PRESENTATION ON:

APPLICATION FOR EXECUTION OF A DECREE:

WHO MAY APPLY FOR EXECUTION,
AGAINST WHOM EXECUTION MAY BE SOUGHT,
PROCEDURE,
EXECUTION OF CROSS DECREES(ORDER XXI RULES 10-23)
INTRODUCTION

Execution is the last stage of any civil litigation. There are three stages in litigation-
a. Institution of litigation,
b. Adjudication of litigation,
c. Implementation of litigation.

Implementation of litigation is also known as execution. Decree means operation or conclusiveness of judgment. A decree will
be executed by the court which has passed the judgment. In exceptional circumstances, the judgment will be implemented by
other court which is having competency in that regard. Execution enables the decree-holder to recover the fruits of the
judgment. The principles governing execution of decree and orders are dealt with in Sections 36 to 74 and Order 21 of the CPC.

The execution is complete when the decree-holder gets money or other thing awarded to him by the judgment, decree or order
of the Court. Order XXI of the CPC is the lengthiest order provides detailed provisions for making an application for execution
and the manner that, how they are to be entertained, dealt with and decided. All proceedings in execution commence with the
filing of an application for execution. Such application should be made to the Court who passed the decree or where the decree
has been transferred to another Court, to that Court. Once an application for Execution of decree is received by the Court, it
will examine whether the application complies with the requirements of Rules (11 to 14). If they complied with, the Court must
admit and register the application.
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.
In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of the code relating to the execution of
orders and decree and stated that the Code contains elaborate provisions which deal with all questions regarding executability of
a decree in all aspects. The Court further 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.

Who may apply for Application for Execution of decree?

All proceedings in Execution commence with the filing of an application for Execution. Following persons may file an
application for Execution:
Decree-holder
Legal representative of the decree holder
Representative of a person claiming under the decree-holder
Transferee of the decree-holder, if the following conditions are satisfied:
a)The decree must have been transferred by an assignment in writing or by operation of law;
b)The application for execution must have been made to the court which passed the decree.
c)Notice and opportunity of hearing must have been given to the transferor and the judgement-debtor in case of assignment by
the transfer.
Against whom the execution can be made?

Execution may be taken out against the following persons:

i.Judgement-debtor
ii.Legal representative of the judgement-debtor, if the judgement-debtor is dead
iii.Representative of or the person claiming under the judgement-debtor
iv.Surety of the judgement-debtor

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.

Execution Application and Res Judicata: After the Amendment Act of 1976 issue of Res Judicata is now specifically dealt
with as Section 11 with Explanation VII specifically provides that the provisions of res judicata will apply to execution
proceedings also.

The procedure of Execution

1.)A written application is to be filed in the court that originally passed the decree or the court to which it has been
transferred for execution. It shall contain all the essential information such as suit number, name of parties, date of the
decree, any appeal preferred or pending, amount due, name of the person against whom execution is sought, and most
importantly the mode in which the assistance of the court is required.
On filing the Application a lodging number is given for raising of defects – Time limit three weeks from the filing of
Application, defects are raised by the registry.

2.)On raising of defects, the Decree holder must remove all defects and get the same certified by the registry – Time limit
one week from raising of the defect by the registry.

3.) After the executing court has satisfied itself that all defects if any have been cured in the application and has
provisionally evaluated, without prejudice to the right of the parties, the correct amount for the execution of the decree
concerning the value of the immovable property, it finally gives a number to the Application for further movement.
On obtaining of a final number to the Application, process or a show-cause notice is issued by the registry to the judgment
debtor, only if, the execution petition is filed after 2 years of the passing of the decree, or is against a legal representative or
assignee or receiver where DH is declared to be insolvent – Time limit two weeks from date of the final number.

4.) Where the person to whom notice is issued under rule 22 does not appear or does not show cause to the satisfaction of the
court why the Decree should not be executed, the court shall order the Decree to be executed, by the issuance of Warrant of
Sale and/or Warrant of Attachment.
Where such person offers an objection to the execution of the decree, the court shall consider such objection and make such
order as it thinks fit – Time limit is about four weeks to eight weeks for the hearing to take place and decision of the registry.
5.) Once after the court has decided upon the claims or objections (if any), raised by the judgment debtor, against the
execution of a decree, the DH shall move an application requesting attachment of immovable property preceding the sale.
Though sale can take place without attachment, this shall further help in protecting the interests of the Decree Holder –
Time limit is about two weeks from the decision on claims/objection if any and/or final numbering of the Application,
whichever is applicable.

