EXECUTION OF JUDGMENT AND DECREE (ORDER 21)

1. 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. According to Black’s Law dictionary, 10th Edition, page # 689,
The act of carrying out or putting into effect a court order.
2. CROSS REFERENCE:
High Court Rules and Orders, Vol-I, Chapter-12

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.
3. EXECUTION PROCEEDINGS UNDER CPC:
The Court 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
4. COURTS WHICH CAN EXECUTE DECREES?
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:
i. The court of the first instance;
ii. The court which actually passed the decree in case of appellate decrees;
iii. The court which has jurisdiction to try the suit at the time of execution, if the court of first
instance ceased to exist; the court which at the time of execution had jurisdiction to try the suit, if
the court of first instance has ceased to have jurisdiction to execute the decree.
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.
5. TRANSFER OF DECREE FOR EXECUTION:
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:
If the judgment-debtor carries on business, or resides or personally works for gain, within the jurisdiction
of such Court; 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;
If the decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court
which passed the same; 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.
6. EXECUTION OF FOREIGN DECREES IN PAKISTAN:
The Code lays down the procedure for execution of foreign judgments and decrees in Pakistan. While
enforcing a foreign judgment or decree in Pakistan 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.
7. WHAT ARE 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 Pakistan 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.
8. FOREIGN JUDGMENT OR DECREE NEEDS TO BE CONCLUSIVE:
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:
 When a court of competent jurisdiction has not pronounced it;
 When it has not been pronounced on the merits of the case;
 When it has been based on a wrong view of international law or a refusal to recognize the law of
Pakistan in cases in which such law is applicable;
 When the proceedings carried out while obtaining the judgment are opposed to natural justice;
When such judgment has been obtained by fraud;
 When it sustains a claim that had been based on a breach of any law in force in Pakistan.
Thus, a foreign judgment or decree shall pass the seven tests mentioned above. Otherwise, such foreign
judgment or decree cannot be enforced in Pakistan as such judgment or decree will not be regarded as
conclusive if it fails any of these tests.
9. MODE OF ENFORCEMENT OF A FOREIGN JUDGMENT OR DECREE:
Two ways in which a decree or foreign judgment can be enforced in Pakistan are as follows:
Where the decree or judgment has been given by a court in a reciprocating territory;
Where decree or judgment has been given by a court in a non-reciprocating territory.
10. EXECUTION OF FOREIGN DECREE OF A RECIPROCATING TERRITORY IN
PAKISTAN:
According to Section 44A of the CPC, a decree of any superior court of a reciprocating territory shall be
executed in Pakistan as that has been passed by the district court.
“Reciprocating territory“ signifies, any territory or country outside Pakistan which the Central
Government has declared to be a reciprocating territory, by notification in the Official Gazette, and
“superior courts“, with reference to any reciprocating territory, means such courts that would be specified
in the said notification.
Therefore, a judgment which has been pronounced by a court of a reciprocating territory can be enforced
in Pakistan as a decree by filing an execution application. A certified copy of a decree of any superior
court of a reciprocating territory should be filed in a District Court, once this is done, the decree shall be
executed as if it had been passed by the District Court of Pakistan and the provisions governing execution
which are laid down in Order 21 of the CPC will be applicable to the decree.
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.
11. EXECUTION IN CASE OF DECREES FROM NON-RECIPROCATING TERRITORIES:
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 Pakistan which has
competent jurisdiction to entertain the same.
12. EXECUTION OF PAKISTANI DECREES IN A FOREIGN TERRITORY:
Section 45 of the Code is related to the execution of decrees outside the territory of Pakistan. It states that
a Court has the power to send a decree for execution to a Court outside Pakistan 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:
The decree which has to be executed should be of Pakistani Court and it should be for execution in a
foreign territory.
The Central Government should have established the transferee court in such foreign territory. The State
Government should have declared by notification in the Official Gazette that this section will apply to the
said foreign Court.
13. EXECUTION OF DECREE AT MORE THAN ONE PLACE:
There is no provision in the Code which prevents a decree-holder from executing a decree simultaneously
at more than one place against the property of the judgment-debtor. 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.
Moreover, as per Section 39 of the Code, simultaneous execution of a decree is permissive in nature as it
provides for execution of a decree either by the Court of first instance or by the Court to which it is sent
for execution.

