ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

CIVIL PROCEDURE CODE

PROJECT

Topic- Execution of decrees and order ( Section 36 to 39 and

Section 47)

Submitted to Submitted by

Alinihas V. Kunjali Singh

Assistant Professor GK7931
Department of law 18BALLB34
Content TS Page No. Page No.
TABLE
Introduction 03

Execution- Meaning 04

Nature and Scope 05

Application to Order: Section 36 07

Court passing a decree: Section 09

37
Court by which decrees may be 10
executed: Section 38
Tranferr of Decree: Section 39 10

Section 47 – its object, nature 12

and conditions
Powers of executing courts 13

Duties of executing courts 14

General Principles 15

Conclusion 16

Bibliography 17
 INTRODUCTION
A person when obtains a decree from a court of law against another person, his next step is to get

the decree satisfied. The proceeding by which he moves the court for satisfaction of decree

proceedings. is called execution.

Execution is the medium by which a decree holder constrains the judgment debtor to do the

command of the decree or order as the case may be. It empowers the decree holder to recover the

products of the judgment. The execution is finished when the judgment-creditor or decree holder

gets cash or other thing granted to him by judgment, decree or order. It 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.

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.

EXECUTION- MEANING

The term “execution” has not been defined in the code. The expression “execution” simply

means the process for enforcing or giving effect to the judgment of the court. The principles
governing execution of decree and orders are dealt with in Sections 36 to 74 and Order 21 of

the Civil Procedure Code.

Hon'ble Apex Court in Ghanshyam Das v. Anant Kumar Sinha (AIR 1991 SC 2251) dealing

with provision of the code relating to execution of decree and orders, observed in following

words - “ so far as the question of executability of a decree is concerned, the Civil Procedure

Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The

numerous rules of Order of the court take care of different situations providing effective

remedies not only to judgment debtors and decree-holders but also to claimant objectors, as the

case may be.”

Execution is the enforcement of a decree by a judicial process which enables the decree-holder

to realize the fruits of the decree and judgment passed by the competent Court in his favour. 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.1

NATURE AND SCOPE

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 Supreme Court stated:

“So far the question of executability of a decree is concerned, the Civil Procedure Code contains

elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of

order XXI of the Code take care of different situations, providing effective remedies not only to

1
Overseas Aviation Engg. (G.B.) Ltd.., re, (1962) 3 WLR 594: 1963 Ch d 24 (CA)
judgment-debtors and decree-holders but also to claimant objectors as the case may be. 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. The

remedy under the Civil Procedure Code is of superior judicial quality than what is generally

available under other statutes, and the Judge being entrusted exclusively with admin- istration of

justice, is expected to do better.”2

In Satyawati v. Rajinder Singh & Anr., (2013) 9 SCC 491, the Hon’ble Supreme Court held that

there should not be unreasonable delay in execution of a decree because the decree-holder is

unable to enjoy the fruits of his success by getting the decree executed, the entire effort of

successful litigant would be in vain.

APPLICATION TO ORDERS: SECTION 36

The main principle of this section is that ''every Court has an inherent power to have its orders

carried out, as otherwise the orders would be a mere farce''. This provision is applicable to all

orders which can be included in Sec 2, clause 14 and is not limited to orders made under the

Code of Civil Procedure,1908.

COURT PASSING A DECREE: SECTION 37

2
C.K Takwani “ Civil Procedure with Limitation Act 1963” Eastern Books Company Pvt. Ltd. 8th Edition
U/s. 37 the expression Court which passed the decree is explained. Primarily the Court which

passed the decree or order is the executing Court. If order or decree is appealed against and the

appellate Court passes a decree or order, even then the original Court which passed the decree or

order continues to be treated as Court which passed decree.

The Court which has passed the decree or order ceased to exist or ceased tohave jurisdiction to

execute the decree already passed, then the Court which will be having a jurisdiction upon that

subject matter, when application of execution is made will be the competent Court to execute the

decree.

