Course Teacher:- K Vishwanath

Professor

Topic:- Execution P

Table of Contents

Introduction
 Execution proceedings under CPC
 Transfer of decree for execution
 Execution of foreign decrees in India
 Execution of decree at more than one place
 Procedure in execution
 Powers of executing court
 Conclusion

Introduction
Execution is the last stage of any civil litigation. There are three stages in litigation:

1. Institution of litigation.

2. Adjudication of litigation.

3. Implementation of litigation.

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 plaint. Decree means operation or
conclusiveness of judgement. Implementation of a decree will be done only when parties has filed
application in that regard. A decree or order will be executed by court as facilitative and not as
obligation. If a party is not approaching court, then the court has no obligation to implement it suo-
motto. A decree will be executed by the court which has passed the judgement. In exceptional
circumstances, the judgement will be implemented by other court which is having competency in that
regard.

Execution is the medium by which a decree-holder compels the judgement-debtor to carry out the
mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of
the judgement. The execution is complete when the judgement-creditor or decree-holder gets money or
other thing awarded to him by judgement, decree or order.

Meaning
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.
Execution proceedings under CPC
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.

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.

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:

1. The court of the first instance;

2. The court which actually passed the decree in case of appellate decrees;
3. The court which has jurisdiction to try the suit at the time of execution, if the court of first
instance ceased to exist;
4. 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.
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:

1. if the judgment-debtor carries on business, or resides or personally works for gain, within
the jurisdiction of such Court;
2. 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;
3. if the decree directs delivery or sale of immovable property situated outside the jurisdiction
of the Court which passed the same;
4. 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.
Section 39(2) states that the Court of the first instance may suo motu send it for execution to any
subordinate Court of competent jurisdiction.

The Section further states that if the execution of the decree is against a person or property outside
the territorial jurisdiction of the court passing the decree, then such Court has no power to execute
the decree.

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of Section 39
are not mandatory because the court will have discretion in the matter which can be exercised by it,
judicially. The decree-holder would not have any vested or substantive right to get the decree
transferred to another court.

Execution of foreign decrees in India

The Code lays down the procedure for execution of foreign judgments and decrees in India. While
enforcing a foreign judgment or decree in India 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.

What is 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 India 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.
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 India 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 India.
Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise, such
foreign judgment or decree cannot be enforced in India as such judgment or decree will not be
regarded as conclusive if it fails any of these tests.

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.

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court observed that “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
Section 51 to 54 of the Code talks about the procedure in execution.

Section 51
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.
Mode of executing decree

 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.

 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 judgement-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.

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.

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.

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.

Mode of executing a decree

 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.

 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.
Conclusion
It clearly appears from the above discussion, that execution means implementing or enforcing or
giving effect to an order or a judgment passed by the court of justice. The provisions contained
in Order 21 covers different types of situation and provide effective remedies to the judgment-
debtors, claimant objectors and third parties apart from the decree-holder.

The Code takes care of the rights of judgment-debtors too. Various modes of execution of a decree
are also provided by the Code which includes arrest, detention of the judgment-debtor, delivery of
possession, attachment of the property, by sale, partition, the appointment of receiver and payment
of money etc. Thus, the provisions are rendered effective or capable of giving relief to an aggrieved
party.