CPC Term End

CIVIL PROCEDURE CODE

TERM END EXAMINATION
SEMESTER -5
RESEARCH PAPER ON
“An Analysis -By Which Court Decree Can be Executed,
Why the Court stay execution and modes of executing the
Decree”
Under the Guidance of – Prof. Kanchan Shukla
Submitted By – Sarthak Neema

Roll No- C018
SAP ID - 81022018020
1
Kirit P. Mehta School of Law
Declaration
I hereby declare that the work reported in this project report entitled “An Analysis -By
Which Court Decree Can be Executed, Why the Court stay execution and modes of
executing the Decree” submitted on December, 2020. I have also Acknowledged all the
sources from where the various data and ideas has been collected, To the Best of my
understanding the project within the 20% of plagiarism which is permissible according to
Guidelines.
2
Acknowledgement
I, Sarthak Neema of B.BA L.L.B (Hons.), third year student from NMIMS Navi Mumbai
School of law and have conjointly worked towards making this paper both meticulously and
harmoniously.
Putting forth this research paper has taken me lot of sincere efforts and help and support of
other people. We want to sincerely thank our ‘CIVIL PROCEDURE CODE’ faculty of
NMIMS Navi Mumbai, Prof. Kanchan Shukla who was not only supportive of our work, but
also constantly pestered to move ahead by doing numerous corrections in the paper, rough
draft and structure of the paper as a whole. Therefore, I sincerely thank Prof. Kanchan Shukla
for all her support and help.
3
Content
1. Abstract …………….………….………….…….………………….............. Pg. 5
2. Keywords.…………………………….……………………………………. Pg. 5
3. Introduction…………………………………….…………….…................... Pg.5-6
4. Review of literature …………………………….…………............................Pg. 6-7
5. Background of Research……………………………………………………. Pg. 7
6. Review of Literature Gap.………………………............................................Pg.7
7. Research objectives……………………………………...……………. ……. Pg.7-8
8. Research Methodology……………………………….....................................Pg. 8
9. Hypothesis …………………………………………………….……………. Pg.8
10. Chapter I………………………………………………………………………Pg. 8-10
11. Chapter II………………………………………………………..................... Pg.10-14
12. Chapter III………………………………………………………………….…Pg. 15-17
13. Chapter IV…………………. ………………………………………………. Pg. 17-22
14. Chapter V……………………………………………………………………. Pg. 22-24
15. Findings……………………………………………………………………… Pg.24-25
16. Limitation of Research …………………….....................................................Pg.25
17. Suggestion and Recommendation………………………………………….... Pg. 25
18. Conclusion…………………………………………………………………… Pg.25-26
19. Bibliography and References……………………………… …………………Pg.27-28
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ABSTRACT
This research brings an attempt to explore the laws related to Execution of Decree in India, as
there Many Cases filed in many courts in India Day by day, some of them are related to
crimes some related to bring an action for the civil Suit, so for governing all this case means,
how to deal with case step by step there is need of some law for the betterment and smooth
processing of case. As a result, in India Civil Procedure Code Was Enacted in the Year 1908,
which governs the procedure how the case is filled to the final orders given by court as a
result of disposing the case. After the disposing the case, it results that one of the Parties wins
the Case and Other parties will lose so the Party Which won the case is known as The
Judgement Creditor and the Party who losses the case is Known as the Judgement Debtor, so
as the Judgement Creditor has won the Case means the Decree is Passed in His Favor which
means he has awarded by court to claim damages from the Judgement debtor. So, to execute
a Decree means, how the Decree is executed in Court of law, this paper explores the various
courts in which the past decree can be executed and what are the powers of the court related
to execution of the decree, deals with process after the transferee court executes the decree
i.e., the process of certification. Further This research explores the validity of decree passed
by the foreign court in Indian Courts, Now the paper solves the mystery how the decree can
be executed in the court i.e. in which mode the decree can be executed This leads to reason
why sometimes, it results in arrest of the Judgement debtor or attached the property of
Judgement Debtor, Appointment of receiver sale of Property, But it has to be made in the
form as it has been requested by the decree-older while filling the application for execution of
the decree. Next this Study emphasizes on why stay on execution has been Put by the Court
of law, what are the provision related to it, while dealing with all the above provision, the
Thing which utmost importance is to consider the interpretation views of Provision by the
High Court and Supreme court of India. Further this research deals with how decree will be
executed in India and what are the laws that governs English law for the process of execution
of decree.
KEYWORDS
Execution, Decree, Stay of execution, Mode of execution. Judgement Debtor, Judgement