Merely because the jurisdiction of the Court which has passed the decree is transfer to another

Court due to transfer of territorial area, the jurisdiction to execute the decree passed by such a

Court is not ceased.

However, the Court to whom the transfer of territorial area is made, will also have a jurisdiction

to conduct the execution of decree or order. (Sec.37)

(1) The court of first instance which actually passed the decree;

(2) The court of first instance in case of appellate decrees;

(3) 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

(4) Where the court of first instance has ceased to have jurisdiction to execute the decree,

the court which at the time of execution would have had jurisdiction to try the suit.3

3
Kasturi Rao v. Meher Singh, AIR 1959 Punj 350.
 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.

Where the court of first instance has ceased to exist or ceased to have jurisdiction to execute the

decree, the decree can be executed by the court which at the time of making the execution

application would have jurisdiction in the matter. 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 court 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. Nallaparaju4, 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 thereof being transferred subsequently to the

jurisdiction of another court."

But with regard to the second question, there were conflicting decisions. The High Court of

Calcutta, on the one hand, had taken the view that in this situation both the courts (A and B)
4
Mera Ramanna v. Nallaparaju, AIR 1956 SC 87: (1955) 2 SCR 938
would be competent to entertain an application for execution; the High Court of Madras', on the

other hand, had taken a contrary view by holding that in the absence of an order of transfer by

the court which passed the decree (court A), that court alone can entertain an application for

execution and not the court to whose jurisdiction the subject-matter has been transferred (court

B). The Supreme Court in Merla Ramanna5 referred to the above conflict of decisions but left the

point open and did not express any final opinion as to which of the two views is correct by

observing thus, "It is not necessary in this case to decide which of these two views is correct";

because according to the Supreme Court even assuming that the opinion expressed in the Madras

case¹l was correct since the transferee court had no inherent lack of jurisdiction, the objection to

it ought to have been taken at the earliest opportunity and as it was not taken at that stage, it must

be deemed to have been waived and cannot be raised at any later stage of the proceedings.

The Explanation added to Section 37 by the Amendment Act of 1976 gives effect to the Calcutta

view and makes it clear that both the courts would be competent to entertain an application for

execution of a decree.

TRANSFER OF DECREE: SECTION 39

Section 39 provides for the transfer of a decree by the Court which has passed it and lays down

the conditions therefore

5
AIR 1956 SC 87: (1955) 2 SCR 938
  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 suo moto or on

the application of the decree-holder if any of the following grounds exist:

 The judgment-debtor actually and voluntarily resides or carries on business, or personally

works for gain, within the local limits of the jurisdiction of such court; or

 The judgment-debtor does not have any 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 the jurisdiction of such other court; or

 The decree directs the sale or delivery of immovable property situate outside the local

limits of the jurisdiction of such other court; or

 The Court which passed the decree considers for any other reason to be recorded in

writing, that the decree should be executed by such other court.

The provisions of section 39 are, however, not mandatory and the court has discretion in the

matter which will be judicially exercised by it. In Tarachand v. Misrimal, AIR 1970 Raj 53, the

Hon’ble Rajasthan High Court observed that:

“Sec. 39 has been enacted for the purpose that it will be more convenient for a court which

passed a decree to get it executed by a court within the local limits of whose jurisdiction the

person resides or the property is situate in cases mentioned in cls. (a) to (c), but it does not debar

a court which passed a decree itself to execute it if the circumstances of the case so warrant or it

has the means to do so. We do not mean to say that the court which passed a decree should itself

embark upon executing the decree under all circumstances in cases provided in cls. (a) to (c) of

sec. 39(1). Normally it will send for execution to the court within the local limits of whose
jurisdiction the defendant resides or the property is situate, but it has the jurisdiction to proceed

to execute it.”6

SECTION 47

In the case Prosunna vs Kad Das, it was held that ''the scope of section 47 is very wide and the

Section should be construed liberally so that all questions capable of determination by the

executing court may be brought before it and the parties should not be driven to the worries and

expenses of an independent suit unless the case clearly falls outside the purview of Section 47.