PROCEDURE IN EXECUTION
1. PROCEDURE IN EXECUTION:
Section 51 to 54 of the Code talks about the procedure in execution. 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.
1. Mode of executing decree:
U/Sec 51
 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.
3. EXECUTION BY APPOINTING A RECEIVER:
If any other mode apart from the ones mentioned in clause (a) to (c) needs to be used in the execution of a
decree then clause (e) comes into play.
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.
In a situation where the property which is in the possession of the judgment-debtor came in the hands
of the legal representative and it has not been duly applied by him, the court will enforce the
execution of the decree against him as if the decree was to the extent passed against him personally.
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.
4. POWERS OF THE TRANSFEROR COURT:
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.
5. POWERS OF THE TRANSFEREE COURT:
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.
The Court will have the following powers, namely:—
 To send the decree for execution to another Court under section 39.
 To enforce execution of a decree against the legal representative of the deceased judgment-debtor
under section 50.
 To order attachment of a 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 XXI.
6. POWERS OF EXECUTING COURT:
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.
7. MODE OF EXECUTING A DECREE:
i. By delivery of any property (movable or immovable) specifically decreed.
ii. 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.
iii. 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.
8. EXECUTION BY APPOINTING A RECEIVER:
If any other mode apart from the ones mentioned in clause (a) to (c) needs to be used in the execution of a
decree then clause (e) comes into play.

OBJECTION ON EXECUTION

1. INTRODUCTION:

In certain cases the judgment debtor may object the procedure of execution of decree. An objection by the
judgment-debtor to the execution of a decree shall be considered by the Court under 23A.

2. WHEN OBJECTION CAN BE RAISED?

The objection can be raised in following cases.

(a)On Deposit of decretal amount in case of money suit

In the case of a decree for the payment of money, he either deposits the decretal amount in Court or
furnishes security for its payment; and

(b)Furnishing of security in certain cases

In the case of any other decree, he furnishes security for the due performance of decree.
 SCOPE OF EXECUTION OF DECREE

1. INTRODUCTION:

Implementation of litigation is also known as execution. A decree will come into existence where the civil
litigation has been instituted with the presentment of the plaint. The decree means operation or
conclusiveness of judgment. Implementation 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
motto. 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.

2. EXECUTION:

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. Simply
execution means the process for enforcing or giving effect to the judgment of the court.

3. COURTS WHICH MAY EXECUTE DECREES:

Section 38 of the Code says that a decree may be executed either by the court which passed it or by the
court to which it is sent for execution. Section 37 defines the phrase courts which passed a decree while
Sections 39 to 45 provide for the transfer for the execution of a decree by the court which passed the
decree to another court, lay down conditions for such transfer and also deal with the powers of executing
court. Therefore, all this needs to be read together.

A decree may be executed by the court which passed it or by the court to which it is sent for execution. A
court which has neither passed a decree, nor a decree is transferred for execution, cannot execute it.

4. SCOPE OF EXECUTION OF DECREE:

With regard to the powers and duties of executing courts, the following fundamental principles should be
borne in mind: As a general rule, territorial jurisdiction is a condition precedent to a court executing a
decree, and, therefore, no court can execute a decree in respect of property situate entirely outside its local
jurisdiction.

 An executing court cannot go behind the decree. It must take the decree as it stands and execute it
according to its terms. It has no power to vary or modify the terms. It has no power to question its
legality or correctness.
 In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its invalidity
could be set up wherever and whenever it is sought to be enforced, whether in execution or in
collateral proceedings.
 A decree which is otherwise valid and executable, does not become in-executable on the death of
the decree-holder or of the judgment- debtor and can be executed against his legal
representatives.
  When the terms of a decree are vague or ambiguous, an executing court can construe the decree
to ascertain its precise meaning. For this purpose, the executing court may refer not only to the
judgment, but also the pleadings of the case.
 A decree which becomes in-executable by operation of law may become executable by virtue of a
subsequent amendment in the statute and can be executed after such amendment.
 The executing court has power to mould the relief granted to the plaintiff in accordance with the
changed circumstances.
 The court executing the decree transferred to it has the same powers in executing such decree as
if it had been passed by itself.
5. WHO MAY APPLY FOR THE EXECUTION?

The following persons may file an application for execution:

 Decree-holder.
 Legal representative of the decree-holder, if the decree-holder is dead.
 Representative of the decree-holder.
 Any person claiming under the decree-holder.
 Transferee of the decree-holder, if the following conditions are satisfied:
6. AGAINST WHOM THE EXECUTION CAN BE MADE?