Creditor.
INTRODUCTION
5
As the three are 3 stages of Litigation in the civil suit which mainly comprises as, initiating
the proceedings of Litigation, after initiating it leads to adjudication and in the last after apply
the Judicial mind the court orders the decree in favor of one of the parties to. So that the party
may receive the benefits of the decree, such process of receiving claims or receiving damages
termed as execution which in simple Terms implementing the Court orders, As the word
execution is not mentioned in the whole Text of the civil procedure code, So the word
execution means “means to execute” the order of the courts. So, on the basis of the Decree
the decree holder i.e., in whose favor decree has been executed, has the right to claim
damages from the judgement debtor, to enjoy benefits of the decree passed by the Court,
Sometimes even after the decree is passed by the court, but due to an application filled by the
Debtor of the Judgement leads to stay of the execution, such stay of execution must be held
on reasonable terms no one should be denied justice by filling application for the stay of
execution. There is also a limitation Period whether the decree holder has to apply for
execution, which has been set as 12 years within time it can be executed otherwise it will be
termed as Time barred. Further there are many ways how the decrees can be executed, so it
has to be decided on the years from the time decree has been passed. basis which decrees
holder put in the application filled before the court. The court also must execute the decree in
the Mode which has been asked by the decree Holder, if there is no violation of Rights of
Judgement debtor, as there many Courts in India who can execute the decree this Paper
explains in which court decrees can be executed with Powers of all the Three Transferor,
Transferee and Executant court Powers. As the Civil Procedure Code is before the
Independence so it means the law passed in British Era, and as English law has a Major
Impact on the laws passed in India so according to it must have some similarities with Indian
Civil procedure Code,
REVIEW OF LITERATURE
For the Purpose of Research many authors views were considered which are as follows,
according to (SRI SAI KAMALINI) in his research titled as Modes of execution under CPC
held that their many ways in which court may execute decree so that Judgement creditor may
get his/her rights. According to (SUBODH ASTANA) in his research titled as Execution of
Decree under CPC, 1908 held that How the Foreign Courts decree can be executed
According to Provision of Civil Procedure Code, This Research Further deals with how and
Why a Decree has been Executing at more than one Place. According to (MARIYA
PALIWALA) in his research titled as various Modes in which Execution of decree can take
6
Place, held that as there are many modes in which execution of a decree can take Place. This
paper explains the Proper procedure in which the execution can takes place write from filling
application to claiming benefits, further in his research the author deals with various modes in
which decree can be executed also with the views of judges regarding the interpretation of
said provision on the cases to case basis. According to (KAVITA CHANDRA) in her
research titled as “Execution under CPC” held her in research that How the Court deals with
the decree Filled for execution in the 2 Different courts, further in her research she focused
on what are various Powers have been given to transferor court, Transferee Court and the
court which executes the decree, further this research also explains about the procedure How
decree can be Transferred to another court. According to (SUDHANSHU SHEKHAR) in
her research titled as Stay of execution held that why the stay of execution has been granting
by the court and what are the provision related to stay of Decree by the appellate decree, what
are the provision related to stay of execution in pending suit. According to (SHEEN KAUL)
in his research titled as Modes of executing a decree helps to explain the provision of the
code with respect to How Judiciary has made interpretation with respect to said sections.
According to (PRIYAM DHINGRA) in his research titled as Miscellaneous Provision
relation to Execution of suits under the civil Procedure code held that, Apart from General
provision Such as, stay of execution, mode of execution the Emphasis is made on Powers of
the court, Forms which is needed to be submitted in the court, various Provision related to
execution which courts looks into consideration while executing the decree. According to
(NEELAM JHA) in his research titled as how the decrees can be executed in English law a
comparative study with provision of Civil Procedure Code. So, this research helps the
Compare the Provision of Indian law with respect to English civil procedure rules in this
research it can be concluded although both the laws are different but in the view that are held
to be somewhat similar to each other in relation to executing of a decree.
BACKGROUD OF RESEARCH
As there are many provisions mentioned in the Civil Procedure Code, From the Point of
Filling of the case to the delivering of the Judgement by the court. So, this research entirely
focuses on How the Court executes the decree and What are the various Provision relating to
it and also this paper helps to understand the interpretation made by the court in relation to
various provisions of the said Code.
REVIEW OF LITERATURE GAP
7
On the Basis of research, it can be found there is various research done in relation to
execution of the decree, But the major research gap Which is identified on the basis of
research is that There is not major research is done in respect how the decrees can be
executed in the foreign Court, further Another research gap which has been identified that
there is no much research regarding how the Court interpreted the Concept of stay of
execution.
RESEARCH OBJECTIVES
 To find out which Court has Power to execute the decree.

 To find out where Foreign Decrees a can be Executed in India Or Not.
 To Find out the Reasons Why the Court may Stay the Execution of Decree.
 To Analyse the Process How the Execution Takes Places in Court of Law.
 To Analyse Process For application of decree.
 To Analyse How the Decree is Execute in English Law.
RESEARCH MEHTHODLOGY-
This Research is fully dependent on the data and information collected from secondary
sources of data. Which includes that data is collected From Sources i.e. Through Journals,
Websites, Articles, Books, Bare act of Civil Procedure Code and Various Case laws.
HYPOTHESIS –
 There Exist an indirect relationship Between the Courts who passes the Decree and
Execute Decree. (i.e., The Court Which passes the Decree not only that but other
court can also Execute It).
 There exists a Direct relationship between the Decree passed By the Countries and Its
Execution.
 There Exist an Indirect Relationship between The Court which passes a Decree will
also Execute it within the Time (i.e., The Court cannot order stay on execution).
 There Exist a direct relationship between the Decree Holder can apply and application
made for the execution of Decree.
 There Exist direct relationship how Decree is executed in India and England.
CHAPTER I- APPLICATION FOR EXECUTION OF A DECREE
8
Before Starting a research lets first understand what is decree “A decree is decision laid down
by the court in a particular case” So if the decision is given by court in a particular case then
the Judgement creditor who gets decision in his favor Has to apply to the Court for the
execution of decree, It is not court the who will come and Give rewards to judgement
creditor, It is decree holder who has to apply the court for the execution , so that court can
start the Process of execution, So now The next question arises who may apply For the
Execution as it may be possible any one can apply so Code gives list of Person who May
apply which are as follows-
 Decree holder, as he Has won the Case,

 In case he dies or not available His Legal Representative,
 If anyone authorised by the decree Holder.
 If there is person claiming under Decree Holder.
 Anyone Can May ask for execution if Decree holder Transfers his decree, but
necessary condition which need to be fulfilled are as follows, it must be in
writing, transferee Must also ask the court to execute the decree.
 If some One has Special Interest then the court may allow to execute decree In
Favour of all the above People.
 A receiver Appointed by the court.
The Above List mentions the Person can also claim the decree other than decree holder, but
there are also types of people who cannot claim execution of the decree which are as follows-
 When the Person Did not have Decree in His Favour or Did not receive It from the
Decree Holder.
 Any third Person who has neither party to the case.
But as it is mentioned above who can claim Damages from the Judgement Debtor, So as The
Court is middle man who Finds who’s right has been violated and ensures justice must be
Given to whose right has been violated. So, the court did not Pay by themselves it has to be
taken Through Parties who Lost so here is the List of Person Through whom the decree
Holder can claim Damages-
 Judgement Debtor i.e. The Person who lost the case, His representative in case he is
not available, third the Surety of the Judgement debtor.
9
Now as the Court Did not Come and Pay damages to the Decree holder, and as to apply the
Court for the Execution So an Application Must be made in the Court for Execution in Must
Contain the Following Contents so as to court may give awarded Damages to decree Holder.
The Form no 6 of Appendix E to the First Schedule of the code, the application for execution
Should be made in this Form. The court Have to accept the application Even if the Contents
are not Properly entered by the Decree Holder-
 1st of all the Suit Number has to be Entered,