6.) Once the Warrant of Attachment is issued, the same be drawn in writing and posted at a conspicuous place adjacent to
the immovable property in question, and also at collector's office if the said property is a land paying revenue to the
government.
Besides affixing Warrant of Attachment, it shall be publicly proclaimed with the beating of drums and other means. – The
time limit is two weeks from the issuance of the Warrant of Attachment.

7.) Based on the report submitted by the bailiff of Sheriff office, the registry shall issue a Warrant of Sale order in the name
of the bailiff to publicly auction as per the details mentioned in the warrant on the date and place specified and report back
to court with an endorsement certifying how sale has been executed or the reason why it has not been executed. – The time
limit is two weeks from the submission of the report.
Rule 10 Order XXI of Code of Civil Procedure 1908 "Application for execution"
Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any)
appointed in this behalf, or if the decree has been sent under the provisions here in before contained to another Court then to
such Court or to the proper officer thereof.

Rule 11 Order XXI of Code of Civil Procedure 1908 "Oral application"

(1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the
passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to eye preparation of a
warrant if he is within the precincts of the Court.

(2) Written application- Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in
writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted
with the facts of the case, and shall contain in a tabular form the following particulars, namely :-
(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties
subsequently to the decree;
(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such
application and their results;
(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-
decree, whether passed before or after the date of the decree sought to be executed;
(h) the amount of the costs (if any) awarded;
(i) the name of the person ageless whom execution of the decree is sought; and
(j) the mode in which the assistance of the Court is required whether-
(i) by the delivery of any property specifically decreed;
(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require.

(3) The Court to which an application is made under sub-rule (2) way require the applicant to produce a certified copy of the
decree.

Rule 11A Order XXI "Application for arrest to state grounds"

Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by
an affidavit stating, the grounds on which arrest is applied for.

Rule 12 Order XXI "Application for attachment of movable property not in judgment-debtor's possession"
Where an application is made for the attachment of any movable properly belonging to a judgment-debtor but not in his
possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a
reasonably accurate description of the same.
Rule13 Order XXI “Application for attachment of immovable property to contain certain particulars”— Where an
application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot
—
(a) a description such property sufficient to identify the same and, in case such property can be identified by boundaries or
numbers in a record of settlement or survey, a specification of such boundaries or numbers; and
(b) a specification of the judgment-debtor's share or interest in such property to the best of the belief of the applicant, and so
far as he has been able to ascertain the same.

Rule14 Order XXI “Power to require certified extract from Collector's register in certain cases”— Where an application is
made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to
produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing
any transferable interest in, the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered
proprietors.

Rule15 Order XXI “Application for execution by joint decree-holders”—

(1) Where a decree has been passed jointly in favour of more persons than one, any one or more such persons may, unless the
decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or,
where of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall
make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.
Rule16 Order XXI “ Application for execution by transferee of decree”—
Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the
decree in transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the
Court which passed if, and the decree may be executed in the same manner and subject to the same conditions as if the
application were made by such decree-holder :

Provided also that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application
shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their
objections (if any) to its execution :
Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it
shall not be executed against the others.

Rule17 Order XXI “ Procedure on receiving application for execution of decree”—

(1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain
whether such of the requirement's of rules 11 to 14 as may be applicable to the case have been complied with; and
if, they have not been complied with, [the Court shall allow] the defect to be remedied then and there or within a time to be
fixed by it. [(1A) If the defect is not so remedied, the Court shall reject the application:

Provided that where, in the Court, there is some inaccuracy as to the amount referred to in clauses (g) and (h) of sub-rule (2) of
rule 11, the Court, instead of rejecting the application, decide provisionally (without prejudice to the right of the parties to have
the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for
the amount so provisionally decided.]
(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in
accordance with law and presented on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or initialled by the Judge.
(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which
it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of
the application:
Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be,
correspond with the amount due under the decree.

