TABLE OF CONTENTS

1. Introduction : Concept of Execution……………..………05

2. Procedure in Execution – Relevant Provisions and Judicial

Approach…………………………………………………09

3. Process of Execution – Relevant Provisions and Judicial

Approach……………………………………………...….15

4. Conclusion and Suggestion…………………………....…18

5. Bibliography.......................................................................19

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 Introduction : Concept of Execution

Execution is the last stage of any civil litigation. There are three stages in litigation:

 Institution of litigation.
 Adjudication of litigation.
 Implementation of litigation.

Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of plaint. Decree means
operation or conclusiveness of judgement. Implementation of a decree will be done only when
parties have filed application in that regard. A decree or order will be executed by court as
facilitative and not as obligation. If a party is not approaching court, then the court has no
obligation to implement it suo moto. A decree will be executed by the court which has passed the
judgement. In exceptional circumstances, the judgement will be implemented by other court
which is having competency in that regard.

Execution is the medium by which a decree- holder compels the judgement-debtor to carry out
the mandate of the decree or order as the case may be. It enables the decree-holder to recover the
fruits of the judgement. The execution is complete when the judgement-creditor or decree-holder
gets money or other thing awarded to him by judgement, decree or order.1

The Law relating to execution of decrees is to be found in Sections 36 to 74, Sections 82 and 135
and Order XXI of the Code of Civil Procedure. After the judgment attains finality or where there
is no stay in the execution by any appellate or revisional Court, it is the Court of original
jurisdiction which performs this sacred act of implementation of the execution. It has been often
seen that in view of less number of units prescribed for execution of the decree, the executions
are not given that much time and importance as required and desired. It is only the execution,
which reveals and signifies the importance of the decrees to be passed and the pedestal of the
Court and sanctity of the document. As such, the decrees are required to be executed with force,

1
Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7th Edition.Eatern Book Compny. Pg. 616.

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so that the decree-holder having a document containing declaration of his rights may not feel
cheated or helpless having earned no fruits of the lis got settled by him from the Court even after
spending considerable time and money altogether.

Meaning of Execution :

The term “execution” has not been defined in the code. The expression “execution” means
enforcement or implementation or giving an effect to the order or judgement passed by the court
of justice.2 Simply “execution” means the process for enforcing or giving effect to the judgement
of the court.3 Execution is the enforcement of decrees and orders by the process of court, so as to
enable the decree-holder to realise the fruits of the decree. The execution is complete when the
judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement,
decree or order.

Illustration:

A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is the decree-
holder. B is the judgement-debtor, and the amount of Rs 10,000 is the judgement- debt or the
decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000 to A.
Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can recover the
said amount from B by executing the decree through judicial process. The principle governing
execution of decree and orders are dealt with in Sections 36 to 74 (substantive law) and order 21
of the code (procedural law).

Supreme Court in Ghanshyam Das v. Anant Kumar Sinha4 dealing with provision of the code
relating to execution of decree and orders, stated, “ so far as the question of executability of a
decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for
dealing with it in all aspects. The numerous rules of Order 21 of the code take care of different
situations providing effective remedies not only to judgement-debtors and decree-holders but
also to claimant objectors, as the case may be. In an exceptional case, where provisions are

2
Halsbury’s Laws of England (4thedn.)Vol. 17 at p.232; Concise Oxford English Dictionary (2002) at
p.497
3
Overseas Aviation Engineering, In re, (1962) 3 All ER 12: 1963 Ch D 24 (per Lord Dening)
4
(1991) 4 SCC 379: AIR 1991 SC 2251

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rendered incapable of giving relief to an aggrieved party in adequate measures and appropriate
time, the answer is a regular suit in the civil court.”

PRINCIPLES WITH REGARD TO EXECUTION OF DECREE AND ORDER5:

 Provision of Code of Civil Procedure relating to execution of decree and order shall be
made applicable to both Appeal and Sue.
 A decree may be executed by the court which passed the judgement and decree or by
some other court which is having competency to implement the judgement passed by
such other court.
 The court which passed the decree may send it for execution to other court either on
application of the applicant (decree-holder) or by the court itself.
 A court may order for execution of decree on the application of decree on the application
of decree holder (a) by delivery of any property which was in possession of judgement-
debtor and decree has been specifically passed concerning such property (b) by
attachment and sell of the property of the judgement-debtor (c) by arrest and detention
(civil imprisonment) (d) by appointing a receiver (e) in such other manner which depends
upon nature of relief granted by the court.
 Upon the application of decree-holder, the court may issue “percept” to any other court
which is competent in that regard.
 All questions arising between the parties to the suit in the decree shall be determined by
the court while executing the decree and not by separate suit.
 Where a decree is passed against a party as the “legal representative” of a deceased
person and decree is for payment of money out of the property of deceased person, it may
be executed by attachment and sell of any such property.
 A judgement-debtor may be arrested at any time and on any date shall required to be
brought before the court which has passed the decree and his detention may be in civil
prison of the district where decree shall have to be executed.