 The Next in question comes The Name of the Parties and Date of the decree on
which court passes (in execution Form It is Considered to be as for determination of
Limitation Period)
 Whether An appeal made or not by the judgement debtor,
 Whether the Judgement creditor is received some Payments or not
 Whether any previous application for decree is made.
 The Total Amount with the interest Due on the judgement Debtor.
 The Person Against Whom the Decree is Obtained.
 Decree holder Also Had to mentioned In Which mode he wants assistance with The
Court1.
LIMITATION PERIOD – According to the Limitation Act the period which is given to the
decree holder to execute his decree is 12 years. By the date the decree passed by the court.
But in the famous case of “GIrdharilal vs Thakurdas” 2 in this Case it has been held by the
Honorable Supreme court it is the duty of the decree Holder to proof That execution is well
within the Time, by applying for execution. It is the Duty of judgement debtor to show it is
Time barred.
CHAPTER II- WHICH COURT HAS POWER TO EXECUTE THE
DECREE AND CAN FOREIGN DECREES CAN BE ENFORCED IN

INDIA OR NOT?
As explained in the Research who can apply for the execution of decree and to whom can
decree holder claim the Damages, As It is mentioned that Decree holder can go to the court
for the execution of decree then Question arises in which court he must go for the execution
1
Ajit Singh, Application for Execution, https://www.legalpedia.co.in/legalnotes/application-for-execution.html
Last Visited on 25 November 2020.
2
(AIR 1964 ORI 170)
10
as there are numerous courts in India So the major question arises where should the Decree
Holder Go for Claiming its rights. So, this chapter helps to understand the scope where the
Decree Holder can Claim His Rights,
Decrees can Be executed by –
 The Court Which Passes It.

 Where the One Court Actually transfers the decree to other court for execution.
 The Appellate Court which passed the decree.
 The Court which has jurisdiction to try the suit, at time Of Execution of decree, If the
court which has to try at first instance ceased to exist.
 Some Times the decree is executed by the Tw Courts at the Same time.
Procedure of Transfer of Decree –
It is at the responsibility of the decree holder to makes application to the Court for the
instance to send decree for the execution to another court So the court which passes the
decree has to other courts then the following Grounds Must Be Met-
 If suppose the Judgement debtor resides or works for the Personal gain in the Place
other than the Court Passes the decree, then Court may Transfer the Decree to execute
decree at Such Jurisdiction.
 If the next situation the subject matter of the case is Property and this Property resides
in Other courts territorial Jurisdiction then in such instance the Other court in whose
Jurisdiction the Property belongs as right to Execute the decree.
 If the Decree Results in the sale of immovable Property or attachment in favour of
Judgement creditor which is Outside the Courts Jurisdiction in such case the Other
court in whose Jurisdiction the Property belongs as right to Execute the decree.
In another instance Court itself Transfers the Power to other Courts for execution of decree
where the court only believes that they have no right to Execute a decree so they transfer to
other courts for the execution of said decree while explaining its reasons in writing why is it
necessary for the other court to execute the decree.
There is also Provision if Sometimes if the court passes a decree but an against the person or
Property belonging to region which is considered as the outside of the Territorial jurisdiction,
Then the Court which passes the decree itself has no right to execute the decree, the Other
11
court has only right to execute the decree on the basis of territorial jurisdiction where the
Person and the Property belongs to.
“In Mahadev vs Ram Lochan 3” it has been Held by the Honorable supreme Court that the
provision of section 39 of the code is not necessarily required to be Followed by the Court,
the Supreme Court has to decide on its discretion whether they have to transfer the decree for
execution or not.
Powers of the Most Transferor, Transferee Court In executing The Decree-
Powers of Transferor Court -Once the transferor court has passed the Decree to another
court for its execution then the Transferor Court has no power to execute the decree and it
ceases that the Transferor courts has any power to execute that decree. And all the Powers of
execution of decree is vests with the Transferee court.
Powers of Transferee Court- As the transferee courts has Received application from the
Transferor Court to execute the decree than the Transferee Court has all Power to execute
decree. It will be taken as a transferee court itself has Passed the decree, And Transferor
Court has no Power to interrupt the execution of a decree., This decree may be executed by
the District court and the subordinate courts under the District who has competent jurisdiction
to execute the decree. This is the Provision Under rule 8 of order 21. The Court has also the
power to Punish Who causes the Obstruction in executing the decree.
Powers of executing Court- As the court can execute the decree on the application made by
the decree holder, so it can be in oral and writing but the decree holder as also has to mention
in which way he wants the Judgement debtor has to award him damages, but in this regard,
court also has power to determine in which way the decree would be executed4.
Whether Foreign Court’s Decree Can be Executed or Not in the Indian Court-
Before Starting Chapter, we should understand what is Foreign Judgement so in Simple it

