Execution of Decree and various modes of execution (Section 34 -76 & Order

21)

The litigation consists of three stages, initiation of litigation, adjudication of

litigation, and implementation of litigation. The last stage of litigation, that is the
implementation of litigation is known as an execution. Once a decree or judgment
is passed by the court, it is the obligation of the person against whom the judgment
is passed (judgment-debtor), to give effect to the decree so as to enable the decree-
holder to enjoy the benefits of the judgment.

By execution, a judgment-debtor is compelled to carry out the mandate of the

decree or order. Execution implies giving effect to an order or judgment of a court
of justice. When the decree-holder gets the thing granted to him by judgment,
decree or order, the execution is complete.

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means
implementing or enforcing or giving effect to an order or a judgment passed by the
court of justice. In simple words “execution” means the process of enforcing or
giving effect to the decree or judgment of the court, by compelling the judgment-
debtor to carry out the mandate of the decree or order and enable the decree-holder
to recover the thing granted to him by judgment.

Illustration:

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X
would be called the decree-holder, Y is the judgment-debtor, and the amount of Rs
20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is
passed against him. Suppose Y refuses to pay the decretal amount to X, X can
recover the said amount by execution through the judicial process. The principles
governing the execution of a decree or order are given in Section 36 to Section 74
(substantive law) and Order 21 of the code which provides for procedural law.

Execution proceedings under CrPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the
provisions of the code relating to the execution of orders and decree and stated that
the Code contains elaborate provisions which deal with all questions regarding
executability of a decree in all aspects.

The Court further observed that numerous provisions of Order 21 take care of
various situations providing effective remedies to judgment-debtors, decree-
holders and claimant objectors. In the cases, where provisions are not capable of
giving relief inadequate measures and appropriate time, to an aggrieved party, then
filing a regular suit in the civil court is the solution.

The Court further explained that the judicial quality of the remedy under Civil
Procedure Code is considered to be superior as compared to other statutes
therefore, the judges are expected to do better as they are entrusted with the
administration of justice

Courts which can execute decrees

Section 38 of the Code states that a decree can be executed either by the Court of
the first instance or by the Court to which it has been sent for execution.
Section 37 of the Code further establishes the scope of the expression “court
which passed a decree” with the object of enabling a decree-holder to recover the
fruits of the decree. The courts which fall within the said expression are as follows:

1. The court of the first instance;

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

Explanation to the section clarifies that the court of first instance shall have
jurisdiction to execute a decree even in the case of any area being transferred from
the jurisdiction of the court of first instance to the jurisdiction of any other court. In
such cases, the court to the jurisdiction of which such area has been transferred will
also have jurisdiction to execute the decree, provided that the said court had
jurisdiction to try the said suit when the application for execution was made.

Transfer of decree for execution

Section 39 provides that when a decree-holder makes an application to the court of

the first instance to send the decree for execution to another court, the court of first
instance may do the same if any of the following grounds exist:

1. if the judgment-debtor carries on business, or resides or personally works

for gain, within the jurisdiction of such Court;
 2. if the property of judgment-debtor does not come under the jurisdiction of
the Court of the first instance but it comes under the local limits of the
jurisdiction of such Court;
3. if the decree directs delivery or sale of immovable property situated
outside the jurisdiction of the Court which passed the same;
4. if the Court which had passed the decree considers that the decree should
be executed by another court, but it shall record the reasons in writing for
doing the same.

Section 39(2) states that the Court of the first instance may suo motu send it for
execution to any subordinate Court of competent jurisdiction.

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

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

Procedure in execution

Section 51 to 54 of the Code talks about the procedure in execution.

Section 51

The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may
execute decree as per the mode of implementation prayed by the decree-holder or
as the court deems fit.

Mode of executing decree (Section 51 & Order 21)

Section 51 states the following modes of execution:

 By delivery of any property (movable or immovable) specifically

decreed.
 By sale of the property with or without the attachment of the property. If
the property is situated within the jurisdiction of the court then it has the
power to attach the property.
 By arrest and detention. However, this mode should not be exercised
without giving a reasonable opportunity to the judgment-debtor, in the
form of a show-cause notice as to why he should not be imprisoned.
 Execution by appointing a receiver
 If any other mode apart from the ones mentioned in clause(a) to (c) needs
to be used in the execution of a decree then clause(e) comes into play.

