INDEX

1. INAGURATION 2
2. EXECUTION OF DECREE 2
3. COURT COMPETENT TO EXECUTE DECREE 3
4. WHO MAY FILE AN APPLICATION FOR EXECUTION 3
5. FORM AND CONTENT OF APPLICATION 3
6. LIMITATION PERIOD OF EXECUTION 4
7. PERIOD OF PENDENCY 4
8. STAY OF EXECUTION 4
9. POWER OF EXECUTING COURTS 5
9.1 DELIVERY OF PROPERTY 6
9.2 ATTACHMENT AND SALE OF PROPERTY 7
9.3 ARRSEST AND DETENTION 9
9.4 APPOINTMENT OF RECEVIER 10
9.5 OTHER MANNER AS MAY REQUIRED 10
10. ENDING 11
11. SUPPORTIVE SOURCES 12

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1. INAGURATION
Execution is the last stage of any civil litigation. There are three stages in litigation: (i)
Institution of litigation, (ii) Adjudication of litigation, (iii) Implementation of litigation.

Implementation of litigation is also known as execution. Where the civil litigation has been
instituted with the presentment of the plaint, a decree will come into existence. The decree
means operation or conclusiveness of judgment. Execution 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. The execution is complete when the judgment-creditor or decree-
holder gets money or other thing awarded to him by judgment, decree or order.1

2. EXECUTION OF DECREE
The Law relating to execution of decrees is to be found in Sections 36 to 74 and Order XXI
of the Code of Civil Procedure 1908. 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. 2 Simply “execution” means the process for
enforcing or giving effect to the judgment of the court. 3 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.4 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.

All proceedings in execution commence with the filing of an application for execution. Such
application should be made to the Court who passed the decree or where the decree has been
transferred to another Court, to that Court. Once an application for Execution of decree is
received by the Court, it will examine whether the application complies with the requirements
of Rules (11 to 14). If they complied with, the Court must admit and register the application.

Now, I will discuss about laws and rules regarding execution of decree embodied in the Code
of Civil Procedure 1908 in briefly.

1
Takwani, C.K., “Civil Procedure with Limitation Act, 1963.” 8 th Edition. Eastern Book Company. Pg. 615.
2
Halsbury’s Laws of England (4thedn.) Vol. 17 at pg.232
3
A.K Ghose v. R.K Banerjee, 79 CWN 76.
4
Sreenath Roy v. Radhanath Mookerjee (1882)

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3. COURT COMPETENT TO EXECUTE DECREE:
Section 38 of the code specifics that a decree may be executed either by the Court who
passed it or by the Court to which it is sent for execution. Section 37 defines the expression
‘Court which passed a decree’ while sections 39 to 45 provide for the transfer for execution
of a decree by the Court which passed the decree to another Court, lay down conditions for
such transfer and also deal with powers of executing Court.

4. WHO MAY FILE AN APPLICATION FOR EXECUTION

All proceeding in Execution commence with the filing of an application for Execution.
Following persons may file an application for Execution:

1. Decree-holder5
2. Legal representative of the decree-holder, if the decree-holder is dead.6
3. Representative of the decree-holder.7
4. Any person claiming under the decree-holder.8
5. Transferee of decree-holder, if the following conditions are satisfied:9
a) The decree must have been transferred by an assignment in writing or by
operation of law.
b) The application for execution must have been made to the court which passed the
decree.
c) Notice and opportunity of hearing must have been given to the transferor and the
judgment-debtor in case of assignment by transfer.

6. One or more of the joint decree-holders, provided the following conditions are
fulfilled.10
a) The decree should not have imposed any condition to the contrary.
b) The application must have been made for the execution of whole decree.
c) The application must have been made for the benefit of all joint holders.

7. Any person having special interest.

5. FORM AND CONTENT OF APPLICATION

An Application for execution must be in writing except when an oral application is made
under Order XXI, Rule 11(1). Upon an application for execution being filed, the Court shall

5
Rule 10 Order XXI of the CPC 1908.
6
Section 146 of the CPC 1908.
7
Section 146 of the CPC 1908.
8
Section 146 of the CPC 1908.
9
Section 49 and Rule 16 Order XXI of the CPC 1908.
10
Rule 15 Order XXI of the CPC 1908.

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scrutinize it to see that all the requirements of Order XXI, Rules 11(2), 12, 13, and 14 of the
Code of Civil Procedure, 1908, have been duly complied with. The application should state
distinctly the mode in which the assistance of the Court is sought and the proceedings should
be confined to that mode, unless any amendment has been allowed. When an application is
for the attachment of immovable property, special care shall be taken that the specification
and verification required by Order XXI, Rule 13, of the Code have been furnished. The Court
may also require the applicant to produce the authenticated extract mentioned in Order XXI,
Rule, 14 when the property is land registered in the Collector‟s office.