means “A decree passed by the court which is outside the Territory of India and has been not
Established by the authority of central Government”.
Now on the basis of research It has been Understood that decree can be executed in two
Ways By the Court which passes the decree secondly when the courts only transfer the decree
3
1981 AIR 416, 1981 SCR (1) 732
4
Sheen Kaul, Powers of executing Court, Introduction, Explanation, Limitation,
https://www.legalbites.in/power-of-executing-court last Visited on 1 December 2020.
12
to another court for the its execution , So Now the question arises whether the court can
execute the decree if the Decree is Passed by the Foreign Courts because earlier if the decree
is passed is transferred by the court means that it is been passed by the court of India which
transferred to other court, So here question can Judgement given by foreign Countries can be
executed under Indian law system so this chapter deals with the laws regarding executing the
foreign Decrees in the Indian Court of law-
On the basis of research, it can be found A foreign Court Judgment can be executed in the
Indian Court but for the Execution of Foreign decrees in the Indian court there is need to be
Certain condition which is needed to be fulfilled – First of all it means the Judgement needs
to be conclusive and to test the Conclusive of the decree the Section 13 of the Civil Procedure
code Which are as Follows-
 The Judgement or Decree must Be Passed by the Competent court, in the Foreign
Countries.
 It has to be decided on the Merits of the Case.
 Such Judgements Not to be obtained by fraud.
 Such Judgement should not be made by violating the basic principle of Natural
Justice.
 It should be not violating The International laws, and places where Indian law is taken
to be Consideration the consideration us be taken of such laws.
 Such claim should not be on basis that breaches any Indian law time In Being force.
The Above test has to be Decided by the Court while Executing a foreign Decree in Indian
Court of law.
There Are Popular Two Ways How the foreign judgement can be enforced in the Indian
Courts-
Execution of foreign decree of a reciprocating territory in India.
“Reciprocating Territory” it basically means any country or territory which is situated outside
the territory of India and it is declared by the Central Government to be reciprocating
country, by Notification in special gazette that his country is to be Treated as reciprocating
country.
As The For the Executing the decree of Reciprocating Territory in India the simple
procedure has to be followed , 1 st of all an Certifying copy of decree (which has been
13
given by the superior Court of foreign territory) has to be filled before the District
Court, on Checking the authenticity the District court gives the Order that this decree
now can be executed and Further the decree holder Can File For execution of decree
in Indian Courts and All the courts consider the said decree as it has been passed by
the District court, And all the rules and Procedure were too followed as the decree has
passed in Indian Court or for the execution all the rules related to order 21 of Civil
procedure code will be applicable5.
While filling for execution of Decree in the Superior Courts the Original Decree
which has been passed by the Foreign Court and Certificate received by the District
court should be Submitted along with application for executing the decree.
Execution in Cases of Decrees from Non- Reciprocating territories.
As When application for execution of a decree passed by Foreign Court belonging to Mon
reciprocating Country then it is considered that A fresh Suit is File on the basis of the decree
obtained by the Foreign Court before The Indian Courts to decide on its Merit, While above
case it is considered that it is Passed by the District Court Of India, For the Purpose to
determine non -Reciprocating countries means the Countries other than who are termed as
reciprocating Countries, For which there is no mentioned by the central Government in its
Official gadgets.
Although the judgement is passed by the Foreign Courts of non-reciprocating Country. It

cannot be considered as valid decree for execution, for this purpose a new fresh case has to
filled on the basis of the decree obtained by the Foreign court and to obtain the decree as per
the Indian laws then only decree can be executed.
The Court Held His views in respect to how the Process of Execution of decree from Non-
Reciprocating Countries Takes Place – in the Case of “Marine Geotechnics vs Coastal marine
Construction & Engineering Ltd6” in this Case honorable Supreme Court held that if the
decree has been passed by the Foreign Court of Non-Reciprocating Countries or territory. For
the valid execution of a decree a Fresh suit is to filled before court of competent
Jurisdictional in Indian Courts on the basis of the foreign Decree or on Jurisdictional the
original Cause or both, And Such Decree must be passed within 3 years of passing the Decree
5
Kavita Chandra, Execution of Decree under Civil Procedure Code 1908, https://blog.ipleaders.in/execution-
decree/#:~:text=Section%2038%20of%20the%20Code,has%20been%20sent%20for%20execution. Last Visited
on 5 December 2020.
6
Company Petition No. 69 of 2013
14
by the Foreign Court and all the test have to be passed of the Section 13 of the civil
Procedure code.
Execution of Decrees passed by Indian Courts in Foreign Courts-
Section 45 of the code deals with how the decree passed in the Indian Courts can be executed
in the Foreign Court According to the provision of the act the decree of Indian Court can be
declared only when the said Courts has been established under Central Government authority
only, another Condition which is necessary for the execution is that state in its official gazette
must introduce the clause that the court in such foreign territory has power to execute the
decree passed by the Indian Courts and Said sections of the civil Procedure code must apply
to the courts. For the application of these section following condition should be fulfilled –
1st of all the decision must be passed By the Indian Court and sent it to for the execution to
other Court Situated in foreign countries, the 2nd thing which is necessary to filled as such
foreign courts need to established by the Central Government authority, after this an official
declaration made in official gazette that this rules and procedure of this code applies to the
that particular foreign court situated outside the territory of India7.
CHAPTER III- WHY COURTS PUTS STAY ORDER ON EXECUTION

OF A DECREE CAN DECREE CAN BE EXECUTED BY TWO OR
MORE COURTS
As in on the basis of earlier research it can be identified that the decree can be Executed of
the foreign Countries, as we have to file application for the executing a decree, the
application is filled because on the basis that court has decided that he may be awarded with
the relief, so why may court may put stay order on the execution of decree as the court only
declare that he /she will get the relief, so this Chapter will put forwards why the court orders
for stay of the Execution. And Further this chapter deals with how the decree can be executed
between 2 or more Courts.
Why Courts puts Stay order to execute a decree in the Favor of Decree Holder-
Provision which governs the Rules and Procedure regarding the Stay of execution has been
made under Order 21 And Rules 26-29 governs the provision related to the provision of
staying the order of execution – before Proceeding to research we should understand what is
7
Rachit Garg, Civil procedure Code Law notes 1908, https://blog.ipleaders.in/civil-procedure-code-1908-law-
notes/ last visited on 25 November 2020.
15
execution of a decree ,in Simpler terms it means the Procedure when the court Puts the order
to delay the execution of a decree in favor of Judgement creditor on the request or sufficient
cause has shown by the Judgement debtor on payment of necessary security to the executing
court that Particular decree cannot be executed for the reasonable period of time. There Also
exist a difference between the time for which stay has been granted the original court which
passes the Original Decree has Power to grant absolute Decree. The transferee court do not
have Power to grant absolute stay on the execution but it can only grant stay for the
reasonable period of time to enable the Judgement debtor to appeal for the higher courts.
Such stay on execution can only be granted when there has been appeal from the judgement
debtor. On the suitable application filled. The transferee court cannot invoke inherit powers
to grant stay. The Transferee court is also bound by the order made by the appellant court in
relation to execution of such decree8.
“According to Rule 27 of order 21 of the Civil procedure Code it means no orders of

