Name: LAKSHAY PUGALIA PRN: 20010224251 Division: “A” Batch: 2020-25

SCOPE AND POWER OF EXECUTING COURT

INTRODUCTION
Execution courts in India face challenges regarding objections to decrees
passed by courts of law, often raised by judgment debtors or their
representatives. The execution stage of a decree is crucial as it entails rights
granted to the owner of the decree and obligations of
the debtor of the judgement. “Section 47 of the Code of Civil Procedure,
1908” (hereinafter CPC)1, addresses objections to execution, discharge, and
satisfaction of decrees, encompassing various questions pertinent to
execution proceedings. Notably, “Section 47” mandates that all matters
related to execution, discharge, or satisfaction of a decree between parties
must be determined within the same execution proceedings, barring the
necessity of separate suits. This grants the executing court exclusive
jurisdiction over execution matters. The Supreme Court's ruling in
“Harnandrai Badridas v. Debidutt Bhagwati Prasad”2 emphasizes a
liberal interpretation of Section 47, affirming that once a decree is passed,
all execution-related matters fall within the purview of the executing court,
precluding the filing of separate suits for the same purpose.

Jurisdiction
Within the realm of jurisprudence, there exists a fundamental tenet dictating
that the adjudicating tribunal refrains from scrutinizing the decree, signifying
that once the decree is rendered by a tribunal, the enacting tribunal abstains
from tampering with the determinations of the tribunal that issued the
decree. The enacting tribunal is tasked with effectuating the decree in
consonance with and in deference to the tribunal that promulgated it.
However, there are two circumstances wherein the enacting tribunals may
opt not to enforce the decree, namely:

a. The decision was obtained by deceitful tactics.

b. There is no innate jurisdiction for the tribunal that issued the decision.
1
The Code of Civil Procedure, 1908
2
2010 (4) CTC 161
Inherent Jurisdiction:
Subject matter jurisdiction is synonymous with inherent jurisdiction,
delineated in "section 9 of CPC".3 It is alternatively referred to as
"jurisdiction ratione materia." Inherent jurisdiction of a court pertains to its
competence in adjudicating matters falling within a particular category
associated with a specified subject domain. The paramount consideration lies
in the fact that any decree pronounced by the court lacking subjective or
inherent jurisdiction is devoid of validity and legal effect.

In the case of "Chiranjilal Srilal Goenka vs Jasjit Singh" 4, the Honorable

Supreme Court of India remarked that a decree rendered by a court lacking
jurisdiction over the subject matter strikes at the heart of the issue. Such a
decree is deemed null and void, holding no legal existence.

The executing court's jurisdictional scope:

The term "execution" denotes the enforcement or enactment of the court's
ruling or adjudication. A decree signifies the operation or finality of a
judgment, and the execution of a decree is deemed fulfilled when the
decree-holder expresses contentment with its enforcement against the
judgment debtor. It is firmly entrenched in legal doctrine that the executing
court is vested solely with the authority to execute the decree in accordance
with the procedures delineated in "ORDER 21 CPC." 5 Consequently, the
executing court lacks the power to annul the order; rather, it can only
address the issues delineated in "section 47 of CPC 1908."

Courts which can execute decrees

According to “Section 38 of the Code”, a decree can be executed either by
the original court or by the court to which it has been transferred for
execution. “Section 37 clarifies the term court which passed a decree," 6
encompassing various scenarios: the original court, the appellate court if it
passed the decree, or the court with jurisdiction at the time of execution if

3
Section 9, The Code of Civil Procedure, 1908
4
1993 SCC (2) 507 JT
5
Order 21, The Code of Civil Procedure, 1908
6
Section 37, The Code of Civil Procedure, 1908
the original court no longer exists. The court's jurisdiction for execution
extends even if the area falls under a different court's jurisdiction later,
provided the latter had jurisdiction over the suit during the execution
application. In essence, the court which initially handled the case retains
jurisdiction for execution, regardless of territorial shifts, while the court
where the area is transferred also gains execution jurisdiction if it had trial
jurisdiction at the time of execution application.