5
Takwani.,C.K., “Civil Procedure with Limitation Act,1963.”7th Edition.Eatern Book Compny.Pg. 643

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  Where immovable property has been sold by the court in execution of a decree such sell
shall be absolute. The property shall be deemed to be invested in the favour of purchaser,
and the purchaser shall be deemed as a party to litigation.6
 The court to which decree is sent for execution shall require certifying to the court which
has passed decree stating the manner in which decree has been implementing concerning
the fact of such execution.7

Mode for Execution – Analysis of Relevant Provisions & Judicial Approach

Section 51 to 54 talks about procedure in execution or mode for execution.

Section 51: Power of Court to enforce execution: This section gives the power to court to enforce
the decree in general.8 This section defines the jurisdiction and power of the court to enforce
execution. Application for execution of decree under this section may be either oral (order 21
rule 10) or written (order 21, rule 11). Party has to choose the mode of implementation of decree.
Court may execute decree as per the choice prayed by the decree-holder or as court may thinks
fit.

6
http://www.legalserviceindia.com/article/l419-.concept_of _execution_html as accessed last on
21/10/2015.
7
Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7th Edition.Eatern Book Compny.Pg. 643.
8
Satish Chandra v. Sudhir Krishna Ghosh, AIR 1942 Cal 429(434)

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Modes of executing decree under section 51 are as follows:

(a). By delivery of any property specifically decreed. Property may be movable or immovable –
A decree for specific movable property cab be executed by (i) seizure and delivery of property to
the decree-holder, or (ii) detention of judgment-debtor, or (iii) attachment of property, or (iv)
both detention and attachment ( R.31).

If the immovable property is in the possession of judgment-debtor, actual (or khas) possession
must be delivered to the decree-holder under R.35. Where it is in the possession of a tenant or
other person entitled to occupy the same (joint possession), only symbolical or formal possession
can be delivered under R.36; this is done by affixing a copy of warrant and proclaiming to the
occupant of property by beat of drum, etc. the substance of the decree regarding the property.

(b). By attachment and sale of the property or by sale without attachment of the property. Under
clause (b) of section 51 it is within the power of court to attach the property if it is situated within
its jurisdiction.9

As held by Calcutta High Court in Amulya Chandra Roy v. Kumar Pasupati Nath Malia,10 the
words “attachment and sale” in the clause are to be read disjunctively. And, therefore, a court has
jurisdiction to sell the property even without attachment of that property. Attachment of the
property is neither necessary nor an essential step in the process of the realisation of the decretal
amount by sale of the property.

(c). By arrest and detention: Court can execute decree by mode of arrest and detention. No
execution of decree by arrest or detention of judgement-debtor can be carried unless reasonable
opportunity is given in the form of show cause notice as why he should not be imprisoned. A
decree for the payment of money (R.30)/ specific movable property (R.31) can be executed by
the detention in civil prison of the judgment-debtor.

The proviso to Sec. 51 lays down that where the decree is for the payment of money, detention
should not be ordered unless after giving the judgment debtor an opportunity of showing cause,
the court is satisfied that there is not a mere omission to pay but an attitude of refusal on demand
verging on dishonest disowning of the obligation under the decree. The simple default to
9
Raoof v. Laxmipathi, AIR 1969 Mad 268.
10
AIR 1951 Cal 48 (FB)

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discharge is not enough. There must be some element of bad faith beyond mere indifference to
pay (Jolly Verghese v. Bank of Cochin11 ). The proviso is also applicable where the judgment-
debtor is likely to abscond.

The court must record reasons for the committal of the judgment-debtor to civil prison. Further, a
decree for money cannot be executed by arrest or detention where the judgment-debtor is a
woman, or a minor, or a legal representative (Sec. 50, 52, 56). Sec. 58 lays down that no order
of detention can be passed where the total amount of decree does not exceed Rs. 2000; for a sum
of Rs. 2000-5000, detention period will be up to 6 weeks, and for a sum exceeding Rs. 5000,
detention could be up to 3 months (as amended by the 1999 Amendment).