restitution or discharge under rule 26 of the CPC shall prevent the Property or a person
of a judgement debtor from retaken in execution of the decree sent for execution”9.
According to rule 29 of the Civil procedure Code If there is a pending suit between
Judgement debtor and judgment creditor in another court, on the Application made by the
judgement debtor and furnishing necessary security, on the basis of this the court may grant
stay on execution till the disposal of this new case. By ordering Stay of order, the objects of
court can be identifying as – (1) To avoid Multiple executions. (2) To adjust claim Of each
other for enabling of this condition it must be there That the Cases between Judgement debtor
and creditor must be filled in same court which has to execute decree, the case must be
against the decree holder against the Judgement debtor10.
If the Court further considers this rule to order stay of execution decree but it must take into
the consideration that current decree holder must not be deprive of fruits which he ought to
receive unless good reason is given by the court. The decree holder should not be Deprive of
its Fruits mere by reason that other case has been filled by the judgement debtor, while giving
stay Order the courts must find out that Strong case made out of the cognate grounds. In case
of “Quazi Toufiqur Rahman v. Nurbanu Bibi, 11” It has been said that although according to
8
Sudhanshu Shekhar, Stay of Execution, https://www.academia.edu/11723265/Stay_of_Execution Last visited
on 30 November 2020.
9
Order 21 Rule 27 of The Civil Procedure Code.
10
Shaukat Hussain v. Bhuneshwari Devi, (1972) 2 SCC 731
11
AIR 1976 Gau 39 at p. 41.
16
provision of the code, stay on the decree can be Granted by the court on request made by the
application and furnishing the required Security, All Filling other case, the decision of Court
regarding Stay order according to rule 26 must be taken with good Care, and only in special
cases, so it cannot be used as tool to enable the Delay the Process of executing the decree.
Before 1976 (amendment act of Civil Procedure Code) the rule has been followed that only
the court which passes the decree can only order the stay order on the execution same power
is not given to the Transferers court, but after the amendment act it has been held that it
enables the Transferee court to also order stay on execution of decree but also a decree
passed by another court transferred to it for execution.
In the Case of “Judhister vs Surendra12” in this case the Honorable supreme Court Held That
the court does not take any unreasonable measures against the Person who has lawfully
obtained the decree in his favor , he should be deprives the fruits of the decree Except for the
certain good Condition, Until the decree has been set aside by the competent court it must not
be treated lightly and on the Probability that on filling another suit it will in the favor of the
judgement debtor, If the decree has Passed it is necessary that the court must execute in the
favor of the decree holder unless an Extraordinary case made out ,until then No stay can be
put on execution on false application made by the Judgement debtor, Even if the stay is
granted it must depends on suitable terms.
In the Case of “Krishna Singh vs Mathura Ahir” 13 it has been held that Supreme court that on
Stay for execution the Following two conditions needs to be fulfilled which are as Follows-
 1st of all this is that there must be two Simultaneously cases filled in one Court.
 After this another condition is that A case must be Filled by the judgement debtor
against the Decree Holder.
In what Conditions the decree can be executed in two or More Courts-
For the Purpose of executing a Decree at the two or Courts simultaneously there has been no
provision has been Laid down in the Civil Procedure code. But the views of supreme court
can be considered as it also is conside4rd as precedents which is also one of the sources of
Law. In the Case of “Prema Lata Agarwal vs Lakshman Gupta & others” 14, It has been held
by the apex court that decree holder can ask the two separate court execution of the Decree,
12
AIR 1969 Ori 233
13
AIR 1982 SC 686
14
1970 AIR 1525, 1971 SCR (1) 364
17
But the power should only be used in the restricted manner which means that Execution of
decree at one or Place does not Cause hardship to the Judgement debtor, it is Only Provided
in the exceptional circumstances Otherwise This Practice is Not preferred. Therefore,
simultaneously execution Proceedings are not illegal although there is no Previous regarding
This in Procedure Code, As the views of supreme Court are considered.
CHAPTER IV- VARIOUS MODES IN COURTS MAY EXECUTE A

DECREE & LIMITATION OF EXECUTING COURT &
CERTIFICATION
As in the previous chapters various things Such Who can execute decree, powers of the
Executing Court, why court orders Stay orders, now we have studied decree Holder will get
damages from the judgement order in all the instance but the question arises in which way
i.e., Mode in which decree can be executed. So, this Chapter will What are the Various
modes in which decree can be executed by the executing court.
The main Provision of relating to the Mode In which execution of decree can be done
according to Section 51 to 54 of the Civil Procedure code-
By sale of property but it is not

By Deleviry of Specific Property important wether it is attached or
whether Movable or Immovable Not
Modes in which
Decrees Can be
executed
Execution in the way By appointing
Also results in Arrest or detention Reciever . (If other mode for
of the Judjement debtor (After a executing a decree is done other
Suitable oppurtunity given to above mention then clause e of
Judgement debtor) the section comes ino the Play)
Fig 1.1 Modes in which Decree Can be executed
18
According to “Padrauna Rajkrishna Sugar Works Ltd. V Land Reforms

Commissioner15 ” it has been held by the court that Decree Holder may opt for any mode in
which decree may be executed. Same was held in the Curt in the case of “Shyam Singh Vs.
Collector, District Hamirpur16”a decree holder has the option to
choose a particular mode for executing and enforcing a decree in his Favor. It is for him to
decide in several mode he will execute the decree.
According to section 52 -54 of the code it means that-
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.
The various Modes are as Follows-
1. Delivery of property – It can be made in either two ways in case of Movable

