Execution Of A Decree : All You Need To Know About
Sachin Kaushik, Advocate
Punjab & Haryana High Court, Chandigarh
Date : 08/06/2020 - Mobile No. 9728302339
Execution Of A Decree : All You Need To Know AboutINTRODUCTION As the title of this article suggests, in this article, we will discuss some important heads of procedure incorporated under Code of Civil Procedure (hereinafter to be referred as CPC or Code) for executing a decree passed by a civil court in India. Suppose A files a suit against B for Rs 100,000/- and obtains a decree against him. Here A is the judgement-creditor or decree-holder. B is the judgement-debtor, and the amount of Rs 100,000/- is the judgement-debt or the decretal amount. Since the decree is passed against B, he is bound to pay Rs 100,000/- to A. Supposedly in spite of the decree, B refuses to pay the decretal amount to A. Now, what remedy is left with A to recover his said amount? A can recover the said amount from B by executing the decree through judicial process. The principles governing execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21 of the CPC (procedural provisions). Order 21 contains 106 Rules and is the longest of all Orders in the Code. EXECUTION: MEANING The term "execution" has not been defined in the code. In its widest sense, the expression "execution" signifies the enforcement or giving effect to a judgement or order of a court of justice. In other words, execution is the enforcement of decrees and orders by the process of the court, so as to enable the decree-holder to realise the fruits of the decree. In Ghan Shyam Das v. Anant Kumar Sinha, (1991) 4 SCC 379, dealing with the provisions of the Code relating to execution of decrees and orders, the Hon'ble Apex Court stated, "So far as the question of executability of a decree is concerned, the Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21 of the Code take care of different situations providing effective remedies not only to judgement-debtors and decree-holders but also to claimant objectors. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court." COURTS BY WHICH DECREES MAY BE EXECUTED: SECTION 38 A decree may be executed either 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. Section 37 of the Code defines the expression "court which passed a decree" and the following courts fall within the said expression:
(i) The court of first instance which actually passed the decree;
(ii) The court of first instance in case of appellate decrees;
(iii) Where the court of first instance has ceased to exist, the court which would have jurisdiction to try the suit at the time of execution and
(iv) Where the court of first instance has ceased to have jurisdiction execute the decree, the court which at the time of execution would have had jurisdiction to try the suit.But, sometimes a peculiar situation arises. Suppose court A passed a decree, and thereafter a part of the area within the jurisdiction of court A is transferred to court B. In such a situation the following two questions arise:
a) whether court A continues to have jurisdiction to entertain an application for execution? And
b) whether court B (to which the area is transferred) can also entertain an application for execution without a formal transmission of the decree from court A to B?The first question must now be answered in the affirmative after the pronouncement of the Supreme Court in the case of Merla Ramanna v. Nallaparaju, AIR 1956 SC 87, wherein the court held:
"It is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter being transferred subsequently to the jurisdiction of another court."With regard to the second question, the Explanation added to Section 37 by the Amendment Act of 1976 makes it amply clear that both the courts would be competent to entertain an application for execution of a decree. TRANSFER OF DECREE FOR EXECUTION: SECTIONS 39-42; ORDER 21 RULES 3-9 As a general rule, the court which passed the decree is primarily the court to execute it, but such court may send the decree for execution to another court either suomotu or on the application of the decree-holder if any of the following grounds exists:
(i) The judgement-debtor actually and voluntarily resides or carries on the business, or personally works for gain, within the local limits of jurisdiction of such court; or
(ii) The judgement-debtor does not have property sufficient to satisfy the decree within the local limits of the jurisdiction of the court which passed the decree but has property within the local limits of such court; or
(iii) The decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of such other court; or
(iv) The court which passed the decree considers it necessary for any other reason to be recorded in writing that the decree should be executed by such other court.The decree-holder has no vested or substantive right to get the decree transferred to another court. The provisions of Section 39 are not mandatory and the court has discretion to decide it. Sub-section (3) of Section 39 clarifies that the transferee court must have pecuniary jurisdiction to deal with the suit in which the decree was passed. Likewise, sub-section (4) of Section 39 further makes it clear that the court passing decree has no power to execute such decree against a person or property outside the local limits of its territorial jurisdiction. However, Section 46 of the Code empowers the court which passed the decree to issue precept to court which would be competent to execute the decree (within whose jurisdiction the property of judgement-debtor is lying) to attach any property belonging to the judgement-debtor. The order passed under Section 46 is interim in nature and can be lasted for two months only unless the case is covered by proviso. An order of permanent attachment under Section 46 is, therefore, illegal. WHO MAY APPLY FOR EXECUTION: RULE 10 The following persons may file an application for execution:
b) Legal representative of the decree-holder, if the decree-holder is dead.
