EXECUTION DECREE

3 STAGES OF LITIGATION:
I. initiation of litigation,
II. adjudication of litigation, and
III. implementation of litigation.
MEANING
• Execution implies giving effect to an order or judgment of a court of justice.
• Once a decree or judgment is passed by the court,
o it is the obligation of the person against whom the judgment is passed (judgment-debtor),
o to give effect to the decree so as to enable the decree-holder to enjoy the benefits of the
judgement.
• When the decree-holder is granted certain consideration by judgment, decree or order, the execution
is complete.
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.
PRINCIPLES
• 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.
• Section 37 of the Code further establishes “court which passed a decree” with the object of enabling a
decree-holder to recover the fruits of the decree.
• 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.
• 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 solutions as also stated
under Ghan Shyam Das v. Anant Kumar Sinha
APPLICATION FOR EXECUTION CAN BE MADE BY

• The decree holder himself.

• His legal representative if the decree holder is dead.
• Any person claiming under the decree holder.
• Transferee of Decree holder who has given notice to transferor and judgement debtor.
• Any one or more of the Decree holders where it is for benefit of all and no contrary intention is
indicated.

MODES OF EXECUTING A DECREE

• By delivery of any property (movable or immovable) specifically decreed.
• By sale of the property with or without the attachment of the property. [If the property is situated
within the jurisdiction of the court then it has the power to attach the property.]
• By arrest and detention. However, this mode should not be exercised without giving a reasonable
opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be
imprisoned.
• Execution by appointing a receiver.
• Section 51 of C.P.C lays down that the court may on the application of decree holder subject to such
conditions and limitation as may be prescribed, order execution of the decree.
POWERS OF EXECUTING COURT
It is stated the jurisdiction and power of the court in executing a decree is as follows:
• Whenever an application for execution of the decree is made, it may be made orally or in writing.
• The court has the power to execute decree as per the mode of implementation prayed by the decree-
holder or as the court deems fit.
STAY ON EXECUTION DECREE
Order 41 Rule 5 of CPC provides for the stay of an execution. Following are the circumstances under which
stay of an execution may be made:
• If in a suit, it is found that the rights of parties are required to be adjudicated by the Court and that
such suit is pending and unless the rights are to be determined, the decree cannot be executed in such
circumstances, Court can stay the execution proceeding.
• when an appeal has been filed by either of the parties, the appellate court may order stay of
proceedings or stay on an execution of such decree.
The objective of the same is to protect the interest of both the parties i.e. the decree-holder and the
judgement-debtor.
The conditions preceding the court’s order regarding the stay on execution of decree are:
• The application has been made without unreasonable delay.
• The applicant might suffer from a substantial loss, unless such stay is applied.
• Security has been given by the applicant for the due performance of the decree.

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APPEAL, REFERENCE AND REVIEW
APPEAL
• An appeal is a remedial concept determined as an individual’s right to seek justice against an unjust
decree/order via referring it to a Superior Court.
• Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908 deal with appeals.
• An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the matter
to the lower forum for fresh decision in compliance of its directions.
• The right to appeal is a statutory & substantive one.
The essentials of appeal:
• A decree passed by a judicial/administrative authority;
• An aggrieved person, not necessarily a party to the original proceeding; and
• A reviewing body instituted for the purposes of entertaining such appeals.
FORMS OF APPEAL
Appeals may be broadly classified into two kinds:
• First appeal; and
• Second appeal.
The sub-categories under appeals are:
• Appeal from original decree;
• Appeal from order;
• Appeal from appellate decree/second appeal/to High Court;
• Appeal to the Supreme Court.
FIRST APPEAL
• Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court exercising
original jurisdiction to the authorized appellate Courts, except where expressly prohibited.
• A combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a regular First appeal
may/may not be maintainable against certain adjudications.
SECOND APPEAL
• Section 100 provides for a second appeal under this code.
• It states that an appeal shall lie to the High Court from a decree passed in the first appeal by a
subordinate Court, excepting the provisions speaking to the contrary.
• The scope of exercise of jurisdiction under this section is limited to a substantial question of law
framed at the time of admission of appeal or otherwise.
• Cases Laws:
o In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held that The High Court
cannot set aside the finding of facts by the First Appellate Court.
o In the case of Annapoorani Ammal vs G.Thangapolam, it was held that the High Court can only
interfere when there involves a substantial question of law.
NATURE OF THE SECOND APPEAL
• The right to appeal is not inherited but it is created by statute. The right to file suits is inherent in
nature.
• This right starts from the date of filing suits.
• The decision of Appellate Court is final.
• The rights cannot be declared void until and unless declared by the statue.
SCOPE OF THE SECOND APPEAL
The Second appeal can be exercised only when the case falls under these categories-
(a ) Question of law is involved.
(b) Question of law should be substantial.
POWERS OF APPELLATE COURT
• Section 107 prescribes the powers of an appellate Court:
• To remand a case;
• To frame issues & refer them for trial;
• Reappraisal of evidence when a finding of fact is challenged before it;
• To summon witnesses;
• Can reverse inference of lower Court, if not justified;
• Appreciation of evidence.
DUTIES OF AN APPELLATE COURT
• The appellate Court has a duty to analyze the factual position in the background of principles of law
involved and then decide the appeal.
• To provide cogent reasons for setting aside a judgment of an inferior Court.
• To delve into the question of limitation under Section 3(1) of the Limitation Act.
• To decide the appeal in compliance with the scope & powers conferred on it under Section 96 r/w
O.XLI, R.31 of the CPC.
Section 113 of Civil Procedure Code deals with the provision of reference.