Properties it must be directly Given to decree holder if this property is of sizeable
15
AIR 1969 SC 897
16
Supp 1 SCC 693,
19
size, but in case Immovable Property other rules are followed i.ie. The property can
be delivered to the person who can claim property under decree Holder. This delivery
has to be made only if the person residing on land has evacuated the said land, If this
is not done, If the Joint possession is to be given to the decree holder in the
Immovable property then the copy of warrant must be attached to a place where it is
visible, If the decree holder is unable to gain access in the immovable Property then
the court by any make Enable , either by breaking lock, or evacuating the land ,
breaking the door , so that he must not be deprived of his rights.
2. Attachment and Sale of property-
Section 60 of the Civil Procedure code provides the list of number of properties which
can be attached and sale for the purposes of executing the decree under Civil
Procedure Code, in Simple It means All the possible things which can be sold in open
market which either may be movable or immovable, but an exception is made relating
to Agricultural produce, According to section 61 of the code. If the Application is
made and after if application is made for executing demanding decree to be in form of
Payment in cash, but due to non-payment of money within the required time, the court
asks judgement debtor to put forward reasonable reasons why he has delayed
payment. on submitting of the reasons or invalid excuses made by the judgement
debtor the court feels that it is unnecessary to deprive decree holders the fruits of
Decree benefits. As a result of this court orders the Attachment and sale of the
Property For the purpose of determining the amount of property which is to be
attached the courts looks upon the books of the Judgement debtor in order to
announce attachment of property in relation to the amount which is needed to pay to
the debtor. Rule 41 of order 21 governs this rule. According to Section 64 of the Code
of Civil Procedure, any private alienation or transfer of property after the attachment,
then the transfer would be considered as void17.
3. Arrest and detention- According to section of the 74 of the code it talks about if the
judgement debtor is restricted the decree holder from obtaining possession or payment
of money then on Giving Several opportunities to the Sham judgement debtor if still,
he has not executed the decree in favour of the decree holder, then the Court orders
the arrest of the Judgement debtor if the court is satisfised that Decree Holder is
Deprive of the Fruits of the decree. Such debtor can be arrested in the any time of the
day and should be put before the Court, he should be detuned in the Civil Prison only.
No officer can enter the House after Sun set and before the sun rise, and satisfised
17
Mariya paliwala, Modes of execution Under Cpc, https://blog.ipleaders.in/mode-of-execution/ Last visited on
6 december,2020
20
debtor must be released if he pays the amount which he ought to pay the decree
holder. According to rule 39 of the order 21 of the Act, that the decree holder required
to pay some amount for maintenance to the judgement debtor in the civil prison until
he has brought before the court, If the decree Holder does not pay the said amount,
then Judgement debtor cannot be arrested. As per the section 56 of the code it means
That the women cannot be arrested for execution of the money decree. Section 58 of
the code provides or deals with procedure regarding Arrest and detention of the
Judgement debtor, He cannot be arrested for more than 3 months, If the decree
amount for Payment is more than 1000rs, if the decree amount is less than the 1000
but more than 500 Rs Then only 6 weeks detention must be there, on the basis of
Section 59 of the civil Procedure the judgement debtor can be released on the
Grounds of Illness.
4. Appointment of receiver- One of the modes of execution of a decree is the
appointment of a receiver. Execution by appointment of a receiver is known as
equitable execution and is entirely at the discretion of the court It cannot be claimed
as of right. It is thus an exception to the general rule stated above that it is for the
decree holder to choose the mode of execution and that the court has no power to
refuse the mode chosen by him. The appointment of a receiver in execution
proceedings is considered to be an exceptional remedy and a very strong case must be
made out in support of it. The Decree holder before resorting to this mode must show
that there is no effective remedy for obtaining relief by the usual statutory modes of
execution. The court also must be satisfied that the appointment of a receiver is likely
to benefit both the decree holder and the judgment debtor rather than a sale of the
attached property. It has also to be satisfied that the decree is likely to be realised
within a reasonable time from the attached properties so that the judgment debtor may
not be burdened with property while he is deprived of the enjoyment of it.
5. Partition- Where a decree is for partition or separate possession of a share of an
undivided estate assessed to the payment of revenue to the Government, the partition
or separation of the share should be made by the Collector. The object underlying this
provision is twofold: firstly, the revenue authorities are more conversant and better
qualified to deal with such matters than the civil court54, and secondly, the interests
of the Government with regard to the revenue paying estate would be better
safeguarded by the Collector than by the court.
6. Cross decree and Cross claims- Rule 18 enacts that cross decrees for the payment of
money shall be set off against each other. If the amounts under the two decrees are
21
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 part satisfaction upon the decree for the larger amount, and the execution will be
allowed only for the balance.
7. Payment of Money- All money which needs to be paid by the judgement debtor
should be exclusively be paid in 3 ways to settle claim as follows-
 By depositing in the Executing Court.
 In the court of decree holder.
 As per the Direction of Court which passed the decree.
Further This research also deals with The Limitation in which court has to take care while
executing a decree –
In the Case of “Mange Lal vs State of Madhya Pradesh 18” The court must look upon the
decree as it they have no option to amend or alter the decree it has to be executed in the same
way.
In this “VD Modi vs RA Rehman19” court held that the executing court has no power to alter
the decree it has accept the decree as it he executing court did not make any alteration in how
the decree can be executed it has to be in same way as the it is passed by the court in which
decree has been Passed.
In “State bank of Tran core vs Index Post registered 20” it was held as the executing Court has
no power to look upon the legality and reasoning of the Transferor court in executing the
decree.
In the Case of “Jitendra Mohan vs Rabindra Nath 21 ” it was held as if the Court which passed
the decree has no Jurisdiction, then the executing Court has no Power to execute the decree in
favor of the decree holder.
CERTIFICATION
18
MANU/MP/0841/2015
19
AIR 1970 SC 1975
20
MANU /MP/0841/2015
21
AIR 1993 PC 61
22
Section 41 of the Civil Procedure Code deals with the certification process it basically means
when the court has transferred the decree to another court for the execution of decree, and
when such execution has been done by the Transferee court. The executing court has to give
certificate to the original court which actually passed the decree that execution of the decree
has been done on the parameters said by the court.
In the Case of “Basheer Ahmad vs Padmanabhan22” The certificate of executing the decree
can only be Initiated when the decree has been executed, otherwise no certificate can be
issued before executing a decree.
In the Case of “Prahalad Vs Thakur 23” It has been held that If suppose the transferee court is
unable to execute the decree, then it is also the responsibility of said court to inform the Court
which passed original decree that, this court is unable to execute the decree with the reason
also needs to be mentioned stating Circumstances which let to non-executing of a decree.
CHAPTER V- PROCESS OF EXECUTION OF DECREE &

