Execution Proceedings

Sections 36-74,
Order 21
 Execution- Meaning & Concept
Word ‘Execution’ not defined in the code.
Execution means the enforcing or giving effect to the decree/order of the court.
Decree Holder and Judgment Debtor.
Execution is the enforcement of the decree/order by the process of the court so as to
enable the decree holder to realize the fruits of the decree, judgment or order.
Section 36 – 74 of the CPC provides substantive law relating to execution of decrees and
orders
Order 21, CPC provides for exhaustive procedure for the execution of the decrees and
orders.
Order 21 contains 106 rules and is the longest of all orders in CPC.
 Illustration
A files a suit against B for Rs. 50,000 and obtains a money- decree against him from the
court. (Money decree - a decree for the payment of money).
Here A is the Decree Holder (DH) and B is the judgment debtor (JD). Rs. 50,000/- is the
judgment debt.
If B (JD) refuses to satisfy the decree passed in favour of A (DH), then A may apply to the
court for the execution of the decree i.e. A (DH) may recover the said amount from B by
getting the money decree executed through judicial process.
A (DH) may apply for the execution of a money decree against B’s person (JD’s detention in
Civil Prison) or by attachment and sale of the property of the JD or by both. (Rule 30, Order
21).
Order 21, Rule 30 provides mode of execution of money decree.
 Section 36, CPC- Application to Orders
Application of provisions relating to decree to execution of
orders.

Rules relating to payment under a decree shall also be

deemed to apply to payment under any order. (e.g. A
Maintenance Order)
 Court which may execute a decree- Section 38

A decree may be executed either-

◦ By the court which passed the decree (defined in S. 37), or
◦ By the Court to which it is sent for execution. (Transfer of
decree for execution)
 Court which passed the Decree- Section 37
Section 37 defines the expression-”the court which passed the decree”. The section enlarges
the scope of the expression.
The following courts fall within the said expression “the court which passed the decree”
1) The court of first instance which originally passed the decree.
2) The court of first instance in case of appellate decrees.
3) Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution.
In these courts the DH may file an application for the execution of the decree. These all
courts would be considered as the “Court which passed the decree”.
 Explanation to Section 37- Transfer of Territorial
jurisdiction
Situation – Court ‘A’ passed a decree and thereafter a part of the
area within the jurisdiction of court A was transferred to Court ‘B’.
Question arises:
A) Whether Court A continues to have jurisdiction to entertain an
application for execution?
(b) Whether Court ‘B’ to whom such area has been so transferred
can also entertain an application for execution - without a formal
transfer of decree from court ‘A’ to Court ‘B’?
Explanation to S. 37 gives the answer to this situation-
Answer- Both the courts would be competent to entertain the
application for execution.
The other court shall also be competent to entertain the
execution application if at the time of making the application
for execution, such court had the jurisdiction to try that suit.
 Transfer of Decree Section 39-42, Order 21, Rules 3-9

◦ Sections 39 – 42 provides for transfer of decree for execution

◦ by a court which passed the decree – to - another court.
◦ Under S. 39, CPC –
◦ Such transfer may be made by the court either – on application by DH
(sub-section 1 of S. 39) or suo motu (sub sec 2 of S. 39)
 Circumstances for Transfer of Decree- Section 39.

 JD actually and voluntarily resides or carries on business or personally works for

gain in within the local limits of the jurisdiction of the other court, or
 JD has no property within the local limits of the jurisdiction of the court which
passed the decree sufficient to satisfy such decree and has property within the
jurisdiction of another court, or
 The decree directs sale or delivery of any immovable property situated outside the
local limits of the jurisdiction of court which passed the decree etc.
 Sub section (3) to Section 39

Court of Competent Jurisdiction (Transferee Court)

