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“LIMITATION OF SEVERAL APPLICATIONS DURING

EXECUTION”

Presented
by
Rajasekhar Pallagani,
Junior Civil Judge,
Lakkireddipalli

INTRODUCTION:
1. Execution is the last stage of any civil litigation. There are three
stages in litigation – a. Institution of litigation, b. Adjudication of
litigation and c. 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 judgment.
EXECUTION – MEANING:
2. 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 Sections 36 to 74 and
Order XXI of 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 21 of the code 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.”
3. 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 by
recording full satisfaction.
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4. Order XXI of 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.
Execution is the enforcement of a decree by a judicial process which
enables the decree-holder to realize the fruits of the decree passed by
the competent Court in his favour. 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.
Application for Execution of decree:

5. All proceedings in Execution commence with the filing of an

application for Execution. Following persons may file an application for
Execution: 1. Decree-holder, 2. Legal representative of the decree-
holder, 3. Representative of a person claiming under the decree-holder,
4. Transferee of the decree-holder, in some cases.
Principles with regard to execution of decree:
6. Principles with regard to execution of decree and order can
briefly be summarized as under -

Provision of CPC relating to execution of decree and order shall

be made applicable to both Suits and Appeals.
 A decree may be executed by the court which passed the judgment
and decree or by some other court which is having competency to
implement the judgment passed by such other court.
 The court which passed the decree may send it for execution to
other court either on application of the applicant (decree-holder) or
by the court itself.
 A court may order for execution of decree on the application of
decree holder:-
(a) by delivery of any property which was in possession of
judgment-debtor and decree has been specifically passed concerning
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such property;
(b) by attachment and sale of the property of the judgment-
debtor;
(c) by arrest and detention;
(d) by appointing a receiver and
(e) in such other manner which depends upon nature of relief
granted by the court.
 Upon the application of decree-holder, the court may issue
“precept” to any other court which is competent in that regard.
 All questions arising between the parties to the suit in the decree
shall be determined by the court while executing the decree and not
by separate suit.

 Where a decree is passed against a party as the “legal

representative” of a deceased person and decree is for payment of
money out of the property of deceased person, it may be executed
by attachment and sale of any such property.

 Where immovable property has been sold by the court in execution

of a decree such sale shall be absolute. The property shall be
deemed to be invested in the favour of purchaser, and the
purchaser shall be deemed as a party to litigation.

 The court to which decree is sent for execution shall require

certifying to the court which has passed decree stating the manner
in which decree has been implementing concerning the fact of such
execution.
Limitation of several applications during Execution:
7.
 Section 5 of the Limitation Act does not apply to any of the
applications arising under Order XXI of the Code of Civil Procedure.
 According to Order 21 Rule 40 (3) proviso, the time limit for
detention of an arrested Judgment-debtor in court premises under
custody of officer of court not exceeding 15 days.
 According to Article 125 of the Limitation Act, 1963 an application
to record an adjustment or satisfaction of a decree under Order XXI
Rule 2 CPC has to be filed within 30 days from the date of
payment or adjustment. Under the provisions of Order 21 Rule 2
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CPC, the Judgment-debtor may, by application made in that behalf,

have an adjustment of the decree recorded and that application
must be under Article 125 within 30 days of such adjustment. The
decree-holder also may certify such adjustment and have it
recorded, there being no time limit for such application.
 According to Article 126 of the Limitation Act, 1963 an application
for payment of the amount due under decree by installments under
Order 20 Rule 11 (2) C.P.C., has to be filed within 30 days from
the date of decree.
 Order 21 Rule 89 CPC deals with the application to set aside sale on
deposit. Order 21 Rule 90 CPC deals with the application to set
aside sale on ground of irregularity or fraud. Order 21 Rule 91 CPC
deals with the application by purchaser to set aside the sale on
ground of judgment-debtor having no saleable interest. Sec. 47
CPC deals with questions to be determined by the court executing
decree.
 In this context, it is just and essential to know when sale can
besought to be set aside under Section 47 CPC without resorting to
Order 21 Rules 89 to 91. Our Hon'ble High Court had an occasion
to address to this question in detail. In the opinion of Hon'ble
Justice Punnaiah, Rule 89, 90 or 91 of Order 21 can be invoked if
the sale is conducted in execution of a valid decree passed by a
competent Court in exercise of jurisdiction vested in it. But, if the
decree itself is null and void inasmuch as the Court has no
jurisdiction to pass such a decree, the sale conducted in exercise of
such a void decree becomes void ab initio. In such a case the
Judgment-debtor can resort to Section 47 CPC for setting aside the
sale even after the sale was confirmed and the property was
delivered without driving the Judgment debtor to file a separate
suit. (Devuri Appala Raju vs. Kolli Ramayamma 1983(1) APLJ
273). According to Article 127 of the Limitation Act, 1963 that an
application to set aside a sale in execution of the decree, including
any such application by a judgment-debtor shall be filed within
sixty days from the date of sale.
 Whether time for deposit under Rule 89 is 30 days? In this context,
it is necessary to refer Order 21 Rule 92(2) CPC. According to Rule
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92 (2) CPC, …......, and where, in the case of an application under