(d). By appointing a receiver: It can be executed by appointing a receiver. Execution by

appointment of a receiver is known as equitable execution and is entirely within the court’s
discretion. It cannot be claimed as of right. It is an exceptional remedy and a very strong case
must be made out in support of it. A decree-holder cannot be permitted to pray for the
appointment of receiver in respect of property, which cannot be attached. Within the purview of
this section it is permissible to appoint decree-holder himself as the receiver of the judgement-
debtors land.12

(e). By any other mode – By this it is meant such other manner of execution as the nature of
relief granted may require. Clause (e) is the residuary clause and comes into play only when the
decree cannot be executed in any of the modes prescribed under clause (a) to (d). 13 In the absence
of specific provision as to the mode of attachment the court has ample jurisdiction to evolve a
prohibitory order suitable to the cause of action.

In conclusion it is submitted that all that the section does is to enumerate in general terms the
various modes in which the court may in its discretion order the execution of the decree
according to the nature of the relief granted may require.14

Section 52: Enforcement of decree against Legal representative: Section 52 deals with a case
where the decree is passed against the legal representative of the judgement-debtor.

11
AIR 1980 SC 470
12
Datar Kaur v. Ram Raltam, ILR 1 Lah 192 (FB)
13
Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7th Edition.Eatern Book Compny.Pg. 631.
14
Anandi Lal v. Ram Swarup, AIR 1936 All 495

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Section 52 (1) empowers a creditor to execute his decree against the property of deceased in the
hands of legal representative so long as it remains in his hand. For application of this clause the
decree should have passed against the party as the legal representative of the deceased person,
and it should be for the payment of money out of the property of the deceased. These two
conditions need to be satisfied.15

Section 52 (2) empowers a creditor to execute his decree against the legal representative
personally if he fails to accounts for the properties received by him from deceased person. In
conclusion we can say that in order to attract the provisions of Section 52(2) following
conditions have to be complied with :16 (i) the legal representative must have received the
property of the deceased ; (ii) he must no longer be in possession of it; (iii) the court is satisfied
that he has failed to duly apply the property which he has inherited to discharge the deceased’s
debt.

Exception to section 52: Court can implement the decree against the personal property of the
legal representative provided if he is avoiding, neglecting or evading to make the payment from
the property of deceased.

Section 53: Liability of ancestral property: No legal representative should be held personally
accountable where the suit has been filed against a joint Hindu family unless he has received
some property of joint Hindu family.

Under pious obligation if has received the property of joint Hindu family then he will be held
liable. Where the decree has been passed against Karta, no execution can be made against the son
under pious obligation if the decree is passed after partition. Even after partition a son can be
held liable if suit was pending before partition.

This section does not apply where the ancestor against whom decree has been passed is still
alive.17 In other words, when the ancestor against whom the decree has been passed is still alive
there is no question of enforcement of the decree against his legal representative or against
ancestral property in the hands of such legal representatives.18

15
Mistry Lalji Kunverji v. Bhatia Jivandas, AIR 1974 Guj 42(44)
16
Subryanarayna v. Rajyalakshmi Devi Amm, (1950) 1 MLJ 357
17
Bijai Raj Singh v. Ram Padarath, AIR 1936 Oudh 139(140)
18
Bijai Raj Singh v. Ram Padarath, AIR 1936 Oudh 139(140)

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The son will be held accountable if after the death of Karta, the decree has been executed and
son has distributed the property of Karta among themselves. The member of joint Hindu family
will be held liable if Karta has taken debt for moral purpose or family purpose. The nature of
suits determines how decree should be implemented.

So, Sec. 53 makes the son or other descendant of a Hindu, his legal representative in respect of
the joint family/ancestral property in his hands which is liable, under Hindu law, for the
satisfaction of the debts of the deceased ancestor. Hence this section give effect to the recognised
rule of Hindu law that the members of a joint family are liable for the payment out of the joint
family property, of any debt incurred by their father and decreed against him before his death.

In Malakchand v, Hira Lal, it was held by Oudh High Court that the expression “property in the
hands of a son” in this section does not necessarily signify tangible property exclusively
possessed by the son without any co-sharer or coparceners, it means and includes the undivided
share of the son in the joint family property held by himself and the other coparceners who may
be in existence.

Illustration: a promissory note has been executed by the father for the purpose of borrowing
money. After the death of father the creditor instituted proceeding against son. Where suit is filed
basing on promissory note first it will be seen that whether suit is maintainable or not- if it is
filed within three year then the suit will be maintainable. General rule is that son will be held
liable if they have received ancestral property. Where the son is not having knowledge about
execution of promissory note, in such case he will not be held liable even though has received
the ancestral property.19

Section 54: Partition of estate or separation of share: 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, it should be made by the Collector.