c) Representative of the decree-holder.
d) Any person claiming under the decree-holder.
e) Transferee of the decree-holder, in case decree has been transferred by an assignment in writing or by operation of law.
f) One or more of the joint decree-holders, if for benefit of all the decree-holders and application is made for execution of whole decree and no contrary condition is imposed in the decree.
g) Any person having special interest.AGAINST WHOM EXECUTION MAY BE TAKEN OUT Execution may be taken out against the following persons:
ii) Legal representative of the judgement-debtor, if he is dead. However, they shall be liable to the extent of the property of the deceased judgement-debtor which has come to their hands.
iii) Representative of or the person claiming under the judgement-debtor.
iv) Surety of the judgement-debtor.NOTICE OF EXECUTION: RULE 22 Rule 22 provides for the issue of show-cause notices to persons against whom execution is applied for in certain cases. As a general rule, the law does not require any notice to be issued for execution. In the following cases only, however, such notice must be issued:
1) Where an application is made two years after date of decree; or
2) Where an application is made against the legal representative of the judgement-debtor; or
3) Where an application is made for the execution of a decree passed by a court of reciprocating territory; or
4) Where an application is made against the assignee or receiver of insolvent judgement-debtor; or
5) Where the decree is for payment of money and the execution is sought for arrest and detention of judgement-debtor; or
6) Where an application is made against a surety; or
7) Where an application is made by the transferee or assignee of the decree-holder.Omission to give notice is a defect which goes to the root of the proceeding and renders them null and void and without jurisdiction unless the judgement-debtor waives such notice. Moreover, Sub-rule (2) of Rule 22 empowers the court to dispense with such notice, if it would cause unreasonable delay or would defeat the ends of justice. LIMITATION FOR EXECUTION The period of limitation for the execution of a decree (other than a decree granting a mandatory injunction) 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. WHEN EXECUTING COURTMAY STAY EXECUTION? : RULE 26 The power to stay the execution of a decree by a transferee court is not similar to the power of the court which passes a decree. Whereas the transferor court can grant absolute stay, the transferee court can stay execution for a reasonable time to enable the judgement-debtor to apply to the transferor court or to appellate court to grant stay against the execution. Where the judgement-debtor applies for stay of execution, the transferee court must obtain security from the judgement-debtor or impose such condition as it may think fit. The provision is thus mandatory and imperative. Rule 28 provides that the transferee court is bound by an order made by the court which passed the decree or by an appellate court in relation to execution of such decree. STAY OF EXECUTION PENDING SUIT: RULE 29 Rule 29 enacts that where a suit by the judgement-debtor is pending in a court against the decree-holder, such court, may, on the judgement-debtor furnishing security or otherwise as it thinks fit, stay execution of the decree until disposal of such suit. For this rule to apply, there must be two simultaneous proceedings in one and the same court. The underlying object of this provision is twofold, namely, firstly, to enable the judgement-debtor and the decree-holder to adjust their claims against each other; and secondly, to avoid multiplicity of execution proceedings. MODE OF EXECUTION: SECTION 51 The code lays down various modes of execution. After the decree-holder files an application for execution of a decree, the executing court can enforce execution. The substantive provision (Section 51) merely enumerates different modes of execution in general terms, while the conditions and limitations under which the respective modes can be availed of are prescribed by different provisions under Order 21. The Code provides the following modes for execution of different types of decrees:
1) Delivery of property.
