The litigation consists of three stages, initiation of litigation,
adjudication of litigation, and implementation of litigation. The last stage of
litigation that is the implementation of litigation is known as an execution.
Once a decree or judgment is passed by the court, it is the obligation of the
person against whom the judgment is passed (judgment-debtor), to give effect to
the decree so as to enable the decree-holder to enjoy the benefits of the
Jurisdiction Of Executing Court
What Is 'Jurisdiction'?
- The expression 'jurisdiction' does not mean the power to do or order the
act impugned, but generally it would import the authority of the judicial
officer to act in the matter. The Court shall be competent to entertain the
proceeding. The competency is legally termed as 'jurisdiction'. The
jurisdiction is of three kinds, namely statutory, pecuniary, and
territorial. Every suit shall be instituted in the Court of the lowest grade
competent to try it, is the decisive rule. (See section 15 CPC)
- The jurisdiction of a court implies its competence to entertain the
dispute and adjudicate upon the same according to law governing the subject
matter of the dispute. In other words, it can also be said that the right of
action available to a party shall be decided by a court of competent
jurisdiction. For this purpose there shall be two conditions to be satisfied
by the party, namely, that the claim made by him is within the territorial
and pecuniary limits of the court; and secondly, that his claim is of civil
nature and is not barred expressly or impliedly by any law.
Kinds of jurisdiction
- Jurisdiction in terms of competence - powers of the court
Meaning, Nature and Scope
The term "execution" is not defined in the CPC. The term "execution" means
implementing or enforcing or giving effect to an order or a judgment passed by
the court of justice. In simple words "execution" means the process of enforcing
or giving effect to the decree or judgment of the court, by compelling the
judgment-debtor to carry out the mandate of the decree or order and enable the
decree-holder to recover the thing granted to him by judgment.
X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X
would be called the decree-holder, Y is the judgment-debtor, and the amount of
Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree
is passed against him. Suppose Y refuses to pay the decretal amount to X, X can
recover the said amount by execution through the judicial process. The
principles governing the execution of a decree or order are given in Section 36
to Section 74 (substantive law) and Order 21 of the code which provides for
Execution proceedings under CrPC
- In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the
provisions of the code relating to the execution of orders and decree and stated
that the Code contains elaborate provisions which deal with all questions
regarding excitability of a decree in all aspects.
- The Court further observed that numerous provisions of Order 21 take
care of various situations providing effective remedies to judgment-debtors,
decree-holders and claimant objectors. In the cases, where provisions are
not capable of giving relief inadequate measures and appropriate time, to an
aggrieved party, then filing a regular suit in the civil court is the
What is a foreign judgment and a foreign decree?
- Section 2 (6) of the CPC defines a foreign judgment as a judgment of a
foreign court. As per section 2(5) of CPC, a foreign court implies a court
which is situated outside India and which is not established or continued by
the authority of the Central Government.
- A foreign decree is defined in Explanation II to section 44A of the CPC
as a decree or judgment of such court and which directs that a sum of money
is payable. However, such sum of money shall not be a sum payable in respect
of taxes or other charges of a like nature or in respect of any penalty or
fine. It should not include an arbitral award, even if such an award is
enforceable as a decree or judgment.
Section 36. Application to orders
- The provisions of this Code relating to the execution of decree
(including provisions relating to payment under a decree) shall, so far as
they are applicable, be deemed to apply to the execution of orders
(including payment an order).
Section 47. Questions to be determined by the Court executing decree
- All questions arising between the parties to the suit in which the
decree was passed, or their representatives, and relating to the execution,
discharge or satisfaction of the decree, shall be determined by the Court
executing the decree and not by a separate suit.
- Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this
section, be determined by the Court.
For the purposes of this section, a plaintiff whose suit has been dismissed and
a defendant against whom a suit has been dismissed are parties to the suit.
- For the purposes of this section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party to the suit in which the
decree is passed;
- all questions relating to the delivery of possession of such property to
such purchaser or his representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of the decree within
the meaning of this section.
Section 49. Transferee
Every transferee of a decree shall hold the same subject to the equities (if
any) which the judgment-debtor might have enforced against the original
Section 50. Legal representative
- Where a judgment-debtor dies before the decree has been fully
satisfied, the holder of the decree may apply to the Court which passed
it to execute the same against the legal representative of the deceased.
- Where the decree is executed against such legal representative, he
shall be liable only to the extent of the property of the deceased which
has come to his hands and has not been duly disposed of; and, for the
purpose of ascertaining such liability, the Court executing the decree
may, of its own motion or on the application of the decree-holder,
compel such legal representative to produce such accounts as it thinks
- It clearly appears from the above discussion, that execution means
implementing or enforcing or giving effect to an order or a judgment passed
by the court of justice. The provisions contained in Order 21 covers
different types of situation and provide effective remedies to the
judgment-debtors, claimant objectors and third parties apart from the
- The Code takes care of the rights of judgment-debtors too. Various modes
of execution of a decree are also provided by the Code which includes
arrest, detention of the judgment-debtor, delivery of possession, attachment
of the property, by sale, partition, the appointment of receiver and payment
of money etc. Thus, the provisions are rendered effective or capable of
giving relief to an aggrieved party.
Award Winning Article Is Written By: Mr.Amit Bhardwaj & Mr.Himanshu Sharma
Authentication No: NV233453378495-30-1122