Project

Submitted by
Ekta Jain

Batch 2020-25, Group-B, BBA.LL.B., PRN-20010224255

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

In
March, 2024

Under the guidance of

Mr. Saurabh Upadhya
(Course-In-Charge)
&
Mr. Shwetank Sailakwal
(Co-Faculty)

Symbiosis Law School, NOIDA

Civil Procedure Code and Limitation Act II
 Modes of Execution of Decree

Introduction

The principles governing the implementation of judgments extend to decrees as well. Seeking
redress through the execution of decrees is a crucial aspect of legal proceedings. It is
imperative to execute decrees meticulously to ensure that affected parties receive appropriate
relief promptly, thereby expediting the overall process. The execution of decrees is addressed
in Order XXI of the Code of civil Procedure (hereinafter referred as “CPC”).1

Selection of Execution Method

Section51 of the CPC lists various methods available for executing a decree, including:
1. Transferring specifically mentioned property as directed by the decree.
2. Attaching and subsequently selling property.
3. Selling property without prior attachment.
4. Arresting the judgment debtor.
5. Detaining the judgment debtor.
6. Appointing a receiver.

Furthermore, Section 47 of the CPC requires the court to address specific matters before
executing a decree, such as:
1. Carrying out the decree.
2. Ensuring the decree's fulfillment.
3. Discharging the decree.
4. Determining party representation.

It is the responsibility of the decree-holder to submit the execution application, which can be
presented either orally or in writing.

Modes of Executing Decrees

Executing a decree involves adhering to the relevant regulations outlined in Order 21.
Pursuant to Order XXI Rule 10, the decree-holder must submit an application to the court if
they wish to proceed with execution.

1. Delivery of Property

The Delivery of property is a well-known method for enforcing a decree. Order

XXI Rule 31 and Section 51(a) stipulate that when movable property, which has
been seized, is sold, it must be transferred to the purchaser. Rules 35 and 36 of
Order XXI provide guidance for immovable property decrees:

1
Mahadeo Prasad v. Ram Lochan, AIR 1981 SC 416.
 i. If a decree involves delivering immovable property, it can be handed over
to the rightful person or their representative.
ii. Before delivery, any individual bound by the decree who refuses to vacate
the property must be removed.
iii. If the decree involves joint possession of immovable property, possession
is granted upon presenting a visible copy of the warrant.
iv. In cases where the current possessor obstructs access to the property, the
court can take necessary actions, such as removing locks or doors, to
facilitate possession by the decree-holder, ensuring proper warning is
given to any women on the premises.

In the Mumtaz Jehan v. Insha Allah2 case, it was determined that under Rule
35(1), actual possession is granted by removing all individuals obligated by the
decree. Conversely, Rule 36 denotes symbolic possession where the property is
occupied by tenants entitled to occupancy and not obligated by the decree to
surrender possession.

In the Ratan Lal Jain v. Uma Shankar Vyas3 case, it was established that the
former refers to the physical delivery of possession, while the latter pertains to the
delivery of formal or symbolic possession.

The Shamsuddin v. Abbas4 case further clarified the distinction between the two.
It highlighted that in actual possession, the person isn't physically dispossessed
from the property received in execution of the decree. However, delivery under
Rule 36 represents formal or symbolic possession in regard to the person in actual
possession, but against the individual obligated by the decree, it signifies
possession delivery.

2. Attachment and Sale of“Property

Section 60-64 and Rules 41-57 of the CPC outlines the properties subject to
attachment and sale during decree enforcement. These include land, buildings, goods,
money, financial instruments like banknotes and cheques, as well as debts, shares, and
other saleable assets owned by the judgment-debtor, movable or immovable.

The main purpose of property attachment is to inform the judgment-debtor not to

transfer the property to anyone, and to alert the public against acquiring or engaging
with the attached property of the judgment-debtor during execution proceedings.5

Section 61 of the Code offers partial exemption for agricultural produce.

2
AIR 1983 Delhi 65.
3
2002 (2) SCC 656.
4
AIR 1971 ALL 117.
5
Hamda Ammal v. Avadiappa Pathar, (1991) 1 SCC 715 at p. 718.
 Under Order XXI, Rule 3, if immovable property spans multiple court jurisdictions,
one court can handle its attachment and sale. Rule 13 stipulates the necessary
information for attaching immovable property, while Rule 31 outlines methods for
executing decrees on specific movable property, including seizure, delivery, or civil
imprisonment of the judgment-debtor.

Rule 41 empowers courts to examine the property of the judgment debtor, allowing
for the submission of relevant documents and oral examinations to assess property
value for decree satisfaction.

Section 64(1) of the law states that any private transfer of property after it has been
attached is not valid with respect to claims enforceable under the attachment.6

 The transfer isn't universally void, but it lacks validity concerning claims
enforceable under the attachment.
 The primary purpose of this provision is to prevent fraudulent actions against
decree-holders and to protect the rights of attaching creditors and other
creditors entitled to satisfaction from the judgment-debtor's assets.