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 JUDGEMENT & DECREE

Judgement Decree

• A judgement is based upon facts. • A decree is based upon judgement.

• Judgment is made prior to decree. • Decree always follows a judgement.

• A judgement contains facts of the case,

• A decree contains the outcome of the
the issues involved, the evidence
suit and conclusively determines the
brought by the parties, finding on
rights of the parties with regard to the
issues(based on evidence and
issues in dispute in the suit.
arguments).

• The definition of the word judgement • The definition of the word decree given
given in section 2(9) of the Code of Civil in section 2(2) of Code of Civil
Procedure, 1908 does not include the Procedure, 1908 includes the word
word ‘formal’. ‘formal’.

• Section 2(9) of the Code of Civil • Section 2(2) of the Code of Civil
Procedure, 1908 describes the term Procedure, 1908 describes the term
judgement. decree.

• Judgement has no types. • A decree is divided into three types.

• Judgement may result in a preliminary

• The decree may be a preliminary or final
decree or a final decree or an order by
or partly preliminary and partly final.
itself, the judgement is always final.

• After passing the decree, the suit stands

• Judgement leads to the final disposal of disposed of since the rights of the
the suit after the decree is drawn up. parties are finally determined by the
court.

KINDS OF DECREES
According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into three categories:
1. PRELIMINARY DECREE
• a preliminary decree is a decree where further proceedings have to take place before the suit
can be completely disposed off.
 • It decides the rights of the parties in respect to all or any of the matters of discussion but it
does not completely dispose of the suit.
• In such a decree the rights and liabilities of the parties are stated leaving the actual result or
decision to be worked out in future proceedings.
• A preliminary decree is passed in those cases where the proceedings are to be carried out in
two different stages.
• The first stage is when the rights of the parties are adjudicated and the second stage is when
those rights are implemented or executed.
2. FINAL DECREE
• a final decree is a decree which completely disposes of the suit and settles all the questions in
discussion between the parties and nothing is left further for deciding thereafter.
• It is only said to be final when such adjudication completely disposes of the suit.
3. PARTLY PRELIMINARY AND PARTLY FINAL DECREE
• A decree is said to be partly preliminary and partly final when the court decides two questions
by the same decree. For instance, if the court passes a decree in favour of one party along with
a direction of inquiry for the other party, the former part of the decree is final while the latter
part is a preliminary decree for which further proceedings have to take place. For example, in a
suit of possession of a property with company ‘C’, if the court passes a decree of possession of
the property in favour of the plaintiff and directs an enquiry into the company ‘C’, then the
former part of the decree is final decree while the latter part is the preliminary decree.
INTEREST
• Interest is the fraction of amount of money which the Court asks the losing party to pay to the
aggrieved party as the initial principal sum was not paid on time or the expenses incurred by
the winning party in filing the documents and making necessary contracts and legal notices.
• The term interest is defined in Section 34 of the Code of Civil Procedure, 1908.
• The Court in the decree orders interest at a rate as the Court finds reasonable and appropriate
to be paid on the principal sum declared from the date of filing of the lawsuit to the date of
passing of the decree.
• The Court even allows further interest at a rate not exceeding six percent per annum on the
principal sum for any period prior to the institution of the suit from the date of passing of the
decree to the date of the payment or any such earlier date as the Court finds appropriate and
reasonable.
COSTS
• Cost means to incur a charge or to require payment of a specified price.
• Cost is defined in Section 35 of the Code of Civil Procedure, 1908.
• The primary objective of ordering costs is to provide the litigant with the expenses incurred by him
during the litigation.
• The provision of providing costs is on the discretion of the court that it may grant order for payment of
costs to the winning party by the losing party subjected to pay for the expenses incurred during the
litigation period or while drafting legal notices and contracts.
• This is a kind of remedy and it shall not be treated as a reward for the winning party and punishment
for the losing party.
• Granting of costs is at the discretion of the Court and if the court refuses to grant cost then it should
give reasons for doing so in writing. The discretion is based upon facts and circumstances of the case
and not by chance.