The executing court has been given exclusive jurisdiction under this Section as to all matters

relating to the execution of the decree.''

Section 47 of the Code reads as follows:

“Questions to be determinedby the Court executing decree.-(1) All questions arising between

the parties to the suit in which the decree was passed, or their representatives, and relating to the

execution, discharge or satisfaction of the decree, shall be determined by the Court executing the

decree and not by a separate suit.

(2) * * * *

(3) Where a question arises as to whether any person is or is not the representative of a party,

such question shall, for the purposes of this section, be determined by the Court.

6
Supra NOTE 2
Explanation 1.- For the purposes of this section, a plaintiff whose suit has been dismissed and a

defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.- (a) For the purposes of this section, a purchaser of property at a sale in execution

of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his

representative shall be deemed to be questions relating to the execution, discharge or satisfaction

of the decree within the meaning of this section.”

OBJECT OF SECTION 47

The underlying object of this provision is to provide cheap and expeditious remedy for

determination of certain questions in execution proceedings without recourse to a separate suit

and to prevent needless and unnecessary litigation.² Section 47, therefore, must be construed

liberally.

Like Section 11, Section 47 has been enacted with a view to enable parties to obtain adjudication

of questions relating to execution without unnecessary expenses or delay which a fresh trial

might entail. The rule of res judicata deals with the finality of a decision of a court on matters

actually or constructively in issue before it and bars a fresh trial of any kind of such questions in

subsequent proceedings between the parties; while Section 47 deals with the enforcement of

such decisions and enacts that the questions specified in the section shall be tried in execution

and not by a separate suit. In other words, where there is an executable decree, no suit lies for the

enforcement thereof, or for the determination of the questions specified in Section 47.
 NATURE AND SCOPE OF SECTION 47

The scope of Section 47 is very wide. Exclusive jurisdiction has been conferred on the executing

court in respect of all matters relating to execution, discharge or satisfaction of a decree arising

between the parties or their representatives. Once the suit is decreed, this section requires that the

executing court alone should determine all questions in execution proceedings and filing of a

separate suit is barred.

Since Section 47 embraces all matters connected with the execution of a decree between the

parties or their representatives, and covers all questions relating to the execution, discharge or

satisfaction of the decree, it should be liberally construed so as to empower the court to

determine all such questions, unless they clearly fall outside the scope and purview of it." It does

not matter whether such questions arise before or after the decree has been executed.The

provision is not ultra vires Article 14 of the Constitution.

CONDITIONS

In order that this section may apply, the following conditions must be satisfied:

(i) The question must be one arising between the parties to the suit in which the decree is

passed, or their representatives; and

(ii) It must relate to the execution, discharge or satisfaction of the decree.

Both the above conditions must be satisfied cumulatively."

 POWERS OF THE EXECUTING COURT

An executing court has plenary power to determine all questions relating to execution of a

decree. The section, however, applies only to matters arising subsequent to the passing of the

decree. It covers all questions which arise before as well as after the decree has been executed.

For the said purpose, the court can treat a suit as an execution application or an execution

application as a suit in the interests of justice. When such power is exercised, normally the

relevant date would be the date on which the original proceeding was instituted and not the date

of conversion. An executing court can mould relief in the light of changed circumstances.7

DUTIES OF THE EXECUTING COURT

An executing court cannot go behind the decree. It has to execute the decree as it is. It cannot

question correctness or otherwise of the decree, But where the terms of the decree are vague or

ambiguous, it is the duty of the executing court to interpret the decree with a view to find out and

ascertain the meaning of the terms used. Again, where there is inherent lack of jurisdiction on

the part of the court passing the decree, the execut ing court can refuse to execute the decree.8

GENERAL PRINCIPLES REGARDING POWERS AMD DUTIES

OF EXECUTING COURT
7
Yashpal Singh v. ADJ, (1992) 2 SCC 504.
8
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340
With regard to the powers and duties of executing courts, the following fundamental principles

should be borne in mind:

(1) As a general rule, territorial jurisdiction is a condition precedent to a court executing a

decree, and, therefore, no court can execute a decree in respect of property situate entirely

outside its local jurisdiction.

