CODE OF CIVIL PROCEDURE:

PROJECT 2018

EXECUTION OF A DECREE

IN PARTIAL FULFILLMENT OF THE BA.LLB.

(FIVE YEAR COURSE)

AHAT SHARMA

1407

FIFTH YEAR, DIVISION A

0
 TABLE OF CONTENTS

1. Overview………………………………………………..02

2. Introduction: Concept of Execution……………..………03

3. Procedure in Execution – Relevant Provisions and Judicial

Approach…………………………………………………07

4. Process of Execution – Relevant Provisions and Judicial

Approach……………………………………………...….13

5. Conclusion and Suggestion…………………………....…16

5. Bibliography......................................................................17

1
 Overview
AIM & OBJECT OF STUDY:
The aim and object of the study are the following:
1. To know about the importance of execution of decrees in civil suits.
2. To outline the principles governing execution of decrees and orders.
3. To present a broad analysis of the relevant provisions with regard to procedure in
execution specifically.

HYPOTHESIS:
The hypothesis of the researcher is 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. It enables the decree-holder to recover the fruits of the judgement.

RESEARCH METHODOLOGY:
In this project doctrinal method of research will be used. Doctrinal method refers to
library research, research done upon some texts, writings and documents. It also includes
the research done upon the internet and the journals relating to the subject.

2
 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
1
Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7th Edition.Eatern Book Compny. Pg. 616.

3
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, 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 Sinha 4 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

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

4
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 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.

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

5
  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.
 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

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.

6
 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 think fit.

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

8
Satish Chandra v. Sudhir Krishna Ghosh, AIR 1942 Cal 429(434)
9
Raoof v. Laxmipathi, AIR 1969 Mad 268.

7
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 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
10
AIR 1951 Cal 48 (FB)
11
AIR 1980 SC 470

8
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.

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)

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
15
Mistry Lalji Kunverji v. Bhatia Jivandas, AIR 1974 Guj 42(44)

9
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

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

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)

10
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 Collector refuses to make the partition of the revenue paying property, the

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

11
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

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.

12
 Process of Execution – Relevant Provisions & Judicial
Approach
Order 21 rule 24 and 25 talks about process of execution.

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

28
AIR 1962 Manipur 24

13
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. 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.

29
AIR 1964 SC 986
30
Usha Ghosh v. Rabindra Nath Das, AIR 1993 Cal 128.
31
Emperor v. Beni Prasad, (1935) ILR 57 All 660

14
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

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
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.

15
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 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
16
 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/vo
l-I-pdf/chap12partEV1.pdf
 http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_e6va2gc
v.pdf
 http://www.legalserviceindia.com/article/l419-.concept_of _execution_html
 http://cja.gov.in/data/Executions.pdf

17