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Execution of Decree-2
Execution of Decree-2
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.
Illustration:
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 procedural law.
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 executability 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 solution.
The Court further explained that the judicial quality of the remedy under Civil Procedure
Code is considered to be superior as compared to other statutes therefore, the judges are
expected to do better as they are entrusted with the administration of justice.
Execution decree can be made only against the judgment debtor, if he is alive or against
legal representatives of judgment debtor.
Section 38 of the Code states that a decree can be executed either by the Court of
the first instance or by the Court to which it has been sent for execution.
Section 37 of the Code further establishes the scope of the expression “court which
passed a decree” with the object of enabling a decree-holder to recover the fruits of the
decree. The courts which fall within the said expression are as follows:
Explanation to the section clarifies that the court of first instance shall have jurisdiction
to execute a decree even in the case of any area being transferred from the jurisdiction
of the court of first instance to the jurisdiction of any other court. In such cases, the
court to the jurisdiction of which such area has been transferred will also have
jurisdiction to execute the decree, provided that the said court had jurisdiction to try the
said suit when the application for execution was made.
Section 39 provides that when a decree-holder makes an application to the court of the
first instance to send the decree for execution to another court, the court of first
instance may do the same if any of the following grounds exist:
2. if the property of judgment-debtor does not come under the jurisdiction of the
Court of the first instance but it comes under the local limits of the jurisdiction of
such Court;
3. if the decree directs delivery or sale of immovable property situated outside the
jurisdiction of the Court which passed the same;
4. if the Court which had passed the decree considers that the decree should be
executed by another court, but it shall record the reasons in writing for doing the
same.
Section 39(2) states that the Court of the first instance may suo motu send it for
execution to any subordinate Court of competent jurisdiction.
The Section further states that if the execution of the decree is against a person or
property outside the territorial jurisdiction of the court passing the decree, then such
Court has no power to execute the decree.
In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of
Section 39 are not mandatory because the court will have discretion in the matter which
can be exercised by it, judicially. The decree-holder would not have any vested or
substantive right to get the decree transferred to another court.
In the case of V. Ramswami Vs T.N.V.Kailash Theyar reported in AIR 1951 S.C,189
(192), it was observed that, ''the duty of an executing Court is to give effect to the terms
of the decree. It has no power to go beyond its terms. Though, it has power to interpret
the decree, it cannot make a new decree for the parties under the guise of interpretation
''.
The Supreme Court in Karansing Vs Chaman Pawan reported in (1955) 1 SCR 117, that a
decree passed by a Court without jurisdiction is a nullity, and its validity can be set up
whenever and wherever, it is sought to be enforced or relied upon, including the stage of
its execution.
In Topanmal Vs M/s Kundomal Gangaram reported in AIR 1960, SC 388, it was held by
the Supreme Court that, an executing Court must take the decree as it stands. An
executing Court cannot go behind the decree. It can neither add something in the decree
already passed, nor alter the decree. It cannot grant relief which is not contemplated by
the decree.
The Code lays down the procedure for execution of foreign judgments and decrees in
India. While enforcing a foreign judgment or decree in India it should be ensured that the
judgment or decree is a conclusive one, given on the merits of the case and by a court
having competent jurisdiction.
A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays
down the test for conclusiveness of a foreign judgment or decree, which says that a
foreign judgment would be conclusive in all cases except the following:
Two ways in which a decree or foreign judgment can be enforced in India are as follows:
According to Section 44A of the CPC, a decree of any superior court of a reciprocating
territory shall be executed in India as that has been passed by the district court.
While filing the execution application the original certified copy of the decree shall be
filed along with a certificate from the superior court stating the extent to which the
decree has been satisfied or adjusted.
In the cases where a judgment or decree has not been pronounced by a court of a
reciprocating territory, it can be executed only when a fresh suit on that foreign
judgment is filed in a court of India which has competent jurisdiction to entertain the
same.