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 SUPPLEMENTARY PROCEEDINGS

COMMISSIONS
Sec. 75 to 78 Order 26
Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do
everything that the Court requires to deliver full and complete justice. Such person who carries out the
commission is known as a Court commissioner.

ARREST BEFORE JUDGEMENT

• The creditor can move for the arrest of the debtor or for the attachment of his property before the
judgement under Order 38 of the CPC.
• The main object of this provision is to enable the plaintiff to realise the amount of decree, if a decree is
eventually passed in his favour. Also to prevent the defendant to defeat the execution of such decree
passed against him.
• An order passed under Rule 2, 3 or 6 of Order 38 is appealable.
• An order of arrest made under Rule 1 of Order 38 can be said to be a 'case decided' under section 115
of the Code and is revisable.
ATTACHMENT BRFORE JUDGEMENT
An attachment before judgment is to enable the plaintiff to realize the amount of the decree, supposing a
decree eventually made, from the defendant property. This is the object of the Order 38 rule 5 of The Civil
Procedure Code,1908
INJUNCTION ORDER 39
APPOINTMENT OF RECIEVER
• Appoint of a receiver of any property is an Interlocutory order which is often called interim order is a
decision of the court given during the proceedings and before the finality of a case to ensure that the
interest of either party is not harmed due to or during the process of justice.
• Section 94 of Part VI of the Code of Civil Procedure lists the ‘Supplemental Proceedings’ which
mentions how the court can issue interlocutory orders to prevent the ends of justice from being
defeated
• The court may appoint a receiver and enforce the performance of his duties by attaching and selling
his property.
• Such a person is appointed to collect any payments or rent.

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LIMITATIONS ACT
• The word limitation in its literal term means a restriction or the rule or circumstances which are
limited.
• The law of limitation has been prescribed as the time limit which is given for different suits to the
aggrieved person within which they can approach the court for redress or justice.
• The basic concept of limitation is relating to fixing or prescribing of the time period for barring legal
actions.
• According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’ means the period of
limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’
means the period of limitation computed in accordance with the provisions of this Act.
PRESCRIBED PERIOD
Period of 12 years has been prescribed for different kinds of suits relating to immovable property, trusts and
endowments, a period of 3 years has been prescribed for the suits relating to accounts, contracts and
declarations, suits relating to decrees and instruments and as well as suits relating to movable property.
BAR OF LIMITATION – DOCTRINE OF SUFFICIENT CAUSE FOR CONDONATION OF DELAY
• Section 5 of the Limitation Act, 1963 allows the extension of prescribed period in certain cases on
sufficient cause being shown for the delay.
• This is known as doctrine of “sufficient cause”.
• Section 5 provides that any appeal or application (not plaint or suit) may be admitted after the
prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for
not preferring the appeal or making the application within such period.
• Section 5 applies only to appeals or applications.
• The reason for non-applicability of the Section to suits is that, the period of limitation allowed in most
of the suits extends from 3 to 12 years whereas in appeals and application it does not exceed 6
months.
EXCEPTIONS TO BAR OF LIMITATION
 • Wrong practice of High Court which misled the appellant or his counsel in not filing the appeal should
be regarded as sufficient cause under Section 5.
• In certain cases, mistake of counsel may be taken into consideration in condensation of delay, but such
mistake must be bona fide.
• Wrong advice given by advocate can give rise to sufficient cause in certain cases.
• Mistake of law in establishing or exercising the right given by law may be considered as sufficient
cause. However, ignorance of law is not excuse, not the negligence of the party or the legal adviser
constitutes a sufficient cause.
• Imprisonment of the party or serious illness of the party may be considered for condonation of delay.
• Time taken for obtaining certified copies of the decree of the judgment necessary to accompany the
appeal or application was considered for condoning the delay.
• Non-availability of the file of the case to the State Counselor Panel Lawyer is no ground for
condonation of inordinate delay.
Continuous Running of Time – No subsequent disability or inability to institute a suit or make an application
can stop it
EXCEPTIONS
• Time for limitation runs when the cause of action accrues.
• Certain exceptions were provided in Sections 4 to 8.
o Section 4 provides that if the period prescribed expires on a day when the Court is closed, the
application etc, may be made on the day, the Court reopens.
o As per Section 5 condonation of delay is allowed on sufficient grounds.
o Sections 6, 7& 8 allow extension of time in certain cases of disability.
o Continuous running of time [Section 9]:
➢ Once a period of limitation starts no subsequent disability or inability can stop it.
➢ The applicability Section 9 is limited to suits and applications only and does not apply to
appeals unless the case fell within any of the exceptions provided in the Act itself.
➢ Section 9 applies when the cause of action or right to move the Court continues to exist
on the date of making the application. Thus, the time runs, when the cause of action
accrues. Thus, once time has begun to run, no subsequent disability or inability stops it.
➢ Section 9 of the Limitation Act, 1963 states that, once time begins to run no subsequent
disability or inability can stop to institute a suit or make an application.
➢ For a given case, the period of limitation will run from the date of loan (i.e. cause of
action). There is no disability at that time and time has begun to run from the date of
loan itself. Subsequent disability i.e. the son was minor have no use. The limitation
period in this case will end after 3 years from the date of loan (i.e. cause of action).