Rule 89, the deposit required by that rule is made within sixty
days from the date of sale.
 According to Order 21 Rule 84 (1) CPC, on every sale of immovable
property the person declared to be the purchaser shall pay
immediately after such declaration a deposit of twenty-five
per cent on the amount of his purchase-money to the officer
or other person conducting the sale, and in default of such deposit,
the property shall forthwith be re-sold.
 Order 21 Rule 85 CPC deals with time for payment in default of
purchase money. The full amount of purchase-money shall be
paid by the purchaser into Court before the court closes on the
fifteenth day from the sale of the property.
 Order 21 Rule 99 CPC deals with Dispossession by decree-holder or
purchaser. According to Order 21 Rule 99 (1) CPC, where any
person other than the judgment-debtor is dispossessed of
immovable property by the holder of a decree for the possession of
such property or, where such property has been sold in execution of
a decree, by the purchaser thereof, he may make an application to
the court complaining of such dispossession. As per Article 128 of
Limitation Act, such an application to the court has to be filed
within thirty days from the date of dispossession.
 Order 21 Rule 97 CPC deals with Resistance or obstruction to
possession of immovable property. According to Order 21 Rule 97
(1) CPC, where the holder of a decree for the possession of
immovable property or the purchaser of any such property sold in
execution of a decree is resisted or obstructed by any person in
obtaining possession of the property, he may make an application
to the court complaining of such resistance or obstruction. As per
Article 129 of Limitation Act, such an application to the court has to
be filed within thirty days from the date of resistance or
obstruction.
 According to Article 134 of Limitation Act for delivery of possession
by a purchaser of immovable property at a sale in execution of
decree under Order 21 Rule 95 CPC is one year from the date of
confirmation of sale or when the sale becomes absolute.
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 According to Article 135 of Limitation Act for enforcement of a

decree granting mandatory injunction under Order 21 Rule 32
r/w.35 CPC is three years from the date of decree or date
fixed for performance.
 Article 136 of Limitation Act governs the execution of the decree or
order of Civil Court other than a decree for mandatory injunction.
The executing Court must execute the decree according to its terms
except when there is the statutory limitation to execute it.
 In Giridharilal v. Thakurdas, (AIR 1964 Ori. 170), it has been
held that the initial onus is upon the decree-holder to show that the
execution is within time. Where the application for execution is
prima facie not barred by limitation it is for the judgment-debtor to
show that the execution is time-barred.
 The modes in which the Court can give relief in execution are set
forth in Order XXI of the Civil Procedure Code. The period of
limitation provided by the Article 136 of Limitation Act is ordinarily
an application for execution contemplated by Order XXI, Rule 11 of
Civil Procedure Code.
 In Nanwa v. Maulana Abdul Mughni, (AIR 1981 All. 143), a
decree for mandatory injunction and for possession was passed in
which two months time was given to the defendant to remove the
debris failing which the plaintiff was entitled to get the debris
removed by process of the Court and was entitled to get possession
of the land. The decree was passed on the 25th April, 1961. It has
been held that the decree became enforceable on 25th June, 1961.
As the execution case was filed on the 12th May, 1973, it is also
held that decree for possession was executable as it was filed within
12 years of the date when the decree for possession became
enforceable, but decree for mandatory injunction could not be
executed because it has not been filed within three years of 25th
June, 1961 under Article 135 of the Limitation Act.
 In Dattu Apparao Machale and Ors. v. Digambar Govindrao
Shendga (AIR 1968 Bom. 361), it has been held that Article 136
of Limitation Act will not apply to an application for execution of
award given by a Special Court under a Special Act because it
applies to execution of decree or order of Civil Court either under
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Civil Procedure Code or under any special statute under which order
is deemed to be decree by virtue of same provision requiring the
execution as decree.
 Under the Article 136 of the Limitation Act, 1963, the period
of limitation for the execution of any decree or order of any
Civil Court other than a decree granting a mandatory
injunction is 12 years. The maximum period of limitation for the
execution of a decree or order is 12 years from the date when the
decree or order became enforceable, which is usually the date of
the decree or order.
 The expression “enforceable” has been used to cover a decree or
order which is not enforceable at the time it is made but becomes
enforceable subsequently. In Chandra Mouli v. K.B.N. Singh,
(AIR 1976 Pat. 208), it has been held that the decree comes into
existence as soon as the judgment is pronounced and not on the
day when it is sealed and signed, because under Order XX, Rule 7,
the decree shall bear date, on which the judgment was pronounced.
 The second part of the third column of Article 136 provides that
where the decree or subsequent order directs any payment of
money or for the delivery of any property to be made at a certain
date or at requiring periods, then the limitation would commence
from the date when the default in making the payment or delivery
in respect of which the execution is sought for, takes place.
Therefore, this part covers in terms all cases where either the
decree originally or by any subsequent order directs the payment of
the decretal amount or delivery of any property at a future date or
by installment.
 The words “certain date” used in the third column of the Art. 136
referred to a date which at the date of the decree or order is
certain. Therefore, a date which can become certain only at the
future time will not be a “certain date” within the meaning of the
Article 136. The words “certain date” are of wider amplitude than
the word ‘specified’ and would consequently mean an ascertained or
ascertainable date.
 In view of the proviso to the third column of Art. 136 of the
Limitation Act, 1963, the execution of the decree for permanent
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injunction is not subject to any period of limitation. For executing