Section 54 comes into play when a decree has been passed for partition, or for the separate
possession of a share of an undivided estate paying revenue to the government, that is the
partition of the estate or separation of share shall be made by the Collector. 20 However if the

19
Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7th Edition.Eatern Book Compny.Pg. 645.
20
Govind Singh v. Kallu (1884)

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Collector refuses to make the partition of the revenue paying property, the Civil Court can do
so.21 To attract the provision of this section it is not necessary that the plaintiff should ask for the
division of government revenue.22

Section 54 deals with a case where though the civil court has the power to pass a decree yet it is
not competent to execute the same. Under this section the execution of decree shall be made by
collector. Civil courts do not have power in this respect. 23 Under this section when partition has
been made by the collector, the Court cannot sit in the judgment over such partition, nor the
Collector can entertain the objection overruled by the Civil Court.24

Acting under Section 54 a Collector in proper cases may make an equitable partition of estate
and by doing so he neither violates the decree nor commits transgression of any law. It was held
so by the Supreme Court of India in Khem Chand v. Vishna Hari.25

The word “partition” used in section 54 means that partition is not only confined to mere division
of the lands concerned into the requisite parts but also includes the delivery of shares to the
respective allottees. In other words, “partition” means actual division or partition by metes and
bounds and handing over possession of the shares to the parties.26 After the court declares the
shares of the parties it becomes functus officio and beyond that it is not concerned with the
property. In fact the suit terminated as far as Civil Court is concerned on the passing of the
preliminary decree affecting any estate assessed to the payment of revenue to the Government.27

Process of Execution – Relevant Provisions & Judicial Approach

Order 21 rule 24 and 25 talks about process of execution.

21
Sewakram v. Chunnilal, AIR 1951 Nag 359.
22
Dattatraya v. Mahadaji, ILR Bom 528.
23
Keshao v. Waman, AIR 1971 Bom 71.
24
Ramchandra v. Ram Krishna, AIR 1968 Mys 11
25
AIR 1963 SC 124.
26
Rama Gouda v. Smt. Lagmavva, AIR 1985 Kant 82.
27
Shrinivas v. Gurunath, ILR 15 Bom 527.

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RULE 24: Process of execution: (1) When the preliminary measures (if any) required by the
foregoing rules have been taken, the court shall, unless it sees cause to the contrary, issue its
process for the execution of the decree.

(2) Every such process shall bear date the day on which it is issued, and shall be signed by the
Judge or such officer as the court may appoint in this behalf, and shall be sealed with the seal of
the court and delivered to the proper officer to be executed.

(3) In every such process, a day shall be specified on or before which it shall be executed and a
day shall also be specified on or before which it shall be returned to the court, but no process
shall be deemed to be void if no day for its return is specified therein.

Analysis – Where the preliminary steps as contemplated by foregoing rules have been taken, the
court shall issue a process for the execution of the decree, unless of course, it sees cause to the
contrary. Every such process shall bear the date, the day on which it is issued and shall be signed
by the judge. Sub-rule (3) of Rule 24 was substituted in order to provide that in every process a
date shall be specified on or before which it shall be returned to the court. But no process shall be
deemed to be void if a day for its return is not specified therein. According to 24(3) execution
must be completed by the date specified on the process for the purpose- Warrants for delivery of
possession, therefore, ceases to be executable after expiry of the date appearing on the warrant.

Rule 24 prescribes the procedure in case of execution of decree. In these matters 28 the court
exercises judicial discretion, which cannot be interfered with by the district judge by issuing
administrative order. The court has inherent power to defer issue of process as envisaged under
rule 24 and can give time to judgement-debtor in appropriate cases.

After the process of execution is issued, rule 17 of order 21 cannot be invoked for amendment of
execution application. If the amendment seeks to change the nature of execution, the power
under section 151 and 153, also cannot be invoked.

The Supreme Court of India in Smt. Mathri v. State of Punjab,29 held that if the date is specified
the process should be executed on or before that date, its execution later is illegal. In case of
execution of decree for possession, police help can only be directed by the executing court.
28
AIR 1962 Manipur 24
29
AIR 1964 SC 986

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Magistrate is not competent to direct police aid in proceedings under Section 107/144 of the
Code of Criminal Procedure.30 Arrest of judgment-debtor by an officer of the court without
having the warrant in his possession at the time of arrest is illegal.31

Execution proceeding on the death of the decree-holder:- Possession certificate under Section
214 of Indian Succession Act 1925, will not be necessary for continuation of proceeding by his
legal Heirs, even if legal Heirs are not brought on record, the execution proceeding will not
abate.