Section 52

This section deals with the cases where the decree is passed against the legal
representative of the judgment-debtor (deceased). So long as the property of the
deceased remains in the hands of a legal representative, a decree can be executed
against the property, if it is for the payment of money out of the property of the
deceased and if the decree has been passed against the party as the legal
representative of the deceased person.

In a situation where the property which is in the possession of the judgement-

debtor came in the hands of the legal representative and it has not been duly
applied by him, the court will enforce the execution of the decree against him as if
the decree was to the extent passed against him personally.

Section 53

The Section states that when a property is liable for payment of a debt of a
deceased ancestor and it is in the hands of a son and descendant, then the property
will be deemed to be of the deceased which has as his legal representative come
into the hands of the son or other descendants.

Section 54

When a decree has been passed for partition or for the separate possession of a
share of an undivided estate for the payment of revenue to the government, this
section comes into play. The partition of the estate or share needs to be made by
the collector, but if the collector denies making the partition of the revenue paying
property, then the civil court can do so. To attract the provisions of this section, the
plaintiff asking for the division of government revenue is not deemed as an
essential condition.
Mode of executing a decree

1. By delivery of any property (movable or immovable) specifically decreed.

2. By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power
to attach the property.
3. By arrest and detention. However, this mode should not be exercised
without giving a reasonable opportunity to the judgment-debtor, in the form
of a show-cause notice as to why he should not be imprisoned.
4. Execution by appointing a receiver.
5. If any other mode as mentioned by the Court.

By delivery of any property (movable or immovable) specifically decreed

Movable Property (Section 51 {a}, Order 21, Rule 31)

Where the decree is for any specific movable property it may be executed
1. by seizure and delivery of that property;
2. or by detention of the judgement debtor;
3. or by the attachment and sale of his property;
4. or by attachment and detention both.
the word specific movable property does not include money therefore a decree for
money cannot be executed under rule 31.

Immovable Property (Section 51 {a}, Order 21, Rule 31)

Rule 35 and 36 provide the mode of executing decrees for possession of

immovable property to the decree holder. where the decree is for immovable
property in the possession of a judgement debtor or in the possession of the person
bound by the decree, it can be executed by removing the judgement debtor or any
person bound by the decree and by delivering possession thereof to the decree
holder.

By sale of the property with or without the attachment of the property.

If the property is situated within the jurisdiction of the court then it has the power
to attach the property.

Section 51 (b) empowers the court to order execution of a decree by attachment

and sale or by sale without attachment of any property.
the court is competent to attach the property if it is situated within the local limits
of the jurisdiction of that Court.
Rule 54 provides for the attachment of immovable property and the procedure for
the proclamation of such attachment.
the object of rule 54 is to inform the judgement debtor about the attachment so that
he may not transfer or create encumbrance over the property there after.
By arrest and detention.

This mode should not be exercised without giving a reasonable opportunity to the
judgment-debtor, in the form of a show-cause notice as to why he should not be
imprisoned.

Where the decree is for payment of money it can be executed by arrest and
detention of a judgement debtor. likewise, in case of a decree for specific
performance of contract or for injunction, a judgement debtor can be arrested and
detained.
the judgement debtor they may be arrested at any time and on any day in execution
of a decree.
Section 55 states that
 after his arrest, he must be brought before the court as soon as practicable.
 for the purpose of making arrest no dwelling house may be entered after
sunset and before sunrise.
 no outer door of a dwelling house shall be broken unless such dwelling
house is in the Occupancy of the judgement debtor and he refuses or
prevents access thereto.

Rule 30 deals with the arrest and detention where the decree is for payment of
money and
Rule 31 talks about arrest and detention where the decree is for specific movable
property.
proviso to Section 51 states that where the decree is for the payment of money,
detention should not be ordered unless after giving the judgement debtor an
opportunity of showing cause.

Section 58 states that

no order of detention can be passed where the total amount of decree does not
exceed 2000 rupees.
if if the sum of degree is from 2000 to 5000 detention period will be up to six
weeks and for a sum exceeding 5000 rupees detention could be up to three months.

Section 56 clearly States that no order for the arrest or detention of a women in
civil prison can be passed in execution of a decree for the payment of money.

In Jolly Varghese versus bank of Cochin, AIR 1980, SC 740

It was held for arrest and detention, the simple default to discharge is not enough.
there must be some element of bad faith beyond mere Indifference to pay.