COMPARISION OF SAME PROCESS WITH THE ENGLISH LAW
As all the Important things related to execution has been mentioned in above Chapters so this
Chapter The research focuses on the comparison of process of execution is different in Indian
law with Respect to English Law-
So according to Indian Law the Process is as Follows-
Process After
Hearing of Notice For
Admission Notice of
Application Execution
Execution
Fig 1.2 Process of Executing A decree in Court of Law
As in India it is Rule that for execution of a decree an application must be filled before the
court, then the court Will take its admission, as per the Rule 17 of order but condition
necessary is that if The Applications invalid under Rule 11-15 then only court will take
admission otherwise it may deny the Application. In Next step The Court Hears the
application of the decree holder, After Hearing the application and court is satisfied that is
right to succeed for the execution then the court may issue a notice of execution to the
22
AIR 1953 MYS 37
23
AIR 1959 PAT 149
23
judgement debtor, that he his required to pay the damages to the decree holder in the mode
prescribe the Decree holder in the application for executing the decree, but if the decree
holder argues the execution then the court may hear both the Parties and do the needful. Then
After this Court will take necessary process which will be done after notice of execution. –
After this the courts asks to The Decree Holder to alter its drafts after the time he receives the
objection from the judgement debtor which is in the Court will approve any of its offices or
judge Himself to execute document itself., The next step is that court orders the register of the
document if it is required by Law and as The Decree is executed in Favor of decree Holder in
the next step it is duty of the Judgement debtor to answer the court that he has executed his
decree and Take no claim Certificate from the Court and The decree Holder must also
intimate the court that he received the amount24 –
Now the Question Arises why there is need for issuing Notice to the judgement debtor as the
decree has been recently passed by the court- but it is necessary because as limitation for
execution of decree is 12 years and he may not turn up and objects the execution, Other
reason is that Decree has been passed among 2-3 People. If the reason is that an Application
for execution is filled against the surety. Other reason is that if the judgement debtor is not
paid the amount which results in arrest of such person.
ENGLISH LAW PROVISION - As in Indian courts the Civil Court procedure rules are
governed by the Civil Procedure Code, but according to English law the said rules are
governed with the provision of the Civil Procedure rules (1998) which is the amendment act,
The enforcement of domestic judgments can take the form of a number of different
procedures, which are governed by various statutes, procedural rules and common law,
including in particular Parts 70 to 73, 81, 83, 84, 85 and 89 of the Civil Procedure Rules 1998
(CPRs). According to this provision which are laid down and on the basis of interpretation of
statutes it can be Identified that As the laws which governs execution of decree in India is
very similar to laws of England, As The many Indian Laws are based primarily on the
English law so the Various Provision of The Civil Procedure Code are similar to English
Law, Similarities exist in both the Laws , As they provide equal Modes of executing decree,
The English Court can also grant stay of the decision, All the decisions of the foreign Court
can be Executed in English Courts if they are at par with the English law but there is certain
difference between Indian Law And English Law As Indian Law divides the countries on the
24
Rahul Jain, Execution of decrees in India, https://www.mondaq.com/india/civil-law/985766/execution-of-
decrees-in-india Last visited on 25 November 2020.
24
basis of reciprocating and Non- reciprocating But the English Law divides this into the 6
regimes which are as Follows -Wales Regime, European Regime, Convention Regime,
Specific Bilateral Treaties on Enforcement, Common Law Regime, But the rules of all this
regime are different How to execute the decree in the United kingdom. This procedure code
also lays down the procedure Decree Passed by English Courts can be executed in different
parts of the world.
FINDINGS
On the basis of research, it is Found that There exists an indirect relationship between the
Court Which passes the decree and Which court execute decree most the time the court which
passes decree only executes it but there also several occasion where the court than Passes the
Decree. According to section 39 of the civil Procedure code it gives powers to other court to
execute decree reasons Specified in said Section. So, on the basis of research It Can Be said
that H1 can be accepted as the other court can execute decree if it is passed by one Court.
On The basis of Research, it can find out that H 2 can be rejected as it Says That there is
There exists a Direct relationship between the Decree passed By the Countries and Its
Execution. But There is no direct relationship but exist an indirect relationship as the Foreign
judgement Courts Decree can be executed in Indian Courts which is opposite to said
hypothesis as there are Various Rules How the Foreign courts decree can be executed also the
paper further looks upon how the decrees passed by Indian Courts can be Executed in
Foreign territory Courts.
On the basis of research, it can be identified That H 3 i.e. There Exist an Indirect Relationship
between The Court which passes a Decree will also Execute it within the Time (i.e., The
Court cannot order stay on execution). can be said that rejected, so as the courts can grants
stay on the execution as mentioned in the chapter 3 of the research it talks why execution can
be made and what are the various measure needed to be taken by the court while ordering
Stay so it can be said H3 is stand Rejected.
On the basis of Research H 4 i.e. There Exist a direct relationship between the Decree Holder
and application made for the execution. Can be accepted as although the other person than
decree holder can claim execution as it is somewhat related to the decree holder as mentioned
in the research, so there exists a direct relationship between the decree holder and whom can
claim execution of the decree.
25
On the basis of research, it can be said That H5 Can be Rejected as there exist a direct
relationship between how the decree can be executed in Indian Courts and In the English
Court As mentioned in the Chapter 6 of the Research, there is exist a no significant amount of
difference between the procedure how the decree can be executed in the courts.
LIMITATION OF RESEARCH-
In this research major Focus is made only towards Execution Procedure of the Civil
Procedure No other procedure has been looked upon as for example, procedure how the
summons will be served to the Plaintiff, How the attachment of property is to be done or the
Jurisdiction of the Court in which the case may be decided so This research is limited to only
the Concept of the execution only.
SUGGESTION AND RECOMMENDATION
So, on the basis of research it can be Said as all the provision of The Civil procedure code
relating to the execution of decree is Very well established and it is followed in the Indian
Courts. But as nothing is Perfect so with the extent of time there is also need of changing
some of the provision related to the execution of decree. As there are certain Provision in the
Code which leads to delay in execution of a decree, so new amendments must be made in the
civil Procedure code to repeal the provision of laws which delays the process of executing the
decree.
CONCLUSION
On the basis of research, it can be concluded that the Execution in the simple terms means to
implement the court orders in the favor of the decree holder, so that means the Justice must
be provided to the decree holders. This research also emphasizes on What are the Power of
the Courts, why courts can Order stay on the Decree. It can also be Concluded that the
Foreign Decrees can be executed under the Court of law Reasons Have been Mentioned in
the research it can also be concluded that decree passed by the Indian Court Can also be
executed in the court of foreign territory. It can also be concluded that it is the duty of court
who is dealing in cases to find each and every fact while passing the decree also the
Executing court must execute the decree in favor of the decree holder, so that the Justice must
not be delayed. the Court has to execute the decree according to provision laid down in the
case. It can be also Concluded that the with the application of executing the decree the mode
in which decree has to be executed should also be mentioned in the research, So this Paper
deals with various mode in which the Decree can be executed, On the basis of research I can
26
also be concluded that application of decree must be File within 12 years of passing the
decree with Original Court of law, If the Decree is Transfer to the another court the
Transferee court also must notice the transferor Court that they have executed the decree,
Also on the basis of research there is no Difference between Executing a decree In Indian
Courts and English court, and the courts of the foreign territory as mentioned in the research.
REFERENCES AND BIBLIOGRAPHY
ARTICLES AND JOURNALS
 Mariya paliwala, Modes of execution Under Cpc, https://blog.ipleaders.in/mode-of-