Delivery of possession to the decree-holder without notice to Judgement-debtor is not proper:

Application by judgement-debtor for re-delivery of the possession on the ground that he had no
notice of the execution proceedings, dismissed by the trial court, however allowed by the High
Court in revision, held, re-delivery of possession to the judgement-debtor was not proper,
however, compensation of Rs, 2,000 was awarded to the judgement-debtor.

RULE 25: Endorsement on process: (1) The officer entrusted with the execution of the process
shall endorse thereon the day on, and the manner in which it was executed, and, if the latest day
specified in the process for the return thereof has been exceeded, the reason of the delay or, if it
was not executed, the reason why it was not executed, and shall return the process with such
endorsement to the court.

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the
court shall examine him touching his alleged inability, and may, if it thinks fit, summon and
examine witnesses as to such inability, and shall record the result.

The officer who entrusted with the execution of the process, shall endorse upon the same date
and the manner in which it was executed and also endorsed upon in the reason of delay and in
case the process was not executed, will also state reasons thereof. However a person cannot be
re- arrested on the ground of absence of endorsement.32

30
Usha Ghosh v. Rabindra Nath Das, AIR 1993 Cal 128.
31
Emperor v. Beni Prasad, (1935) ILR 57 All 660
32
http://civillawyersindia.wordpress.com/2013/05/12/section-44a-of-c-p-c-execution-of-decrees-passed-
by-courts-in-reciprocating-territory/ accessed last on 24/10/2015.

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Rule 25 makes it incumbent on the Court to examine the officer entrusted with the execution,
when the process is not duly executed, to satisfy itself as regards the reasons for its non-
execution and to record the result of its inquiry. If the Courts make careful inquiry in such cases
and do not blindly accept the reports on the processes, the percentage of infructuous applications
will appreciably diminish.

CONCLUSION

From the above discussion it clearly appears that execution is the enforcement of decrees and
orders by the process of court, so as to enable the decree-holder to realise the fruits of the decree.
It is the medium by which a decree- holder compels the judgement-debtor to carry out the
mandate of the decree or order as the case may be. The execution is complete when the
judgement-debtor or decree-holder gets money or other thing awarded to him by the judgement,
decree or order.

The Law relating to execution of decrees is to be found in Sections 36 to 74, Sections 82 and 135
and Order XXI of the Code of Civil Procedure. In particular Section 51 to 54 talks about
procedure in execution or mode for execution. After the judgment attains finality or where there
is no stay in the execution by any appellate or revisional Court, it is the Court of original
jurisdiction which performs this sacred act of implementation of the execution.

Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and
order, take care of different type of situation and provide effective remedies not only to the
decree-holder and judgement-debtors but also to the objectors and third parties. In particular
order 21 rule 24 and 25 talks about process of execution.

A decree can be executed by various modes which include delivery of possession, arrest and
detention of the judgement-debtor, attachment of the property, by sale, by appointment of

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receiver, partition, cross-decrees and cross-claims, payment of money etc.
On exceptional situation, where provisions are rendered ineffective or incapable of giving relief
to an aggrieved party, he can file suit in civil court.

Hence with the help of the relevant provisions and the judicial approch toward these provisions
the hypothesis of the researcher that “execution is the medium by which a decree- holder
compels the judgement-debtor to carry out the mandate of the decree or order as the case may
be” is hereby proved.

Bibliography

 Bare Act – The Code of Civil Procedure, 1908

 Civil Procedure with Limitation Act, 1963, C.K. Takwani, 7th Edition, Eastern Book
Company
 The Code of Civil Procedure, 1908, Dr. T. P. Tripathi, 2nd Edition, Allahabad Law
Agency Publications
 Mulla., The Code of Civil Procedure, Vol.1 & 2, 18 Ed., LexisNexis Butterworths
 The Code of Civil Procedure, Prof. M.P.Jain, 3rd Edition, Jain Book Agency
 Halsbury’s Laws of England (4thedn.)Vol. 17
 http://www.legalserviceindia.com/article/l419-.concept_of _execution_html
 http://www.lawzonline.com/bareacts/civil-procedure-code.htm
 http://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-I-
pdf/chap12partEV1.pdf
 http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_e6va2gcv.pdf
 http://www.legalserviceindia.com/article/l419-.concept_of _execution_html
 http://cja.gov.in/data/Executions.pdf

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