2) Attachment and sale or by sale without attachment of any property.
3) Arrest and detention in prison for such period not exceeding as specified in Section 58.
4) Appointment of receiver.
5) Other manner as the nature of relief granted may require.QUESTIONS TO BE DETERMINED BY EXECUTING COURT: SECTION 47 Section 47 is one of the most important provisions in the Code relating to execution. It applies only to matters arising subsequent to the passing of a decree and deals with objections to execution, discharge and satisfaction of a decree. It lays down the principle that matters relating to the execution, discharge or satisfaction of a decree arising between the parties, or their representatives, should be determined in execution proceedings and not by a separate suit. Conditions In order that this section may apply, the following conditions must be satisfied:
a) The question must be one arising between the parties to the suit in which the decree is passed or their representatives (not only legal representatives, but also representative-in-interest); and
b) It must relate to the execution, discharge or satisfaction of the decree.Both the above conditions must be satisfied cumulatively. NOTE: An order under Section 47 does not amount to a decree, it is not appealable under Section 96 and 100. A revision application under Section 115 of the Code is, therefore, maintainable provided the conditions laid down in Section 115 are satisfied. SECTION 47 AND ORDER 21 RULE 58: DISTINCTION Order 21 Rule 58 postulates that where any property(whether movable or immovable) is attached in execution of a decree, it is always open to the parties, their representatives or third parties having some right, title or interest in or possessed of the property attached, to raise objection against such attachment. If the objection is raised by a party or his representative, the question falls under Section 47 of the Code and should be decided by the executing court and not by a separate suit. On the other hand, if such objection is raised by a third party, two courses are open to him. Firstly, he may straightaway file a suit claiming appropriate relief. Secondly, he may file an application under Order 21 Rule 58 of the Code to the executing court. Section 47 applies to parties to the suit or their representatives, whereas, Order 21 Rule 58 applies to third parties or their representatives. Section 47 not only bars a suit but also bars an appeal, on the other hand, Order 21 Rule 58 bars a suit not appeal. ORDER 21 RULE 58 AND ORDER 21 RULES 97 & 99: DISTINCTION As we discussed above Order 21 Rule 58 deals with objections made by parties to the suit or third party with respect to the attachment of the property in execution of a decree, whereas, Order 21 Rule 97 talks about objections made by decree-holder or auction purchaser of immovable property after they are resisted or obstructed by any person (either judgement-debtor or third party) in obtaining possession of the said property delivered to them in execution of a decree, on the other hand, Order 21 Rule 99 stipulates objections made by third party only when he/she is dispossessed of immovable property by the decree-holder or auction-purchaser. From this, it is amply clear that Order 21 Rule applies only when the property (whether movable or immovable) is attached in execution of decree, whereas, Order 21 Rules 97 & 98 comes into play only when the immovable property alone is delivered to judgement-holder or auction-purchaser in execution of a decree. NOTE: An order passed under Order 21 Rule 98 or 100 on application under Order 21 Rule 97 or 98, respectively, is always subject to appeal and hence, can be challenged in appeal. But, any said order being passed summarily without making any inquiry or framing issues under Order 21 Rule 101, the aggrieved would be left with only one remedy i.e. Revision not appeal, as held by Hon'ble Supreme Court in Sameer Singh v. Abdul Rab Ors., 2014(4) RCR (Civil) 914. CONCLUDING REMARKS From the above discussion, it is manifest that the Code contains elaborate and exhaustive provisions for execution of decrees and orders and provide effective remedies not only to decree holders and judgement-debtors, but also to objectors and third parties. In exceptional cases, where provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can file a suit in a civil court. It is pertinent to apprise to the voracious readers here that in this article some topics like, procedure to be adopted for sale of property, resistance to delivery of possession, distribution of assets are left untouched in order to avoid giving too much length to this article. One can see Order 21 for the relevant provisions prescribed therein touching the said topics.
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