A court would be considered as a court of competent jurisdiction

if at the time of making the application for the transfer of decree to
it, such court has jurisdiction to try the suit in which the decree was
passed.
 Sub section (4) to S. 39
A court which has passed a decree shall not be authorised to execute such decree against
any person or property outside the local limits of its jurisdiction.
Court ‘A’ passed the decree in favour DH and against JD and JD resides in jurisdiction of
the Court ‘B’.
Here the Court A shall not be authorise to execute the decree passed by it and the decree
shall be sent for execution by Court ‘A’ to Court ‘B’.
Similarly, such decree cannot be executed by Court ‘A’ against any property situated in the
local limits of Court ‘B’.
The decree would be transferred by Court ‘A’ (Transferor Court) to Court ‘B’ (Transferee
Court) for execution.
The application for execution would then lie to the court to whom the decree has been
transferred.
 Powers of the Executing (Transferee) Court in
case of transferred decree – S. 42
The transferee court shall have the same powers as were with the court which passed
the decree. (Sub-section (1), S. 42)
All persons who are disobeying or obstructing the execution of the decree shall be
punishable in the same manner as if the decree was passed by the transferee court.
(Sub-section (1), S. 42)
The order made by such transferee/executing court shall be appealable in the same
manner as if this decree was passed by this transferee court. (Sub-section (1), S. 42).
 Additional Powers
The transferee court shall have the following powers in addition to the powers mentioned
in the sub- section (1)
◦ Power to send the decree to another court of competent jurisdiction.
◦ Power to execute the decree against the legal representative of the of the deceased JD
under S. 50.
◦ Power to order attachment of a decree passed in favour of the JD.
◦ When such an order as mentioned in subsection (2) is made by the court- such court
shall send the copy of the order to the court which passed the decree.
 Principle - Executing Court cannot go behind the
decree
The executing court has to execute the decree as it is. It cannot question the
correctness/validity of the decree.
The executing Court has no power to entertain any objection as to the validity of the
decree or as to the legality or correctness of the decree.
The reason underline the above rule is that,
although a decree may not be according to law,
it is binding and conclusive as between the parties to the suit,
unless it is set aside in appeal or revision.
It is for the same reason that, the Court executing a decree cannot alter, vary or add to
the terms of the decree even with the consent of the parties.
 Topanmal vs M/S Kundomal Gangaram
AIR 1960 SC 388

Supreme Court held that-

An executing Court must take the decree as it stands. An executing
Court cannot go behind the decree. It can neither add something in
the decree already passed, nor alter the decree. It cannot grant relief
which is not contemplated by the decree.
 Karansing v. Chaman Pawan (1955) 1 SCR 117

SC held that –

A decree passed by a Court without jurisdiction is a nullity, and

its validity can be set up whenever and wherever, it is sought
to be enforced or relied upon, including the stage of its
execution.
If the court which passed the decree has no inherent
jurisdiction, the decree is incapable of execution.
 Who can move an Application for Execution?
The decree holder himself.
His legal representative if the decree holder is dead. (Children of the DH)
Any person claiming under the decree holder. (In a suit for permanent injunction, the
tenant is a person claiming through the landlord, he can file for the execution of the suit for
permanent injunction restraining forcible dispossession by the JD.
Transferee of Decree holder (transfer of interest of the DH in the decree by assignment in
writing) who has given notice to transferor and judgement debtor.
 Example
 A got a decree in his favour and against B for the recovery of Rs. 3 lacs from
B.
A owed Rs. 3 lacs to C. He assigned his interest in the decree (to recover Rs.
3 lacs from B) in writing to C.
Here C is the transferee of the decree by assignment so he can apply for
execution but he would only apply for execution in the court which passed the
decree and cannot apply for execution in the court to which a decree has
been transferred. (Rule 16, O.21.)
 Section 47 – Questions to be determined by the Executing
Court
S. 47 - important provisions in the Code relating to execution.

Applies only to matters arising subsequent to the passing of the decree and during execution and deals with
objections to execution, discharge of the decree and satisfaction of the decree

Such question may arise between the parties or their legal representative.

Such questions are to be determined by the executing court and not by a separate suit.

Object: to provide a cheap and expeditious remedy for the determination of those questions which may
arise during the execution proceedings.

Object is to prevent a separate litigation to decide such questions.

 Questions that may arise during execution
Whether the property is liable to be sold in execution of the decree?
Whether the application for setting aside sale in execution of the decree is maintainable
or not?
Whether a person is a legal representative of the DH or JD or not.
There shall not be a separate suit filed for deciding these questions and such questions
shall be decided by the executing court.
In Jugal Kishore v. Raw Cotton Co Ltd. AIR 1955 SC 376
Held that once the decree has been passed, section 47 requires that all the questions
relating to the execution, discharge or satisfaction of decree shall be determined by the
executing court and filing of a separate suit is barred.
 Modes of Execution

Section 51 provides for Modes of Execution.

 Mode of executing decree under Section 51
The Court may order execution of the decree by:

(a) By delivery of any property specifically decreed. Property may be movable or immovable

(b) By attachment and sale of the property or by sale without attachment of the property.

(c) by arrest and detention (for such period not exceeding the period specified in S. 58, where
arrest and detention is permissible under that section.)