Rule18 Order XXI “Execution in case of cross-decrees”—

(1) Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two sums of
money passed between the same parties and capable of execution at the same time by such Court, then—
(a) if the two sums are equal, satisfaction shall be entered upon both decrees; and
(b) if the two sums are unequal execution may be taken out only by the holder of the decree for the larger sum and for so much
only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the
larger sum as well as satisfaction on the decree for the smaller sum.
(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of
judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.
(3) This rule shall not be deemed to apply unless—
(a) the decree holder in one of the suits which the decrees have been made is the judgment-debtor in the other and each party
files the same character in both suits; and
(b) the sums due under the decrees are definite.
What is cross-decree and its execution ?
Cross-decrees are decrees held by the plaintiff and the defendant against each other in different suits so that a decree-holder in
one suit is the judgment-debtor in the other.
Such decrees are set off against each other in the execution proceedings. Thus where A holds a decree against B for Rs. 5,000/-
and B holds a decree against A for Rs. 3,000/-, both the decrees will be set off when A and B each applies for execution of his
decree to a court which has jurisdiction to execute both the decrees.
B, the holder of the decree for the smaller amount, will not be allowed to take out execution of his decree and execution will be
allowed to A’s decree to the extent of Rs. 2,000/- only.

*Rule 18 enacts that cross-decrees for the payment of money shall be set-off against each other. If the amounts under two
decrees are equal then both the decrees shall satisfy each other and full satisfaction will be recorded and no payment is required
to be made by any party and no execution will be allowed to be taken out. If, on the other hand, the amounts under the two
decrees are unequal then full satisfaction will be recorded upon the decree for the smaller amount, and the execution will be
allowed only for the balance.

In the case of Hazari Ram v. Rai Bahadur Bansidhar, AIR 1937 PC 39, in the following words : “It is true that under Rules 18
to 20 the set-off of decrees is not a discretionary matter depending upon equitable considerations such as may emerge from the
circumstance that both decrees arise out of the same transaction. Whatever they arise from, circuity of proceedings thereunder
can be avoided and should be avoided. This is the principle of the rules.
Illustrations
(a)A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in case A fails to deliver
certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.

(b) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtain a decree for Rs. 1,000 1,000 against B. C
cannot treat his decree as a cross-decree under this rule.

Rule19 Order XXI “Execution in case of cross-claims under same decree”—

Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of
money from each other, then—
(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and

(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only
as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.

Rule20 Order XXI “ Cross-decrees and cross-claims in mortgage-suits”— The provisions contained in rules 18 and 19 shall
apply to decrees for sale in enforcement of a mortgage or charge.

Rule21 Order XXI “Simultaneous execution”— The Court may, in its discretion, refuse execution at the same time against
the person and property of the judgment-debtor.
Rule22 Order XXI “Notice to show cause against execution in certain cases”—
(1) Where an application for execution is made,—
(a) more than[two years] after the date of the decree, or
(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under
the provisions of section 44A,
(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent,
the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show
cause, on a date to be fixed, why the decree should not be executed against him :
Provided that no such notice shall be necessary in consequence of more than [two years] having elapsed between the date of
the decree and the application for execution if the application is made within [two years] from the date of the last order against
the party against whom execution is applied for, made on any previous application for execution,
(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree
without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would
cause unreasonable delay or would defeat the ends of justice.

Rule 22A Order XXI “Sale not to be set aside on the death of the judgment-debtor before the sale but after the service of the
proclamation of sale”.— Where any property is sold in execution of a decree, the sale shall not be set aside merely by reason
of the death of the judgment-debtor between the date of issue of the proclamation of sale and the date of the sale
notwithstanding the failure of the decree-holder to substitute the legal representative of such deceased judgment-debtor, but, in
case of such failure, the Court may set aside the sale if it is satisfied that the legal representative of the deceased judgment-
debtor has been prejudiced by the sale.
Rule 23 Order XXI “Procedure after issue of notice”—

(1) Where the person to whom notice is issued under [rule 22] does not appear or does not show cause to the satisfaction of
the Court why the decree should not be executed the Court shall order the decree to be executed.

(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make
such order as it thinks fit.

CONCLUSION

In view of above discussion, it can be summarized that O.XXI of CPC is an independent Code in itself and it not only provide
procedure to be followed by the decree­holder to get the fruits of the decree, at the same time it provides an opportunity to the
judgment ­debtor or the third party/ objection petitioner to raise the grievances or objection in the execution proceeding itself.
Recourse to independent proceedings by filling a separate suit is clearly prohibited. Therefore, objections if any , are raised by
the judgment ­debtor or the third partly in execution proceedings, the same are required to be adjudicated by executing court
following the same procedure as if it was a suit and the orders by the executing court having the force of a decree.