The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine Construction &
Engineering Ltd., observed that when a decree has been pronounced by a court of a non-
reciprocating foreign territory, it cannot be executed unless a fresh suit has been filed by
the decree-holder on that foreign decree or on the original cause of action, or both. The
suit must be filed within a period of three years from the date of the judgment or decree.
The person seeking execution shall show that the foreign decree passes the tests of
Section 13.
The court further observed that Section 13 of the Code provides substantive law and
Section 44A of the Code is an enabling provision and it enables a decree-holder to put a
decree obtained from a court of a reciprocating territory into execution. Section 13
clearly expresses the principles of private international law, that a court will not enforce a
foreign judgment of a competent court.
Section 45 of the Code is related to the execution of decrees outside the territory of
India. It states that a Court has the power to send a decree for execution to a Court
outside India which has been established by the Central Government’s authority. It should
be ensured that the State has, by notification in the Official Gazette, declared the said
section can apply to such Court. A plain reading of the aforesaid provision yields the
following features:
1. The decree which has to be executed should be of an Indian Court and it should be
for execution in a foreign territory.
2. The Central Government should have established the transferee court in such
foreign territory.
3. The State Government should have declared by notification in the Official Gazette
that this section will apply to the said foreign Court.
The provision, therefore, prescribes the prerequisite conditions for the execution of an
Indian decree outside the country. Therefore, in the absence of either of the aforesaid
conditions in Section 45, an Indian Court has no jurisdiction to send its decree for
execution to a Court not situated in India.
In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court observed that
“simultaneous execution proceeding in more than one place is possible but the power shall
be used in a restricted manner, in exceptional cases by imposing proper terms so that the
judgment debtors do not face any hardship because of several executions are being
allowed to be proceeded with at the same time.” Therefore, simultaneous execution
proceedings are not without jurisdiction or illegal.
Procedure in execution
Section 51
The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may
execute decree as per the mode of implementation prayed by the decree-holder or as the
court deems fit.
Section 52
This section deals with the cases where the decree is passed against the legal
representative of the judgment-debtor (deceased). So long as the property of the
deceased remains in the hands of a legal representative, a decree can be executed against
the property, if it is for the payment of money out of the property of the deceased and if
the decree has been passed against the party as the legal representative of the deceased
person.
Section 53
The Section states that when a property is liable for payment of a debt of a deceased
ancestor and it is in the hands of a son and descendant, then the property will be deemed
to be of the deceased which has as his legal representative come into the hands of the son
or other descendants.
Section 54
When a decree has been passed for partition or for the separate possession of a share of
an undivided estate for the payment of revenue to the government, this section comes into
play. The partition of the estate or share needs to be made by the collector, but if the
collector denies making the partition of the revenue paying property, then the civil court
can do so. To attract the provisions of this section, the plaintiff asking for the division of
government revenue is not deemed as an essential condition.
Once a court which has passed a decree and transferred it to another court of competent
jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute the
decree. Then, only the transferee court can entertain an application for execution.
Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has
been sent for execution to another district, it may be executed by either the district
court to which it was sent or by a subordinate court which has competent jurisdiction, to
which the district court may refer it.
Section 42 provides for the powers of the transferee court and states that the Court to
which a decree has been sent for execution shall have the same powers in execution of
such decree as if it had been passed by itself.
The Court has the power to punish the persons who cause obstructions in the execution of
the decree and the power shall be exercised by the court as if the decree has been passed
by it. The main object of giving such powers to the transferee court is to ensure that the
judgment-debtor pays the money or gives such other thing to the decree-holder as would
be directed by the decree.
However, the court to which a decree is sent for execution will not have the power to
order execution at the instance of the transferee of the decree and the power to grant
leave to execute a decree passed against a firm against any person, other than a person
referred to in Rule 50 of Order 21.
The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may
execute decree as per the mode of implementation prayed by the decree-holder or as the
court deems fit.
Conclusion
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
decree-holder.
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.