(d) by appointing a receiver.

(e) in such other manner as the nature of the relief granted may require
 Choice of Mode of Execution
The Code allows more than one mode of Execution.

The DH has the option to choose a particular mode of execution of the

decree.

However, the option so given to the DH is subjected to the conditions and

limitations prescribed in the Code.
 By Delivery of Property- Movable or Immovable

Section 51 (a) and Order 21, R 31 – Deals with delivery of Movable property
Where the decree passed is for any specific movable property (a car etc.) it may be
executed by:
◦ The seizure and delivery of property to the Dh or to any person appointed by the DH to receive
the property , or
◦ By detention of the judgment debtor, or
◦ By attachment and sale of his property, or By attachment and detention both.
◦ Specific movable property does not include ‘money.’
◦ A money decree is to be enforced not under Rule 31 but under Rule 30, Order 21. (by detention
or by attachment or by both).
Attachment made under Rule 31 to remain in force till
three months and if the decree is not obeyed by the JD
then -
the attached property may be sold and from the sale proceeds –
the court would pay to the DH the amount fixed in alternative of
delivery (if any) and
if no such amount fixed then such compensation as the court
thinks fit and the balance amount shall be paid on his application
to the JD.
 Vacancy of attachment under O.21 R. 31- Release of attached
property
◦ The property shall be released from attachment where -
◦ Either the JD has obeyed the decree and paid all costs of executing
the same, or
◦ Where, at the end of three months from the date of the
attachment, no application has been made for the sale of the
property the DH, or if made, has been refused.
◦ In these situations, the attachment shall cease.
 Delivery of Immovable Property – O. 21 R. 35 & 36
Order 21, R. 35 and 36 CPC deals with procedure of execution of decrees for recovery of
possession of immovable property.

Where the decretal property is in the possession of the JD - decree can be executed by
removing the person bound by the decree from the property and delivery of the same to
the DH/his agent. (Known as Khas or Actual Possession).

Once DH establishes the identity of the decretal property to be delivered, the decree can
be executed by putting the decree holder in possession of the immovable property.
But where the property is in possession of any person not bound by the
decree (a tenant or any person entitled to the possession of the property),
symbolic possession may be granted by -
affixing a copy of the warrant in some conspicuous place on the property
and proclaiming to the occupant (tenant) by beat of drum/ any other
customary mode – the substance of the decree.(Substance of the decree
shall be read over- “Munadi”).
This is known as delivery of symbolic possession. (Rule 36, Order 21.)
Where the JD or any person bound by the decree does not provide
free access to the property -
The officers of the court may after giving reasonable warning and
opportunity to a pardanashin lady to withdraw,
remove or open any lock or break open any door to enter the
building/property so as to put the decree holder in possession.
 Attachment of Property

Any Property – Movable or Immovable can be attached in the

execution of a decree.
Executing court would attach the property situated within its territorial
jurisdiction.
In such a case the residence/place of Business of the JD outside the court’s jurisdiction
is immaterial.
Sections 60 to 64 and Rules 41 to 57 of Order 21 deals with the
‘Attachment of property’.
The code enumerates properties which are liable to be attached and sold in
execution of a decree.
Section 60 CPC provides which properties are liable to attachment and which are
not. (Lands, houses, goods, money, money bonds, shares, agricultural produce etc.
are attachable.)

It also specifies properties which are not liable to be attached or sold.
Before ordering attachment, the Court must satisfy itself that the J.D. has attachable interest
in the property, and that the property is not exempt from attachment. (Proviso to S. 60 CPC)

While ordering attachment of salary regard may be had to the portion of salary not liable to
attachment. (Limits on attachment of salary are provided in S. 60 Proviso).

Certain allowances are exempt from attachment.

 Allowances of persons to whom Air Force Act, Army Act, Navy Act applies.

 Books of accounts, tools of artisans etc. are not to be attached and sold in execution of decree.

 Agriculturists implements, stipend and gratuity allowed to government pensioners, PF amount etc.
In execution of a decree for maintenance - One third (1/3) of the salary of
J.D. is exempted from attachment. (i.e. 2/3 salary can be attached in case of a
decree for maintenance).

In case of other money decrees - Salary to the extent of first one thousand
rupees and two third of the remainder are not liable to attachment.

