MODULE XIV, XV - EXECUTION

Execution is enforcing or giving effect to the judgment of the court. It is the enforcement of
decrees and orders by the process of court so as to enable the decree holder to realise the fruits of
his decree. An execution is complete when the judgment-creditor or decree-holder gets
money or other things awarded to him by the judgment, decree or order.

If A files a suit against B for Rs.10,000 and obtains a decree against him, A will be the
judgment-creditor or decree holder. B is the judgment-debtor and the amount of Rs.10,000 is
the judgment-debt or decretal amount. Principles governing execution of decrees and orders
are covered in S.36-74 & in O.XXI

Court passing a decree - S.37

S.37 widens the scope of the decree-holder, and lays out the courts passing a decree as;
● Court of first instance which actually passed the decree
● The court of first instance in case of appellate decrees
● Where the court of first instance has ceased to exist, the court which would have
jurisdiction at the time of execution
● Where the court of first instance ceases to have jurisdiction to execute the decree, the
court at the time of execution which would have the jurisdiction

Courts by which decree may be executed - S.38

S.38 - A decree may be executed either by a court which passed it, or by the court to which it is
sent for execution. A court which neither passed a decree nor a decree is transferred for
execution cannot execute it. Where the court of first instance ceases to have or ceases to exist to
execute the decree, the court at the time of execution which would have the jurisdiction.

Ex; Suppose court A passes a decree, and a part of the area within the area of jurisdiction of
court A is transferred to court B.

(i) Whether court A continues to have jurisdiction to entertain an application for execution?

Merla Ramanna v. Nallapparaju, 1956 SC - It is settled law that the court which actually passed
the decree does not lose its jurisdiction to execute it, by reason of the subject-matter being
transferred subsequently to the jurisdiction of another court.

(ii) Whether court B can also entertain an application for execution without a formal
transmission of decree from A to B?
Ans: Conflicting judgements

Lachmen Punde v. Madan Mohan, 1881 Cal HC

In this situation both the courts would be competent to entertain an application for execution.

Ramier v. Muthu Krishna Ayyar Mad. HC

In the absence of an order of transfer by court which passed the decree (court A), that court alone
can entertain an application for execution and not the court whose jurisdiction the subject matter
has been transferred to (court B).

Transfer of Decree - S.39

While this is not a mandatory prov and courts have discretion to decide on it, it basically lays out
that the court can suo moto by its own motion transfer the decree or decree-holder can make an
application if any of the following grounds exist;
● The judgment-debtor actually works or resides or carries on business or personally works
for gain within local limit of the other court
● If judgment debtor does not have sufficient property within limits of this court but has
property within local limits of another court
● Decree directs sale of immovable property located outside its limits
● Any other reason recorded in writing

Mahadeo Prasad Singh v. Ram Lochan, SC- Provisions of Section 39 not mandatory
Mammatha Pal Choudhury v. Sarada Prosad Nath- Court has discretion in the matter which
will be judicially exercised by it.

Application for execution - O.XXI, R.10

O.XXI, R.10 lays out who may file an application for execution;
1) Decree-holder
2) Legal rep if dec-holder in dead
3) Rep of the dec-holder
4) Any person claiming under the dec-holder
5) Transferee of the dec-holder if following conditions are met; (S.49, O.21, R. 16)
a) The decree must have been transferred in writing or by operation of law
b) The application for execution must have been made in court which passed
decree
c) Notice and opportunity of hearing must have been given to transferor
In case of decree in a representative suit, a person who is being represented in the suit may apply
for execution even if he is not on record. In a partition suit, the defendant to the extent of his
share, can also apply for execution. A receiver appointed by a court may apply for execution on
behalf of the decree-holder.