the decree for permanent injunction an application for execution
has to be filed in the executing Court and the Court cannot enforce
it suo motu.
 In I. Ahmed v. K. Bibi, (AIR 1985 Ori. 102), it has been held
that for execution of a decree other than a decree for mandatory
injunction, 12 years is the period of limitation which commences
from the date when the decree becomes enforceable, but an
exception has been made in respect of the decree for perpetual
injunction for which there is no period of limitation and it can be
enforced at any time.
 Article 136 is the comprehensive Article to cover the execution of
any decree or order of any Civil Court other than a decree granting
mandatory injunction. So, there is no dispute that for executing a
decree passed by a superior Court of a reciprocating territory
(Foreign Country) in the District Court in India, Article 136 of the
Limitation Act will be attracted.
 Application for restitution under Section 144 CPC, is application for
execution. Whether an application for restitution is an application
for execution within the meaning of Article 136 of Limitation Act had
been marked by great divergence and sharp cleavage of opinion
among the High Courts till the Hon'ble Supreme Court resolved the
conflict in one pronouncement. Hon'ble Supreme Court in
Mohanbhai Barot v. Gokalbhai (AIR 1965 SC 1477) held (in a
majority judgment) that an application for restitution under Section
144 of the Civil Procedure Code is an application for execution of a
decree and that Article 136 of Limitation Act applies to such
applications. It is pointed out that when a party who lost his
property in execution of a decree seeks to recover the same by
reason of the appellate decree in his favour he is not initiating any
original proceeding but he is only concerned with the working out of
the appellate decree in his favour. In other words, the application
flows from the appellate decree and is filed to implement or
enforce the same.
 An application for passing a final decree is an application in the suit.
A suit for partition in which a preliminary decree has been made
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continues to be pending on the file of the trial court until a final

decree is drawn up in accordance with law and the duty of drawing
up the final decree is a duty of the Court and neither the Civil
Procedure Code not the Limitation Act specifically provides for any
application being made for drawing up a final decree. To such an
application there is no limitation.
 According to Order 21 Rule 106 (3) CPC, an application for setting
aside the exparte order shall be made within thirty days from the
date of the order.
 As a general principle Section 5 of Limitation Act is not applicable to
the execution applications. But Section 5 of Limitation Act
applicable to applications made in execution in State of A.P under
sub-rule (3) of Rule 106 of Order 21 in view of adding sub-rule (4)
to Rule 106 of Order 21 by Hon'ble High Court of A.P., by issuing a
Notification and publishing it in A.P. Gazette on 30-11-1992, after
Amendment of CPC by Act 104 of 1976, in exercise of its Rule
Making power under Sec.122 CPC. The said power exercised with
previous approval of State Government as per Section 126 of CPC is
equivalent to legislative power. Section 5 of Limitation Act
therefore applies to all applications under sub-rule (3) of said Rule
in spite of bar under Section 5 regarding its applicability to
execution proceedings under Order 21 CPC. The said amendment
not repealed by CPC Amendment Acts 46 of 1999 and 22 of 2002
which came into effect from 01-07-2002. Our Hon'ble High Court in
the decision reported in 2004 (2) ALT 764 in the case of Sale
Ranga Swamy v. Special Collector-cum-Land Acquisition
Officer, S.S.P. Kurnool extensively dealt the said aspect.
CONCLUSION:

8. In view of above discussion, it can be summarized that O.21 of

CPC is an independent Code in itself and it not only provide procedure
to be followed by the decree holder to get the fruits of decree, at the
same time it provides an opportunity to the judgment-debtor or the
third party/objector petitioner to raise the grievances or objection in
the execution proceeding itself. Recourse to independent proceedings
by filing a separate suit is clearly prohibited. Therefore, objections, if
any are raised by the judgment-debtor or the third party in execution
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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.

Therefore, execution is the most important aspect of Civil

justice. Success or failure of system of Civil justice depends on success
in executing decrees of Civil Courts.

I deem it a matter of privilege and pleasure for having been

asked to submit the presentation on the important topic, for which my
sincere thanks to the Hon’ble High Court of Judicature at Hyderabad
for the States of Andhra Pradesh and Telangana and Hon'ble District
Judge, Kadapa.

(RAJASEKHAR PALLAGANI)
JUNIOR CIVIL JUDGE,
LAKKIREDDIPALLI