgment-debtor; and
  2. a suit at the instance of the judgment debtor against the decree-holder.

For the application of this rule, it is not enough that there is a suit pending by the judgment-debtor. Such suit must be against the decree-holder in such court. The words "such court" are important and would mean that the suit must be pending in the same court."

The provisions of Rule 29 are not peremptory but discretionary. The discretion, however, must be exercised judicially and in the interests of justice and not mechanically and as a matter of course[23]. No hard and fast rule can be laid down in what cases stay would be granted or refused. This rule is based on the principle that a judgment-debtor may not be harassed if he has a substantial claim against the decree-holder which is pending for the decision of the court executing the decree. If the court is of the view that there is some substance in the claim, it may order for the stay of execution filed by the defendant in that case but not otherwise.

While exercising the discretion conferred under Rule 29, the court should duly consider that a party who has obtained a lawful decree is not deprived of the fruits of that decree except for good and cogent reasons. So long as the decree is not set aside by a competent court, it stands good and effective and it should not be lightly dealt with so as to deprive the holder of the lawful decree of its fruits.

A party should not be deprived of the fruits of the decree obtained by him from a competent court merely because a suit has subsequently been filed for setting aside that decree. A decree passed by a competent court should be allowed to be executed and unless a strong case is made out on cogent grounds no stay should be granted.

Even if stay is granted it must be on such terms as to security, etc., so that the earlier decree is not made ineffective due to lapse of time. The discretion of the court under Rule 29[24] has to be exercised with "very great care" and only in "special cases". It cannot be exercised so as to allow a party to abuse the process of law.

Prior to the amendment in the Code in 1976, the jurisdiction to stay execution of a decree vested only in the court which passed the decree. Hence, when the decree was transferred by the court which passed it to another court, the transferee court had no power to stay its execution. By virtue of the amendment of 1976, now the executing court is also competent to stay not only the decree passed by it, but also a decree passed by another court transferred to it for execution.

It is submitted that the following observations of Misra, J, in the case of Judhiatir v. Surendra, lay down correct law on the point:
The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decade except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off chance that another suit to set aside the decree might succeed. The decree must be allowed to be executed, and unless an extraordinary is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms that the earlier decree is not stifled[25].

The proviso has been added by the Amendment Act of 1976. It enacts that if the decree is for payment of money and if the court grants stay without requiring security, it shall record its reasons for doing so.

Order of Injunction and Order of Stay: There is distinction between an order of injunction and an order of stay. The former is an order against a person or an individual restraining him from doing something. The latter is a direction or an order to a court not to do something. Proceedings taken in contravention of injunction order are not null and void being without jurisdiction. The effect of non-compliance of an order of injunction may make the person liable to punishment. Proceedings in contravention of an order of stay, on the other hand are a nullity and of no effect whatsoever.

Conclusion
From the above discussion, it clearly appears that execution is the enforcement of decrees and orders by the process of court, so as to enable the decree-holder to realize the fruits of the decree. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by the judgment, decree or order.

Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and order, take care of the different type of situation and provide effective remedies not only to the decree-holder and judgment-debtors but also to the objectors and third parties.

A decree can be executed by various modes which include delivery of possession, arrest, and detention of the judgment-debtor, attachment of the property, by sale, by appointment of receiver, partition, cross-decrees, and cross-claims, payment of money etc.

On exceptional situation, where provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can file suit in civil court.

End-Notes:
  1. Halsbury's Laws of England (4th ed.) Vol. 17 at p. 232.
  2. Overseas Aviation Engineering, In re, (1962) 3 All ER 12.
  3. State of Rajahan v. Rustamji Savkasha, AIR 1972 Guj. 179.
  4. Ghanshyam Das v. Anant Kumar Sinha, AIR 1991 SC 2251.
  5. Shaukat Hussain v. Bhuneshwari Devi, AIR 1973 SC 528.
  6. Section 38, Code of Civil Procedure, 1908.
  7. Ghantesher v. Madan Mohan, AIR 1997 SC 471.
  8. Merla Ramanna v. Nallaparaju, AIR 1956 SC 87.
  9. Manmatha Pal Choudhury v. Sarada Prosad Nath, AIR 1981 SC 416.
  10. State of Punjab v. Krishan Dayal Sharma, AIR 1990 SC 2177.
  11. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.
  12. Bhavan Vaja v. Solanki Hanuji Khodaji, AIR 1972 SC 1371.
  13. Order XI Rule 10, Code of Civil Procedure, 1908.
  14. Section 146, Code of Civil Procedure, 1908.
  15. Section 49, Order XI Rule 16, Code of Civil Procedure, 1908.
  16. Brajabashi v. Manik Chandra, AIR 1927 Cal. 694.
  17. Order XI Rule 15, Code of Civil Procedure, 1908.
  18. Section 50, Order XI Rule 15, Code of Civil Procedure, 1908.
  19. Section 50, 52 & 53, Code of Civil Procedure, 1908.
  20. Section 146, Code of Civil Procedure, 1908.
  21. Section 145, Code of Civil Procedure, 1908.
  22. Shaukat Hussain v. Bhuneshwari Devi, AIR 1973 SC 528.
  23. Quazi Rahman v. Nurbanu Bibi, AIR 1976 Gau 39.
  24. Order XI Rule 29, Code of Civil Procedure, 1908.
  25. Subhas Kumar Singh v. Sheo Balak Singh, AIR 1975 Pat 307.

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