O.XXI, R.15 lays down those who can file in the case of joint decrees
1. One or more of the joint decree holders provides the following conditions are fulfilled
a. The decree should not have imposed any condition to the contrary
b. The application must have been made for the execution of the whole decree
c. The application must have been for the benefit of all the joint decree holders.
2. Any person having special interest

Payment under decree - O.XXI, R.1,2

R.1 - Modes of paying money under decree

A decree for payment of money (even as alternative relief) may be executed by attachment and
sale of property of judgment-debtor or detention in civil prison.
R.1 of the act deals with modes of paying money under the decree.All money payable under
the decree shall be paid by either;
1. Depositing money in executing court
2. Out of the court to the decree-holder
3. As per directions of court which passed the decree
R.1(2) lays out that where payment is being made by depositing the decretal amount in court or
by directions of the court, the judgment-debtor shall give notice of such payment to the decree-
holder through court or directly to him by registered post acknowledgment due (RPAD).

R.1(3) lays out that when payment is made out of court, the following particulars must be stated;
● The number of the original suit
● The names of the parties
● How the money remitted is to be adjusted, towards cost or interest or principal
● The number of the execution case of the court where such case in pending
● The name and address of the payer

A payment in accordance with Rule I of O. 21 discharges the judgment debtor from decretal
dues. On the amount being paid, interest shall cease from the date of payment.

R.2 - Payment out of court

R.2 lays out some procedures that need to be followed in case of payment out of court.
R.2(1) lays out that the court requires a certificate of payment or adjustment by the decree-holder
and recording of such payment or adjustment by the executing court.
R.2(2) lays out that the judgment-debtor may inform the court of payment or adjustment, and
apply to the Court to issue a notice to the decree holder to show cause, on a day to be fixed by
the Court, why such payment or adjustment should not be recorded as certified. If after
service of such notice, the decree-holder fails to show cause why the payment or adjustment
should not be recorded as certified, the Court shall record the same accordingly.

Modes of execution O.XXI, R.30 -36

After the decree holder files an application for executing a decree, the executing court can
enforce a decree. The substantive provisions under S.51 lay out different modes of execution in
general terms while conditions and limitations under which the respective modes can be availed
are under O.XXI.

S.51 Powers of Court to enforce execution - Subject to such conditions and limitations as may
be prescribed, the Court may, on the application of the decree-holder, order execution of the
decree
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of any property;
(c) by arrest and detention in prison
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require

Choice of mode of execution

Mahadeo Prasad Singh v. Ram Lochan, 1980 SC - As a general rule a decree holder has an
option to choose a particular mode of execution and enforce a decree passed by a competent
court in his favour.

(1) Delivery of movable property , O.XXI, R.31

R.31 - When the decree is for specific movable property it may be executed by
1. Seizure and delivery of property
2. Detention of judgment-debtor
3. By attachment and sale of his property
4. By attachment and detention both
Since R.31 deals with specific movable property, it does not include money and a decree for
money will not fall under this rule. Moreover for this rule to be applicable the property must be
in possession of the judgment-debtor. When property is in the hands of a third party,
provisions of this rule wont apply and property cannot be attached.

(2) Delivery of immovable property, O.XXI, R.35, 36

When decree is for immovable property in the possession of the judgment debtor it can be
executed by removing the judgment-debtor and by delivering possession to the decree holder. If
the decree-holder establishes his identity of decretal property, the decree must be executed by
putting him in actual possession. Possession delivered in this manner is known as khas or actual
possession - covered under R.35

But if the property is in the possession of a tenant or other person not bound by the decree, the
delivery of the property should be made by affixing a copy of warrant on some conspicuous
place on the property, making known to the occupant the substance of the decree. This is
known as symbolical or formal possession - covered under R.36.