(2) An executing court cannot go behind the decree. It must take the decree as it stands and

execute it according to its terms. It has no power to vary or modify the terms. It has no power to

question its legality or correctness. This is based on the principle that a proceed ing to enforce a

judgment is collateral to the judgment and, therefore, no inquiry into its regularity or correctness

can be permitted in such a proceeding.

(3) In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its

invalidity could be set up wherever and whenever it is sought to be enforced, whether in

execution or in col lateral proceedings. In such a case, there is no question of going behind the

decree, for really in the eye of the law there is no decree at all.

(4) Inherent lack of jurisdiction, however, must appear on the face of the record. Hence, if the

decree on the face of it discloses some material on the basis of which the court could have

passed the decree, it would be valid. In such a case, the executing court must accept and execute

the decree as it stands and cannot go behind it. To allow the executing court to go behind that
limit would be to exalt it to the status of a superior court sitting in appeal over the decision of the

court which has passed the decree.

(5) A decree which is otherwise valid and executable, does not become inexecutable on the death

of the decree-holder or of the judgment debtor and can be executed against his legal

representatives.

(6) When the terms of a decree are vague or ambiguous, an executing court can construe the

decree to ascertain its precise meaning. For this purpose, the executing court may refer not only

to the judgment, but also the pleadings of the case.

(7) An executing court can go into the question of the executability or otherwise of the decree

and consider whether, by any subsequent developments, the decree has ceased to be executable

according to its terms.

(8) A decree which becomes inexecutable by operation of law, may become executable by virtue

of a subsequent amendment in the statute and can be executed after such amendment.9

(9) The executing court has power to mould the relied granted to the Plaintiff in accordance with

the changed circumstances.

(10) The court the decree has transferred to it has the same powers in executing such decree as if

it had been passed by itself.10

CONCLUSION

9
Supra note 2
10
Ibid
From the above discussion it clearly appears that execution is the enforcement of decrees and

orders by the process of Court, so as to enable the decree-holder to realize the fruits of the

decree. Order 21 of the Code contain elaborate and exhaustive provision for execution of decrees

and order, take care of different type of situation and provide effective remedies not only to the

decree-holder and judgment-debtors but also to the objectors and third parties.

It is trite to say that execution proceedings have become a long-due process by which the parties

did not get justice in time. This delay in completion of execution proceedings are against the

principles of fair trial. It is a commonplace experience that execution does not turn out to be

curtains down to litigation but with several provisions that enable scuttling successful execution.

The Hon’ble Supreme Court observed in Shub Karan Prasad Bubna v. Sita Saran Bubna, (2009)

9 SCC 689, that courts are pre-occupied with disposal of suits but take decades to dispose of

execution petitions. It hoped that Law Commission and Parliament will bestow their attention on

this issue and make appropriate recommendations/amendments so that the suit will be a

continuous process from the stage of its initiation to the stage of securing actual relief.

BIBLIOGRAPHY
1. C.K TAKWANI “CIVIL PROCEDURE with Limitation Act,1963” Eqstern Book
Company Pvt. Ltd. 8th Edition,
2. Smt. K.B.Agrawal, Dist. Judge-1 & Addl.Sessions Judge, A.K Patni Dist.Judge-4 &
Addl.Sessions, Jalgaon “ Paper on the subject of execution of decree”
3. Abhishek Kumar, “Concept of Execution”www. lawoctopus.com