6. LIMITATION PERIOD OF EXECUTION

The period of limitation for the execution of a decree (other than a decree granting a
mandatory injunction) is twelve years from the date of the decree.11

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

7. PERIOD OF PENDENCY
Execution Proceedings, will for statistical purposes, be considered as only pending for the
period during which something is being done towards execution. If the decree-holder has
realized his instalment, or obtained the satisfaction asked for in the application for execution,
the case should be struck off, even though a portion of the decree still remains unexecuted.
Similarly, the case should be dismissed if the applicant for execution does not take necessary
steps to prosecute his application. The Court should record its reasons for the action taken in
such cases.

8. STAY OF EXECUTION
Provisions for stay of execution of a decree are made in Rule 26 of Order 21. This rule lays
down that the executing court shall, on sufficient cause being shown and on the judgment-
debtor furnishing security or fulfilling such conditions, as may be imposed on him, stay of
execution of a 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 execution can be stayed by the Court of first instance i.e. the original court which passed
the decree in the first place. It has got absolute power to stay the execution of the order or the
decree. The provisions regarding such stay are enlisted in Order 41 Rule 5 of the Civil
Procedure Code, 1908. Stay of execution is granted if the party can prove substantial loss if

11
Article 136 of Limitation Act 1963.
12
Article 133 of Limitation Act 1963.

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such order is not made. The stay can also be granted if an appeal has been filed against the
original decree, in the appellate court of competent jurisdiction. Though the transferee court
is bound by an order made by the court which passed the decree or by an appellate court in
relation to execution of such decree13, there are also provisions for grant of stay by the
transferee court in cases where the execution proceedings have been transferred to another
court. Many times situations such arises that the parties reside in different places and the
execution has to be carried out at some place other than the place of the court passing the
decree. In such cases, the original court passing the decree may transfer such cases for
execution to the required courts where the decree may be executed. The Transferee Court in
such situations has also got certain powers for stay of execution proceedings, although such
power not being absolute, but a qualified one.

9. POWER OF EXECUTING COURTS

i). Mode of execution Receivers—The various modes in which execution of a decree may be
ordered are as follows:

a) By delivery of any property specifically decreed;

b) By attachment and sale, or by sale, without attachment of any property;
c) By arrest and detention of the judgment-debtor;
d) By appointment of a Receiver; or
e) In such other manner as the nature of the relief may require.14

ii) Execution of a decree for delivery of property—When it is sought to enforce a decree in

Class (a) by attachment of the judgment-debtor’s property, it should be noted that the period
of six months for the sale of the property15 has been reduced to three months by the Punjab
High Court Execution of a decree for delivery of property. When it is sought to enforce a
decree in class (a) by attachment of the judgment-debtor’s property and such an attachment
has remained in force (for three months), the property, on application by the decree-holder
may be sold, provided the judgment debtor has not obeyed the decree, otherwise the
attachment should be ceased.

The period of six months mentioned in Order XXI, Rule 32(3) Civil Procedure Code, has also
been reduced to three months.

iii) Power of executing Court to question the validity of the decree—An executing Court
cannot go behind the decree or question the jurisdiction of the Court which passed it (22 P.R.
1919, 1.L.R., 5 Lah. 54). Its function is to execute the decree as it stands. It may, however,
refer to the judgment to ascertain its meaning when the terms of the decree are ambiguous.

13
Rule 28 Order XXI of CPC 1908.
14
Section 51 of CPC 1908.
15
Rule 31 Order XXI of CPC 1908.

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iv) Power of executing Court to decide question arising in execution—Section 47 of the
Code of Civil Procedure confer wide powers on the executing Court to decide all question
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. Such questions must be
decided by the executing Court and no separate suit it maintainable for the purpose. A
purchaser at a sale in execution of the decree would also be a party to the suit in view of the
amendment made in the explanation to this Section by Act No. 66 of 1956.

v) Execution of decree pending appeal—The filing of an appeal from a decree is, by itself,
no bar to its execution, and execution may proceed unless it is stayed by an order of the
Appellate Court or the Court which passed the decree (Order XLI, Rules 5 and 6). It should
be noted, however, that when an order is made for the sale of immovable property during the
tendency of the appeal, and the judgment-debtor applies for stay of the sale, the Court
ordering the sale is bound to stay it, though it can impose much terms as to security or
otherwise as it thinks fit [Order XLI, Rule 6(2)].

vi) Security when execution is stayed—When a stay of execution is granted under Order
XXI, Rule 26, Civil Procedure Code, the rules, as amended by the Punjab High Court, makes
it compulsory for the Court to require security or impose such conditions as it thinks fit
unless sufficient cause is shown to the contrary.

vii) Decree against Government—Where the decree is against the Government, or the State
of public officer in his official capacity, execution shall not be issued on such decree for a
period of three months and limitation for execution of such decree commences only after the
expiry of three months from the date of decree.