Shamshuddin v. Abbas Ali, 1971 All

While R.35 and 36 deal with delivery of immovable property, if immovable property is in
possession with the judgment-debtor, actual possession must take palace and property is duly
delivered under R.35(1).
Where it is in the possession of a tenant or other person entitled to occupy the same, only
symbolic possession can be delivered and that is to be done under R.36.
(Ref to p.631 Takhwani)

Attachment and sale of property S.51(b)

● Empowers court to order execution of a decree by attachment and sale or by sale without
attachment of any property.
● Court is competent to attach said property if it is within its local limits of jurisdiction
● The primary object of attachment of property is to give notice to the judgment-debtor not
to alienate the property to anyone as also to the general public not to purchase or in any
other manner deal with the property of the judgment-debtor attached in execution
proceedings.
 ● Attachment is not a prerequisite for sale and a sale of said property without being
attached does not make the sale void

Arrest and detention S.51(c)

When decree is for payment of money, execution by detention in civil prison will not be ordered
unless after giving the judgment-debtor an opp to show cause why he should not be detained, the
court comes to the conclusion that;
● The jud-deb with the aim of obstructing execution,
a. is likely to abscond or leave local limits of court ,
b. has after institution of suit tried to dishonestly conceal property
● Jud-deb has means to pay the money but is not doing so
● The decree is for a sum which the jud-deb was bound in a fiduciary capacity

Appointment of receiver 51(d)

Execution by appointment of a receiver is known as an equitable execution . It cannot be claimed

as a right and is an exception to the rule that decree-holders can choose mode of execution. The
court must be satisfied that the appointment of receiver will benefit both the parties.

Goal of appointing a receiver is to ensure that the property in question is protected. The court
appoints an unbiased person with the objective of safeguarding the suit property until the case is
finally settled. During the course of the proceedings, the appointed receiver has the authority to
receive and accept the property's revenues and earnings. He acts as a court agent.

Stay of execution - O.XXI,

R.26
● Provisions for stay of execution proceedings, covered in R.26 of O.21.
● R,26(1) - It lays out that an executing court, on sufficient case being shown, and on the
jud-deb furnishing security or fulfilling conditions imposed on him, stay execution of
decree for a reasonable time to enable the jud-deb to apply to the court which has passed
decree, or to appellate court for an order to stay execution.
● The power to stay execution is not the same for a transferee court as it is for a court
passing the decree ( Pls refer to p. 623 of takhwani)
 ● R.26(2) - Where the property or person of the judgment-debtor has been seized under an
execution, the Court which issued the execution may order the restitution of such
property or the discharge of such person pending the result of the application.
● A transferee court cannot invoke inherent powers to grant stay-Shaukat Hussain v.
Bhuneshwari Devi HC

R.29
● Provides for stay of execution pending suit between the decree holder and the judgement
debtor.
● Where a suit by the judgement-debtor is pending in a court against the decree-holder,
such court may, on the judgement-debtor furnishing security or otherwise as it thinks fit,
stay the execution of the decree until disposal of the suit.

Questions to be determined by executing court - S. 47

● S.47 - only deals with matters arising after passing of the decree; deals with objection to
execution, discharge and satisfaction of decree.
● The section enacted with view to obtain adjudication of questions relating to execution
without unnecessary expenses or delay with a fresh suit
● While res judicata deals with the final decisions of the court, S.47 deals with enforcing
such decisions - where there is an executable order, no suit lies for its enforcement
● Exclusive jurisdiction has been given to the executing courts under S.47 to decide on
questions on execution
● States
○ Questions arising between parties relating to execution, discharge or satisfaction
of decree, shall be determined by the court executing the decree and not by a
seperate decree
○ Court will also determined questions arising as to whether any person is/is not the
representative of party
○ Explaination
i. Plaintiff whose suit has been dismissed and defendant against who suit has
been dismissed are parties
ii. Purposes of this section, a purchaser of property at a sale in execution of
decree also party
iii. All questions related to delivery of possession of property shall be deemed
to be questions relating to execution
● The Objective is to provide a cheap and expeditious remedy for determination of certain
questions in execution proceedings without recourse to separate suit and to prevent
unnecessary suits.
 ● Exclusive jurisdiction only on executing court. Executing court should alone determine
all questions in execution proceedings and filing of separate suit is barred.