Section 74 authorizes the arrest of judgment-debtors who impede or prevent the

decree-holder from gaining possession of immovable property, with the court having
the power to impose a potential thirty-day imprisonment.”

3. Arrest and Detention

Sections 55-59 and Rules 30-41 of the CPC detail the regulations regarding the arrest
and detention of judgment debtors. Within this section:

 Judgment debtors may be arrested at any time and brought before the Court.
 Detention must take place in a civil prison.
 No officer is allowed to enter a dwelling-house for arrest between sunset and
sunrise.
 Release of the judgment debtor is obligatory upon payment of the owed
amount.
 Order XXI Rule 37 provides discretion to the judgment debtor to contest
prison detention. This rule specifies:
 In cases where arrest and detention are part of decree execution for monetary
payment, the Court allows the judgment debtor to present arguments against
prison detention.
 The judgment debtor receives notice to appear before the Court on a specific
date to present their case. This acknowledgment of the principle of fairness
ensures that individuals are not judged without the opportunity to be heard.7

6
Om Prakash v. Ganga Sahai (1987) 3 SCC 553.
7
Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470.
  Notice may be omitted if it's deemed necessary for execution or if there's a risk
of the judgment debtor fleeing.

Rule 38 requires that the arrest warrant instructs the authorized officer to bring the
judgment debtor to court within a reasonable period. Rule 39 deals with subsistence
allowance, obligating the decree-holder to finance the judgment debtor's upkeep in
prison until their court appearance. Section56 provides protection to women from
arrest for monetary decrees. The monthly allowance is either set by Section57 or
determined by the court. Payments must be made upfront to the authorized officer
initially and later to the prison officer. Amounts disbursed for subsistence are treated
as costs in the suit.

Rule 40 outlines post-notice proceedings after the judgment debtor's appearance.

Section58 specifies detention and release rules:

 Detention up to three months for decree amounts exceeding one thousand

rupees.
 Detention up to six weeks for amounts between five hundred and one thousand
rupees.

Section59 allows release on grounds of illness.

In typical circumstances, a judgment-debtor who has been released cannot be arrested

again for the same decree. However, if the release occurred due to a mistake by jail
authorities, re-arrest is permissible. Similarly, if the judgment-debtor couldn't be
detained because the decree-holder failed to pay the subsistence allowance, re-arrest is
permissible. Additionally, release on medical grounds doesn't prevent re-arrest.
Nonetheless, the total detention period cannot exceed the maximum limit set by the
Code.
4. Appointment of receiver
Execution through the appointment of a receiver, termed equitable execution, is solely
at the court's discretion and cannot be demanded as a guaranteed right.8

The selection of a receiver during execution is viewed as an extraordinary solution,

requiring a compelling justification to support its application.

Order XL of the CPC encompasses provisions regarding the appointment of a

receiver, with the Court determining suitable compensation for their services. A
receiver, an impartial individual, may be appointed by the Court either before or after
a decree for various purposes including:

 Managing and safeguarding the property.

8
Onkarlal v. V.S. Rampal, AIR 1961 Raj. 179.
  Collecting rents and profits.
 Administering and utilizing rents and profits.
 Executing documents. The Court may grant additional powers as deemed
appropriate.

The order outlines several duties of a receiver, such as:

 Providing any required security to the Court.
 Submitting accounts at specified intervals and in the format directed by the
Court.
 Assuming responsibility for any property loss due to wilful default or gross
negligence.
 Receiving payment as directed by the Court.

In instances of loss caused by the receiver, the Court may attach and sell the receiver's
property to recover losses, providing the remaining amount to the receiver after
compensation. Moreover, in cases involving land that pays revenue to the
Government or land with assigned or redeemed revenue, the Court has the authority to
appoint a Collector as the receiver, provided they consent to the appointment.

Conclusion

The implementation of judgments and decrees is vital in ensuring timely and effective relief
for affected parties within legal proceedings. Order XXI of the CPC meticulously addresses
the execution of decrees, outlining various methods and procedures to enforce court orders.
From delivery of property to attachment and sale, as well as arrest and detention of judgment
debtors, each aspect is governed by specific rules and regulations to ensure fairness and
efficiency in the legal process.

Furthermore, the appointment of a receiver provides an additional mechanism for equitable

execution, although it is at the discretion of the court and necessitates compelling
justification. Through Order XL, the CPC offers guidelines for the appointment and duties of
receivers, ensuring proper management and safeguarding of property involved in legal
disputes.

Overall, the thorough provisions outlined in the CPC underscore the importance of executing
decrees with diligence and fairness, ultimately upholding the integrity of the legal system and
providing justice to all parties involved.