Some various modes in which execution of a decree may be ordered by executing court as of
his power are shortly described following.

9.1 DELIVERY OF PROPERTY

We can classify delivery of property in two ways. They are a) Delivery of movable property,
b) Delivery of immovable property.

When the decree is for delivery of any specific movable property, it may executed

 By the seizure if practicable, of movable or share and 

 By the delivery thereof to the party to whom it has been adjudged, or as to such
person as he appoints to receive delivery on his behalf, or 
 By the detention in the Civil Prison of the Judgment Debtor, or 
 By the Attachment of this property, or 
 By both (Prison & attachment of Property)16

16
Rule 31 Order XXI of CPC 1908.

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 When the decree is for delivery of any specific immovable property, a court executing a
decree has the power to attach the property and sell the property or portion thereof which
is sufficient to satisfy the decree 17. After such attachment the first step is issuing
proclamation of sale.18 Such a proclamation shall be prepared after notice to both the sides
and shall comprise of following details: –

 Time and place of sale.

 Details of property or part thereof to be sold.
 Revenue if any attached to property.
 Encumbrance to which the property is liable.
 Amount to be recovered under the decree.
 Such other particulars which court considers material.
Service of notice is a mandatory requirement and non-compliance will vitiate the entire
proceedings.

9.2 ATTACHMENT AND SALE OF PROPERTY

The court may, on the application of the decree-holder, order execution of the decree by
attachment and sale or by sale without attachment of any property.19

The following properties are liable to attachment and sale in execution of a decree, namely:

1. Lands
2. Houses or other buildings
3. Goods
4. Money
5. Banknotes
6. Cheques
7. Bills of exchange
8. Hundis
9. Promissory notes
10. Government securities
11. Bonds or other securities for money
12. Debts
13. Shares in corporation and
14. All other saleable property movable or immovable

The following properties are not liable to attachment and sale in execution of a decree,
namely:

17
Rule 35 Order XXI of CPC 1908.
18
Rule 36 Order XXI of CPC 1908.
19
Section 51(b) of CPC 1908.

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1. The necessary wearing-apparel
2. Cooking vessels
3. Beds and bedding
4. Personal ornaments
5. Religious usage
6. An agriculturist tools of artisans
7. An agriculturist implements of husbandry and such cattle and seed-grain
8. Be necessary to enable him to earn his livelihood
9. An agriculturist houses and other buildings (with the materials and the sites thereof
and the land immediately appurtenant thereto and necessary for their enjoyment)
10. An agriculturist or a labourer or a domestic servant
11. An agriculturist occupied by him
12. Books of account;
13. A mere right to sue for damages;
14. Any right of personal service;
15. Stipends and gratuities allowed to pensioners of the government or payable out of any
service family pension fund notified in the Official Gazette by the Government in this
behalf, and political pension.
16. The wages of labourers and domestic servants, whether payable in money or in kind.
17. Salary to the extent of the first hundred Taka and one half the remainders. [Provided
that where Such salary is the salary of a servant of the Republic or a servant of the
Railway of local authority, and the whole of a part of the portion of such salary liable
to attachment has been under attachment, whether continuously or intermittently, for a
total period of twenty-four months, such portion shall be exempt from attachment
until the expiry of a further period of twelve months, and, where such attachment has
been made in execution of one and the same decree, shall, be finally exempt from
attachment in execution of that decree.]
18. The pay and allowances of persons to whom the Army Act, 1952, the Navy
Ordinance, 1961, or the Air Force Act, 1953, applies
19. all compulsory deposits and other sums in or derived from any fund to which the
Provident Funds Act, 1925, for the time being applies in so far as they are declared by
the said Act not to be liable to attachment
20. any allowance forming part of the emoluments of any servant of the Republic or of
any servant of the Railway or local authority which the Government may by be
notification in the official Gazette declare to be exempt from attachment, and any
subsistence grant or allowance made to any such servant while under suspension
21. An expectancy of succession by survivorship or other merely contingent or possible
right or interest
22. A right to future maintenance
23. Any allowance declared by any Bangladesh law to be exempt from liability to
attachment or sale in execution of a decree; and,

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 24. Where a judgment-debtor is a person liable for the payment of land-revenue, any
movable property which, under any law for the time being applicable to him, is
exempt from sale for the recovery of an arrear of such revenue.20