Execution may be taken out against the following persons:

 Judgment-debtor.
 Legal representative of the judgment-debtor, if the judgment-debtor is dead.
 Representative of or the person claiming under the judgment-debtor.
 Surety of the judgment-debtor.
An application for the execution of the decree may be filed in the court which passed the decree or in the
court to which the decree has been transferred for the execution.

7. LIMITATION:

The limitation period for the execution of a decree is 12 years from the date of the decree. The period of
limitation for the execution of a decree for mandatory injunction is 3 years from the date of the decree.

8. MODE OF EXECUTION:

The code lays down various mode of execution. After the decree-holder files an application for execution
of decree, the executing court can enforce execution. A decree may be enforced by delivery of any
property specified in the decree, by attachment and sale or by sale without attachment of the property, or
by arrest and detention, or by appointing a receiver, or by effecting partition, or any such manner which
the nature of relief requires.

9. PERCEPT:

Section 46“precept means a command, an order, a writ or a warrant. A percept 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 the judgment-debtor.
Section 46 provides that court which passed a decree may, upon an application by the decree-holder, issue
a percept to that court within whose jurisdiction the property of the judgment-debtor is lying to attach any
property specified in the percept.

A percept seeks to prevent alienation of property of the judgment-debtor not located within the
jurisdiction of the court which passed the decree so that interest of the decree-holder is safeguarded and
protected.

It is the interim attachment of the property which lies outside the jurisdiction of the court which has
passed the order. To protect the interest of the decree holder on his application will issue percept to the
court in whose jurisdiction property is situated to attach the property of the judgment-debtor. The interim
order for attachment is valid for the period of only 2 months.

10. GARNISHEE ORDER:

It is the proceeding by which the decree-holder seeks to reach money or property of the judgment-debtor
in the hands of a third party (debtor of judgment-debtor).

Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may require A
not to pay money owed by him to B, but instead to pay C, since B owes the said amount to C, who has
obtained the order.

Garnishee order is an order passed by a court ordering a garnishee not to pay money to the judgment-
debtor because the latter is indebted to the garnisher.

11. STAY OF EXECUTION:

Provisions for stay of execution of a decree are made in Rule 26 of Order XI. 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 execution of 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.

12. CONCLUSION:

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.

LANDMARK JUDGMENTS
 Where a decree grants relief to a person name in the decree, such person can enforce the decree
notwithstanding the fact that he is not party to the suit. AIR 1957 Andh Pra 172
 Court cannot go behind the decree and the same is to be executed in terms thereof unless it is
shown that a decree obtained is patently a nullity in law or that the same is passed without
jurisdiction. 1999 YLR 2282

RELEVANT QUESTIONS FROM PAST PAPERS

 Explain with illustrious the question relating to execution of the decree arising between the
parties to the Suit or their representatives which ought to decided in execution and not by a
Separate Suit. Ppsc (pcs judicial), 1997
 Write a note on
 Precept (Ppsc (psc judicial), 2000) (Ppsc (pcs judicial), 2001)
 garnishee? ppsc (pcs judicial), 2001
 Execution of decree against the government. (cj-cum Judicial Magistrate Examination 2015)
 What are the different modes of execution of a money decree, a decree for per-emption and a
decree for specific performance? recruitment examination, 2006
 Enumerates all those particular which are required to be stated in an application for execution of a
decree? competitive examination 2019
 Write particulars of five properties, which are not liable to attachment or sale in execution of a
decree? Ppsc (pcs judicial), 2002
 What are the different modes of execution of a money decree, a decree for per-emption and a
decree for specific performance? (Recruitment Examination, 2006)
 What are different methods of execution of decree in other districts and provinces? (CJ-cum
Judicial Magistrate Examination 2015)
 Discuss all specific provision of CPC for setting aside ex-parte order, judgments and decrees,
dismissal of suits in presence or absence of defendant? (Competitive Examination 2020)
 In a suit for breach of contract 21 April 2019 was fixed for evidence which was subsequently
declared a holiday. The case was called and taken up the next day when the plaintiff alone
appeared. Orders passed on 22 April 2019 that proceedings be taken ex parte and case was
adjourn to 27 April 2019, on that day the plaintiff examined his witnesses and an ex-parte decree
was passed in his favor whether the proceedings conducted by the court valid ? Discuss also
explain the remedies which are available to defendant against the said proceeding. (Competitive
Examination 2019)
 How, will you proceeding to execute the following decree:-
o For recovery of possession of immovable property.
o For specific performance of an agreement to sell.
o Recovery of money.
(Recruitment Examination, 2006)