Two Conditions for application of S.47

1. The question must be one arising between the parties to the suit in which decree is passed
or their reps
a. Explanation 2 of the Section clearly mentions that a purchaser of any property
which has to be sold in execution of a decree is deemed to be a party to the suit in
which the decree has been passed, irrespective of the fact that he or she is a
stranger to the suit.
b. The word “parties” neither includes de facto parties nor does it merely include
plaintiff and defendant but also includes opposing parties. For example, in a
suit related to partition, if any question arises between the co-defendants, they will
fall under the category of parties for Section 47
c. Whether a person is or is not a party to the suit should be decided not on the basis
whether he is a party to the decree but whether he is a party to the suit in which
the decree is passed (??)
d. Representatives not only include legal heirs, executors but also a
“representative-in-interest”- any transferee of interest of the
decree-holder/judgement-debtor who is bound by decree.
e. 2 test to identifying representative
i. When any portion of interest of property in discussion, originally vested
with parties in suit, has by act of parties or operation of law vested to
another, he can be a rep
ii. When there is devolution of interest to someone else, he can be a rep
2. In must relate to execution, discharge or satisfaction of the decree
● The expression has not been defined but refers to questions on executability and
non-executability if a decree
● Following questions are held to be related to execution, discharge or
satisfaction of decree
○ Whether a decree is executable
○ Whether property is liable to be sold in execution
○ Whether decree is fully satisfied
○ Whether party is entitled to restitution of property
○ Whether a person is a representative or not in relation to S.47
(For more examples, refer to p. 668 of Takhwani)
● Following questions are not questions relating to the execution, discharge or
satisfaction of decree
● Whether decree is fraudulent or collusive
● Question relating to territorial or pecuniary limits
● An order reopening or refusing to reopen decree
 ● Question relating to mesne profits
(For more examples, refer to p. 668 of Takhwani)
● Duties of executing court
○ An executing court cannot go behind the decree
○ Has to execute the decree as it is
○ Cannot question the correctness or otherwise of the decree
○ Where the terms of decree are vague and ambiguous, it is the duty of the
executing court to interpret the decree with a view to find out and
ascertain the meaning of the term used.
○ When there is an inherent lack of jurisdiction on part of the court passing
the decree, the executing court can refuse to execute the decree.

Precepts - S.46

● Precept means a command or an order or a writ or a warrant

● A precept 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
judgment debtor
● Section 46 provides that the court which passed a decree may, upon the application of
decree-holder, issue a precept to that court within whose jurisdiction the property of the
judgement-debtor is lying to attach any property specified in the precept.
● The court to which the precept is issued, is the court within which the jurisdiction of the
property of jud-deb is lying
● A precept aims to prevent alienation of property of judgment debtor not located within
jurisdiction of court which passed decree
● Object is to enable the decree holder to obtain an interim attachment of property of the
judgement-debtor situated within the jurisdiction of another court.
● An order for precept is merely a step taken to facilitate execution, and is not an
order transferring a decree for execution ( already dealt with in S.39)

Garnishee Orders - O.XXI, R.46 A - I

● Garnishee proceedings are proceedings by which a decree holder, seeks to get the money
or property owed to him by the judgment-debtor, in the hands of a third-party who is
actually a debtor to the judgment-debtor
● An executing court may order a third party to pay the decree holder the debt, he has to
originally repay to the judgment-debtor
● Garnishee is the judgment debtor’s debtor
● Garnisher is the decree holder
● Garnishment is a proceeding by which the decree-holder seeks to get the property of the
judgment debtor
● The payment made by the garnishee, pursuant to the order passed by the executing court,
to the garnisher is a valid discharge to him against his decree holder.
● Garnishee order is an order passed by the court ordering a garnishee not to pay money to
the judgment-debtor because the latter is indebted to the garnisher
● Ex; A owes Rs. 1000 to B. B owes Rs. 1000 to C By a garnishee order, the court may
require A not to pay money to B, but instead to pay C, who has obtained the order
● Rule 46-A requires a notice to be issued to the garnishee before a garnishee order is
passed against him
(Go through bare act R.46.A-I)