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GENERAL

ADJOURNMENT OF COURT
• The term adjourn, in layman’s term, means to postpone or to discontinue.
• The Code of Civil Procedure, 1908 does not define the term but, however, Order XVII deals with
adjournment specifically.
• Order XVII of CPC deals with the situations when adjournment can occur and the procedure to be
followed by the court during the adjournment of a hearing.
• Rule 1 of the Order empowers the court to adjourn a hearing in a suit if a party seeking adjournment
shows the court that there is sufficient reason for the adjournment.
The procedure and traits of an adjournment under Rule 1 of Order XVII:
1. When the hearing in a suit commences, the party seeking adjournment of the hearing shall request the
court to adjourn the hearing for that day.
2. The court has the discretion to adjourn the hearing.
3. The court cannot suo motu adjourn a case unless either of the parties or their pleaders make a
request.
4. The party seeking adjournment of a hearing shall provide sufficient reasons for seeking adjournment
of the hearing.
5. The hearing can be adjourned and the request for adjournment can be made at any time during the
hearing of the suit before the court renders the decree. There is no specific stage for claiming
adjournment, nor is there a bar.
6. The court shall record the reasons for adjournment of the hearing for that day in writing and such
written reasons will form part of the record of the case.
7. There can be several reasons for seeking adjournment of a hearing and Rule 1 recognizes one such
reason to be to grant time to the parties to the suit to prepare their respective cases.
8. The court cannot grant an adjournment to the same party more than thrice in a suit.
9. The court shall fix another date for hearing in the suit and announce the date before the parties after
passing the adjournment order.
10. The court shall also pass an order with respect to costs that need to be borne because of the
postponement of the hearing.
11. Adjournment shall be an exception to the normal rule of day to day hearing until the case is finally
disposed of.
12. Adjournment is only the last resort of the court and should only be granted if the circumstances in the
case go beyond the control of the parties and the case needs to be adjourned.
13. Rule 1 specifically mentions that a pleader cannot plead the excuse of being busy in another court for
the reason of adjournment.
Consequences of failure of a party to produce evidence for which adjournment was granted by the court:
The reason will be stated by the parties, a lawyer on the basis of sudden illness or physical ailment for that
fact evidence will be given that evidence should be properly examined if there is any proof that the evidence
given was false immediate action should be taken against them in terms of fines or misleading the court of
law or wasting court time may be considered as wilful disobedience of the presiding judge
INTERPLEADER SUIT AND INHERENT POWERS OF COURT (SECTION 88 R/W ORDER 35 AND SECTION151)
INTERPLEADER SUIT
• Interpleader suit in C.P.C is defined in section 88 with order no XXXV.
• An interpleader suit means if any person claims any property of her husband or her parents and in case
the owner of the property is dead without transferring the property, then the second owner has to
claim the property from the bank or authority.
• After claiming for such property the bank or the authority has to file an interpleader suit in the court.
Then the court will decide who will be the main owner of the property.
• In an interpleader suit, there were many defendants to claim the property. Plaintiff gets the monetary
value for filing the suit in the court on behalf of the defendant. He is not liable for any damage.
• In Chhaganlal Himatlal vs. the Bombay, Baroda and Central India Railway:
The railway company has brought an interpleader action against the agent and a third party, alleging
that the company is not the consignor's agent. The business has a direct arrangement with the
consignor for the carriage of goods, according to the provisions of the railway act. As a result, the
railway company claims that it is not the consignor's agent, but rather has a contract with the
consignor for the carriage of goods. The court rules that since the railway company was acting as an
agent for the consignors, it was not competent to file an interpleader suit under Order XXXV, Rule 5 of
the Civil Procedure Code.
Conditions of Interpleader suit
• Debt, money, property either movable or immovable in the dispute.
 • Two defendants are there in the suit.
• Both defendants can claim each other for the property or money.
• The person who has to pay the debt to the defendant is not valid for any interest.
• The Claimant is willing to pay the debt, or some amount of money, or property to the defendant.
• Suits are not pending in this.
• This suit cannot be filed twice if the judgment is given in Res judicata.
Test of applicability
The test of applicability is done during the suit when the pleading is going on. This test is done by a court of
law, after this test they decide about the next owner of the property or money. This test is very important for
the interpleader suit. Because in an interpleader suit one or more defendants are there. In a test of
applicability, some questions are asked from the defendant during the pleading.