execution/ Last visited on 6 december,2020.
 Ajit Singh, Application for Execution,
https://www.legalpedia.co.in/legalnotes/application-for-execution.html Last Visited
on 25 November 2020.
 Rahul Jain, Execution of decrees in India,
https://www.mondaq.com/india/civil-law/985766/execution-of-decrees-in-india Last
visited on 25 November 2020.
 Sheen Kaul, Powers of executing Court, Introduction, Explanation, Limitation,

https://www.legalbites.in/power-of-executing-court last Visited on 1 December 2020.
 Rachit Garg, Civil procedure Code Law notes 1908, https://blog.ipleaders.in/civil-

procedure-code-1908-law-notes/ last visited on 25 November 2020.
 Sudhanshu Shekhar, Stay of Execution,
https://www.academia.edu/11723265/Stay_of_Execution Last visited on 30
November 2020.
 Kavita Chandra, Execution of Decree under Civil Procedure Code 1908,
https://blog.ipleaders.in/executiondecree/#:~:text=Section%2038%20of%20the
%20Code,has%20been%20sent%20for%20execution. Last Visited on 5 December
2020.
BOOKS-
 Civil Procedure Code, By CK Takwani
CASES
 (AIR 1964 ORI 170)
27
 1981 AIR 416, 1981 SCR (1) 732

 Company Petition No. 69 of 2013
 (1972) 2 SCC 731
 AIR 1976 Gao 39 at p. 41.
 AIR 1969 Ori 233
 AIR 1982 SC 686
 1970 AIR 1525, 1971 SCR (1) 364
 MANU/MP/0841/2015
 AIR 1970 SC 1975
 MANU /MP/0841/2015
 AIR 1993 PC 61
 AIR 1953 MYS 37
 AIR 1959 PAT 149
 AIR 1969 SC 897
 Supp 1 SCC 693,
28
29

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CIVIL PROCEDURE CODE

CIVIL PROCEDURE CODE

Under the Guidance of – Prof. Kanchan Shukla

Submitted By – Sarthak Neema

1. Abstract …………….………….………….…….………………….............. Pg. 5

4. Review of literature …………………………….…………............................Pg. 6-7

5. Background of Research……………………………………………………. Pg. 7

6. Review of Literature Gap.………………………............................................Pg.7

7. Research objectives……………………………………...……………. ……. Pg.7-8

9. Hypothesis …………………………………………………….……………. Pg.8

10. Chapter I………………………………………………………………………Pg. 8-10

11. Chapter II………………………………………………………..................... Pg.10-14

12. Chapter III………………………………………………………………….…Pg. 15-17

13. Chapter IV…………………. ………………………………………………. Pg. 17-22

14. Chapter V……………………………………………………………………. Pg. 22-24

15. Findings……………………………………………………………………… Pg.24-25

16. Limitation of Research …………………….....................................................Pg.25

17. Suggestion and Recommendation………………………………………….... Pg. 25

18. Conclusion…………………………………………………………………… Pg.25-26

19. Bibliography and References……………………………… …………………Pg.27-28

Execution, Decree, Stay of execution, Mode of execution. Judgement Debtor, Judgement

REVIEW OF LITERATURE GAP

 To find out which Court has Power to execute the decree.

CHAPTER I- APPLICATION FOR EXECUTION OF A DECREE

 Decree holder, as he Has won the Case,

 1st of all the Suit Number has to be Entered,

CHAPTER II- WHICH COURT HAS POWER TO EXECUTE THE

DECREE AND CAN FOREIGN DECREES CAN BE ENFORCED IN

Decrees can Be executed by –

 The Court Which Passes It.

Procedure of Transfer of Decree –

Powers of the Most Transferor, Transferee Court In executing The Decree-

Before Starting Chapter, we should understand what is Foreign Judgement so in Simple it

Execution of foreign decree of a reciprocating territory in India.

Execution in Cases of Decrees from Non- Reciprocating territories.

Although the judgement is passed by the Foreign Courts of non-reciprocating Country. It

Execution of Decrees passed by Indian Courts in Foreign Courts-

CHAPTER III- WHY COURTS PUTS STAY ORDER ON EXECUTION

“According to Rule 27 of order 21 of the Civil procedure Code it means no orders of

In what Conditions the decree can be executed in two or More Courts-

CHAPTER IV- VARIOUS MODES IN COURTS MAY EXECUTE A

By sale of property but it is not

Fig 1.1 Modes in which Decree Can be executed

According to “Padrauna Rajkrishna Sugar Works Ltd. V Land Reforms

According to section 52 -54 of the code it means that-

The various Modes are as Follows-

1. Delivery of property – It can be made in either two ways in case of Movable

CHAPTER V- PROCESS OF EXECUTION OF DECREE &

So according to Indian Law the Process is as Follows-

Fig 1.2 Process of Executing A decree in Court of Law

REFERENCES AND BIBLIOGRAPHY

ARTICLES AND JOURNALS

 Mariya paliwala, Modes of execution Under Cpc, https://blog.ipleaders.in/mode-of-

 Sheen Kaul, Powers of executing Court, Introduction, Explanation, Limitation,

 Rachit Garg, Civil procedure Code Law notes 1908, https://blog.ipleaders.in/civil-

 Civil Procedure Code, By CK Takwani

 (AIR 1964 ORI 170)

 1981 AIR 416, 1981 SCR (1) 732

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