9.3 ARRSEST AND DETENTION

According to Section 55 of the CPC 1908, A judgment-debtor may be arrested in execution

of a decree at any hour and on any day, and shall, as soon as practicable, be brought before
the Court, and his detention may be in the civil prison of the district in which the Court
ordering the detention is situate, or, where such civil prison does not afford suitable
accommodation, in any other place which the Government may appoint for the detention of
persons ordered by the Courts of such district to be detained:

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-
house shall be entered after sunset and before sunrise:

Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such
dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way
prevents access thereto, but when the officer authorised to make the arrest has duly gained
access to any dwelling-house, he may break open the door of any room in which he has
reason to believe the judgment-debtor is to be found:

Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the
judgement-debtor and who according to the customs of the country does not appear in public,
the officer authorised to make the arrest shall give notice to her that she is at liberty to
withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable
facility for withdrawing, may enter the room for the purpose of making the arrest:

Provided, fourthly, that, where the decree in execution of which a judgment-debtor is

arrested, is a decree for the payment of money and the judgment-debtor pays the amount of
the decree and the costs of the arrest to the officer arresting him, such officer shall at once
release him.

(2) The Government may, by notification in the official Gazette, declare that any person or
class of persons whose arrest might be attended with danger or inconvenience to the public
shall not be liable to arrest in execution of a decree otherwise than in accordance with such
procedure as may be prescribed by the Government in this behalf.

(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money
and brought before the Court, the Court shall inform him that he may apply to be declared an
insolvent, and that he may be discharged if he has not committed any act of bad faith

20
Section 60 of CPC 1908.

9
regarding the subject of the application and if he complies with the provisions of the law of
insolvency for the time being in force.

(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and
furnishes security, to the satisfaction of the Court, that he will within one month so apply, and
that he will appear, when called upon, in any proceeding upon the application or upon the
decree in execution of which he was arrested, the Court may release him from arrest, and, if
he fails so to apply and to appear, the Court may either direct the security to be realized or
commit him to the civil prison in execution of the decree.

The court shall not order the arrest or detention in the civil prison of an woman in execution
of a decree for the payment of money.21

9.4 APPOINTMENT OF RECEVIER

One of the modes of execution of a decree is the appointment of a receiver. Execution by
appointment of a receiver is known as equitable execution and is entirely at the discretion of
court.22 It cannot be claimed as of right.23 It is thus an exception to the general rule that it is
for the decree holder to choose the mode of execution and that the court has no power to
refuse the mode chosen by him.

The appointment of receiver in execution proceeding is considered to be an exceptional

remedy and a very strong case must be made out in support of it. 24 The decree-holder before
resorting this mode must show that there is no effective remedy for obtaining relief by the
usual statutory modes of execution.25 The court also must be satisfied that the appointment of
receiver is likely to benefit both the decree-holder and judgement-debtor rather than a sale of
the attached property.26

9.5 OTHER MANNER AS MAY REQUIRED

The execution of decree can be made by other manners as may be required other than those
which already discussed. Such as

1. Sentence and Imprisonment

2. Death sentence
3. Life time Imprisonment
4. Compensation and Damages
5. Specific performance of Contract
21
Section 60 of CPC 1908.
22
Lakhiyar v, Kanti Kumar (1965)
23
Onkarlal v. Rampal (1961)
24
Bhagwati bai v. Padma Bai (1955)
25
Ambalal v. Vijay Singh (1955)
26
Toolsa Golal v. John Antone (1887)

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 6. Injunction
7. Declaration
8. Payment of Money
9. Execution of document
10. Endorsement of negotiable instrument
11. Attachment of rent, Mesne profits
12. Payment of coins or currency notes etc.

10. ENDING
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.

11
11. SUPPORTIVE SOURCES

1. Hand Book on Code of Civil Procedure

writer- Muhammad Wazed

2. Civil Procedure with Limitation Act, 1963

writer- C.K Takwani

3. Article- Execution of decree

writer- Nishant Sharma
(https://www.academia.edu/12410382/execution_of_decree)

4. Lecture- Code of Civil Procedure 1908

(http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-
04.html)

5. Q&A in Blog: What are the different Modes of Execution of a Decree?

(http://sskforum.blogspot.com/p/q-what-are-different-modes-of-execution.html)

6. Article- Stay of execution

writer: Shudhansu Shekar
(https://www.academia.edu/11723265/Stay_of_Execution)

7. Article- Concept of execution

writer: Abhishek Kumar, CNLU
(https://www.lawctopus.com/academike/concept-execution/#_ednref2)

8. Article- All About Execution of a Decree under Order 21, Code Of Civil
Procedure
writers- Pranjali Sharma & Jyotsana Uplavdiya
(https://www.latestlaws.com/articles/all-about-execution-of-a-decree-under-order-21-
code-of-civil-procedure-by-pranjali-sharma-jyotsana-uplavdiya/)

9. http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_e6va2gcv.
pdf

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