Transfer of decree for execution

The Transfer of Decree for Execution outlines the procedure for transferring
a decree to another court for execution. The court of first instance may grant
such a transfer if specific conditions are met: if the judgment-debtor
operates a business, resides, or works for gain within its jurisdiction, if the
judgment-debtor's property falls within its local limits, if the decree involves
immovable property located outside its jurisdiction, or if the court deems it
appropriate for execution by another court, with reasons recorded.
Additionally, the court of first instance holds the authority to initiate this
transfer to a subordinate court of competent jurisdiction. However, if
execution involves a person or property beyond its territorial jurisdiction, the
court lacks the power for execution. Notably, the discretion lies with the
court, as highlighted in the case of “Mahadeo Prasad Singh v. Ram
Lochan”7, where it was clarified that Section 39's provisions aren't
obligatory, granting the court judicial discretion in such matters, without
conferring any inherent right upon the decree-holder for transfer”.

POWERS OF EXECUTING COURT

In appropriate cases, the Executing Court may:

a. provide notice and order the garnishee(s) to deposit the money owed t
o the judgement debtor in the appropriate court;
b. allow the owner of the decree to view all of the judgement debtor's ass
ets and documents in front of the local commissioner who will be chose
n by the judge.
c. a. provide the debtor of the judgement company's accountant instructi
ons to provide an assessment on the judgement debtor's operations;
d. allow the person who obtained the decree to deliver to the judgement
debtor's auditors with questions;
7
1980 SCC (4) 354
 e. allow the decree-holder to review the judgement debtor's accounts
with the Income Tax and other agencies in order to confirm the
declarations that the judgement debtor made;
f. designate a receiver for the judgement debtor's associated property;
and
g. under severe circumstances, designate a chartered accountant as a
Local Commissioner to examine all of the judgement debtor's
documents and provide the judiciary with an assessment regarding the
debtor's affairs

Entities for the intent of section 47

Under section 47, the phrase "Parties" shall be interpreted broadly and
benevolently. It includes everyone whose interests could be affected by the
decree's implementation, not only the decree holder and judgement debtor.

In addition to the parties involved in the litigation, it includes the following

people as parties. This includes the original lawsuit's plaintiff and defendant,
whose cases were either dismissed or were dismissed against.

In this section's explanation 2, the term "parties" is interpreted broadly. In

an execution sale, even the buyer of the property will be considered a party.

PROCEDURE IN EXECUTION:
The procedure in execution, outlined in “Sections 51 to 54”8, empowers the
court to enforce decrees. “Section 51” grants the court authority to execute
decrees either orally or in writing, offering flexibility to the decree-holder.
Decrees can be executed through various means:
providing certain real estate, selling and attaching real estate, being arreste
d and held, and designating a receiver for it, or through a residuary clause
when other methods are impractical. “Section 52” allows enforcement
against the legal representatives of deceased debtors, either through their
property or personally if they mismanage assets. Exceptions apply if legal
representatives evade payment or misuse assets. “Section 53” clarifies the
liability of ancestral property, holding legal representatives accountable only
if they receive such property. “Section 54” addresses partition decrees,
specifying that the collector oversees the division of revenue-paying

8
Section 51-54, the Code of Civil Procedure, 1908
property, with civil courts stepping in if the collector refuses. Overall, these
sections delineate a comprehensive framework for executing decrees,
ensuring effective enforcement of court orders.

PROCESS FOR EXECUTION

The process for execution as outlined in “Order 21 rules 24 and 25”9 involves
several key aspects. “Rule 24” grants the court the authority to delay the
issuance of execution process and to allow time for the judgment-debtor in
certain cases. This rule specifies the procedure for executing a decree,
emphasizing the court's exercise of judicial discretion which cannot be
overridden by administrative orders from district judges.
It requires that execution be completed by the date specified on the instrum
ent, making warrants for delivery of possession worthless after they expire.

Once the execution process is initiated, “Rule 17 of Order 21” prohibits

amendments to the execution application. Even if amendments aim to alter
the nature of execution, neither “Section 151 nor Section 153” can be
invoked. In cases where the decree-holder passes away, the execution
proceedings can continue without a possession certificate under “the Indian
Succession Act”10, even if legal heirs are not formally added to the record.

However, it's crucial to note that delivering possession to the decree-holder

without notifying the judgment-debtor is deemed improper. A judgment-
debtor may apply for redelivery of possession if they were not notified of the
execution proceedings, with courts granting compensation in some instances
but upholding possession for the decree-holder.