Interpleader suit Impleader suit

In an impleader, suit defendant files a lawsuit and

1. The person who makes the interplea. brings the third party in his lawsuit who is not a part of
the liability.

2. There is a chance for a third party to enter into a Third-party is liable for the plaintiff’s claim against the
lawsuit as their interest. defendant in the lawsuit.

3. Examples: A and B claim the property of her husband

Example: A is the person who slips and falls in the
with C. C can sue A and B according to the interpleader
owner’s house and caused an injury and then he sues
suit in the court. A and B will litigate in court who owns
the owner for his injury.
the property.

INHERENT POWERS OF COURTS

• Inherent powers of courts are those powers which may be applied by the court to perform full and
complete justice between the parties before it.
• It is the duty of the Courts to serve justice in every case, whether given in this code or not, brings with
it the important power to do justice in the absence of a definite or separate provision.
• This power is said to be the inherent power that is maintained by the court, though not conferred.
• Section 151 of the Civil Procedure Code deals with the inherent powers of the court.
• Section 148 to 153B of CPC discusses the provisions of the Inherent powers of the Court.
• These provisions discuss the enlargement of time, payment of court fees, transfer of the business of
one court to another court, end of justice, abuse of process of the court, amendment of judgement,
decree, orders, and records, etc.
• The court stated in Ram Chand & Sons Sugar Mills Pvt Ltd v Kanhayalal Bhargav that the inherent
power of the court is "in addition to and complementary to the powers expressly conferred," but that
power will not be exercised if it is inconsistent with, or conflicts with any of the powers expressly or by
necessary interpretation conferred by the other provisions of the Code. If there are express provisions
that exhaustively cover a subject, it is a necessary implication that no power may be exercised in
relation to that topic except in the manner given by the said provision. The restrictions imposed on the
provision of secrecy by construction. The restrictions placed by construction on section 151's provision
 do not restrict the court's undoubted power to make an appropriate order to avoid misuse of the
court's procedure.
LIMITATIONS OF INHERENT POWERS

• They can be applied only in the deficiency of particular provisions in the Code;
• They cannot be applied in dispute with what has been expressly given in the code;
• They can be applied in rare or exceptional cases;
• While operating the powers, the court has to follow the method shown by the legislature;
• Courts can neither exercise jurisdiction nor entrust in them by law;
• To abide by the principle of Res Judicata i.e., not to open the issues which have already been decided
finally;
• To pick a mediator to make an award afresh;
• Substantive rights of the parties shall not be taken away;
• To limit a party from taking proceedings in a court of law; and
• To set apart an order which was valid at the moment of its issuance.
Issue and Framing of an Issue:
Under order 14 Rule 1, the court establishes "ISSUES" that serve as the framework for arguments and witness
questioning. The parties are not permitted to go beyond the boundaries of "Issues" because the issues are
framed with the conflict in mind. Issues may include: Which is more important: A) fact or B) law. The court
would deal with each issue separately and render judgment on each issue before issuing the final order.

Effect of Omission of Framing of Issue:

The court may adjourn the framing of issues to a later date (maximum of 7 days) in order to examine some
witnesses or inspect some documents that were not presented to the court at the first hearing. This order also
specifies that if the defendant makes no defence, the court is not obligated to frame issues. “Mere failure to
frame a question that does not impact the suit's merits disposition is not inherently fatal to the suit.”

Power of a Court to strike out or amend an issue:

The court has the power under Rule 5 to amend, incorporate, or strike out issues that it deems appropriate
before passing a decree at any time after the issues have been framed.