Thus, if the J.D. gets a salary of Rs. 10000/- the first Rs. 1000/- plus two
third of the remainder (9000) – i.e. Rs. 6000/- in all Rs. 7000/- would be un-
attachable, leaving only Rs. 3000/- available for attachment.
 Sale of Attached Property
Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of
movable and immovable property.
Court has the power to order sale of the property attached –whether movable or
immovable. (Rule 64a)
Such sale shall be made by officer of the court and by public auction and proclamation of
the intended sale shall be made. (Rule 65 & 66- Rule 66 provides the procedure for
proclamation).
Sales of Immovable property can be ordered only by a Court other than court of small
causes. (Rule 82).
Sale of immovable property once ordered can also be postponed on application of the JD-
so as to allow him to raise money- by mortgage, lease or private sale etc. Time shall be
given by the court.
Before ordering sale, the court has to decide -
whether it is necessary to bring entire attached property
to sale or such portion thereof as may seem necessary to
satisfy the decree.
If the property is large and decree to be satisfied is small -
the court must bring to sale only such portion of the
property the proceeds of which would be sufficient to
satisfy the claim of the decree holder.
 Arrest and Detention – Section 55

One of the modes of executing a decree is arrest and detention of the

judgment-debtor in civil imprisonment.
Where the decree is for -
payment of money (R. 30) or
for specific performance of the contract/Injunction (R. 32) –(In case of a decree
of specific performance/Injunction is made against a Corp- by detention of the
directors of the Corp.)
it can be executed by arrest and detention of the judgment-debtor.
Proviso to Section 51- lays down conditions that where the decree is for
payment of money- execution by arrest and detention shall not be ordered
unless the court is satisfied that
 the JD is -
 likely to abscond or leave the jurisdiction of the court or
 after the institution of the suit in which the decree is passed- dishonestly transferred,
concealed any property or
 where after passing of the decree he has had means to pay the amount of the decree
but refuses or neglects or has refused/neglected.
 JD shall be heard, by issuing notice to appear, to show cause why he should not be
committed to civil prison.
Following points are very important regarding arrest and detention :-

A judgment-debtor may be arrested at any time on any day in execution of a decree.

After his arrest, he must be brought before the court as soon as practicable. (S. 55)

For the purpose of making arrest, no dwelling house may be entered after sunset or
before sunrise. Further, no outer door of a dwelling house may be broken open unless
such dwelling house is in the occupancy of the judgment-debtor and he refuses or prevent
access thereto. (Proviso S. 55)

No order of detention of the judgment-debtor shall be made where the decretal amount
does not exceed Rs.2000. (in case of decree for the payment of money.)
d. Where the judgment-debtor pays the decretal amount ( in case of a decree for payment of money) and
costs of arrest to the arresting officer, he should be released once. (Rule 38. O 21, Proviso 4 to S. 55)

Subsistence allowance of the JD after his committal in civil prison is to be paid by the DH. Unless subsistence
allowance is paid, the JD shall not be arrested.

O. 21 Rule 40 provides the procedure to be taken by the court when the JD is produced before the court after
his arrest.

Where the JD is a women in case of a money decree – No arrest and detention in Civil Prison of such women
in execution of such decree. (Section 56)
S. 58 provides for period of detention and release.

For execution of a money decree where the money is to be recovered is

exceeding Rs. 5000/- for a period not exceeding 3 months.

For execution of a money decree where the money is to be recovered is

exceeding Rs. 2000/- but not exceeding Rs. 5000/- for a period not exceeding
6 Weeks.
 Release of the JD From Civil Prison- Proviso to S. 58
The JD shall be released from Civil prison before the expiration of the said period of detention –
 On amount mentioned in the warrant being paid
On the decree against him being otherwise fully satisfied
On the request of the person on whose application he was so detained
On omission to pay the subsistence allowance – by the person on whose application he was
detained.

Once such JD is released from detention- he shall not be discharged from his debt- but he shall
not be re-arrested in the execution of the decree.(S. 58 Sub-Section 2).
S. 59- JD can be released on ground of serious illness. He can be re-arrested later but period of
detention shall not exceed the period prescribed in S. 58.
 S. 51 (D) – By Appointment of Receiver

Execution by appointment of a receiver is known as the Equitable

Execution. Order 40, CPC contains provisions for appointment of receiver.

It is entirely upon the discretion of the court to allow execution by this
mode & cannot be claimed as a matter of right.

The object of appointing a receiver under clause (d) is to preserve the

property of the judgment debtor.
 The Court can appoint an impartial person known as
a receiver in order to execute the decree and the
receiver:
Administers, manages and protects the property;
Collect rents and profits from the property so managed by
him;
The application and disposal of rents and profits;
Thank you