MODE OF EXECUTION.
CPC outlines various modes of execution for enforcing a decree. Upon the
decree-holder's application, the executing court can enforce execution
through several means. These include providing specified real estate,
attaching and selling (or selling without attachment) real estate, detention
and imprisonment, appointing a receiver to handle the property, effecting
partition, or other methods as required by the nature of relief.

1. Arrest and detention of the judgment-debtor can be executed for

decrees involving payment of money. The judgment-debtor can be
9
Order 21 rules 24-25, The Code of Civil Procedure, 1908
10
The Indian Succession Act 1925
 arrested at any time, but certain limitations apply regarding entering
dwelling houses. Notably, no arrest order is issued for amounts below
Rs. 2000, and specific individuals, such as women or minors, cannot
be arrested and detained for money decrees.

2. Attachment and sale of property is another mode of execution. The

code details the procedure for attachment, including what properties
are liable and exempt from attachment, especially emphasizing the
attachment of agricultural produce for agriculturalists. It also
addresses scenarios where multiple courts attach the same property
and the subsequent hierarchy.

3. A "percept" is a command issued by the court that passed the decree

to attach property located beyond its jurisdiction, safeguarding the
decree-holder's interest. This interim attachment lasts for two months.

4. Garnishee orders allow the decree-holder to access money or property

of the judgment-debtor held by a third party. It prevents the third
party from paying the judgment-debtor directly.

5. Sale of property can be with or without prior attachment. Detailed

rules govern the sale process, including the appointment of an officer
for sale, proclamation of sale, time and adjournment of sale,
restrictions on bidding, and specific procedures for sale of movable and
immovable property.

Various rules cover the sale process for movable and immovable property,
including postponement, default by auction-purchaser, setting aside sale,
confirmation of sale, and issuance of sale certificates, along with the effects
of the sale as declared in “Section 65 of CPC”11.

What Executing Court cannot decide:

The executing court lacks the authority to nullify decrees void due to
jurisdictional issues or any other similar reasons; only a competent court can
do so through a separate suit. Decrees obtained through fraud or collusion
must be challenged in a separate suit in the appropriate jurisdiction.

11
Section 63, The Code of Civil Procedure, 1908
Precedents like “S. Bhaskaran vs Sebastian”12 and “Kiran Singh vs
Chaman Paswan”13 emphasize that the executing court cannot exceed the
decree's scope; it must execute it as is. “Section 47 of CPC” aims to
consolidate proceedings related to decree execution, ensuring expeditious
resolution within execution proceedings, with revision to the High Court
permitted under “Section 115 of the CPC”14 but not appealable. The
executing court cannot delve into the merits of the case or rectify trial
errors; its jurisdiction is limited to matters concerning the execution of the
decree.

CONCLUSION
In conclusion, the research paper has delved into the intricate workings of
executing courts in India, shedding light on their scope, jurisdiction, powers,
and procedural intricacies. Through an examination of legal principles,
precedents, and provisions outlined in the CPC, the paper elucidates the
paramount importance of executing courts in ensuring the enforcement and
implementation of judicial orders and decrees.

The paper underscores the exclusive jurisdiction conferred upon executing

courts, as mandated by CPC, thereby consolidating all matters related to
execution, discharge, or satisfaction of decrees within the purview of the
executing court. Furthermore, the paper navigates through the procedural
framework governing execution proceedings, elucidating the roles, powers,
and limitations of executing courts. The research highlights the varied
responsibilities entrusted to executing courts in seeking of righteousness,
from the transfer of decrees for execution to the various means of execution
comprising the attachment and disposal of assets, captivate and
imprisonment, and assignment of receivership.

While delineating the powers and functions of executing courts, the paper
also underscores the limitations inherent in their jurisdiction, emphasizing
that executing courts cannot adjudicate on the merits of a case or rectify
trial errors but are bound to execute decrees as per their scope. Through a
nuanced examination of legal provisions and precedents, the research paper
provides a comprehensive understanding of the role and significance of
executing courts in the Indian legal system, emphasizing their vital role in
12
2019 SC 1038, 2019 (9) SCC 161
13
1954 AIR 340, 1955 SCR 117
14
Section 115, The Code of Civil Procedure, 1908
upholding the rule of law and ensuring the right of every individual to
equitable treatment.