Execution

Sections 36 to 74, Sections 144, 146 & 148 Code of Civil Procedure and Order 21

The word “Execution” is not defined in the Code of Civil Procedure. It simply means the process for enforcing the decree that is passed in favour of the decree-holder by a competent court. In other words, execution is the enforcement of decrees and orders by the process of the Court, so as to enable the decreeholder to realise the fruits of the decree. The execution is complete when the judgmentcreditor or decree-holder gets money or other thing awarded to him by the judgment, decree or order. (See: Overseas Aviation Engg. (G.B.) Ltd. In re, (1962) 3 WLR 594)

Hon’ble Apex Court in Ghanshyam Das v. Anant Kumar Sinha (AIR 1991 SC 2251) dealing with provision of the code relating to execution of decree and orders, observed in following words –

“ 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 judgment debtors and decree-holders but also to claimant objectors, as the case may be.”

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. Decree means operation or conclusiveness of judgment. A decree will be executed by the court which has passed the judgment. In exceptional circumstances, the judgment will be implemented by other court which is having competency in that regard. Execution enables the decree-holder to recover the fruits of the judgment.

Scheme of Execution: Important Heads

Courts which may Execute Decrees
Application for Execution
Stay of Execution
Mode of Execution
Arrest and Detention
Attachment of Property
Questions to be determined by Executing Court
Adjudication of Claims
Sale of Property
Delivery of Possession
Distribution of Assets
General Rules (Civil and Criminal), 2018: Provisions relating to Execution of Decrees and Orders
Conclusion

Section 36 of Code of Civil Procedure 1908 “Application to orders”

The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).

The main rules of procedure are enacted in this Part of the Code and minor rules are relegated to Order – XXI

The Decree to be executed is the decree of the court of first instance until appeal and after that the decree of the court of last resort.

When the appeallate court makes a decree , the decree of the original court is merged in that of the superior court and it is latter decree alone that can be executed.

Application for Execution of decree :-

All proceedings in Execution commence with the filing of an application for Execution. Following persons may file an application for Execution:

Decree- holder
Legal representative of the decree holder
Representative of a person claiming under the decree-holder
Transferee of the decree-holder, in some cases.

Section 37 of Code of Civil Procedure 1908 “Definition of Court which passed a decree”

The expression “Court which passed a decree,” or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

1[Explanation.- The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.

The section enlarges the scope of the expression “court which passed a decree” with the object of giving greater facilities to a decree-holder to realize the fruits of the decree passed in his favour. The following courts fall within the said expression:

The court of first instance which actually passed the decree;

The court of first instance in case of appellate decrees;

Where the court of first instance has ceases to exist, the court which would have jurisdiction to try the suit at the time of execution; and

Where the court of first instance has ceased to have jurisdiction to execute the decree, the court which at the time of execution would have had jurisdiction to try the suit. (See: Ramankutty Guptan v. Avara, (1994) 2 SCC 642)

A court does not cease to have jurisdiction to execute its decree because it is abolished and re-established, or merely because its business is transferred by the district judge under the Act constituting it, to another court or because the area in which the judgment debtor resides is transferred to a different court , if after a court has passed a decree , the local area in which the property is situated is transferred to a different court, the decree holder can apply for execution without an order of transfer by the court which had , in fact passed the decree.

The court to which the subject matter is transferred , acquires an inherent jurisdiction to execute the same.

The court passing the decree cannot attach property outside its local Jurisdiction

Section 38 of Code of Civil Procedure 1908 “Court by which decree may be executed”

A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution.

Summary Of Section -36,37, 38

Section 38 of the Code specifies that, a decree may be executed either by the Court who passed it or by the Court to which it is sent for execution. Section 37 defines the expression ‘Court which passed a decree’ while sections 39 to 45 provide for the transfer for execution of a decree by the Court which passed the decree to another Court, lay down conditions for such transfer and also deal with powers of executing Court.

U/s. 37 the expression Court which passed the decree is explained. Primarily the Court which passed the decree or order is the executing Court. If order or decree is appealed against and the appellate Court passes a decree or order, even then the original Court which passed the decree or order continues to be treated as Court which passed decree. The Court which has passed the decree or order ceased to exist or ceased to have jurisdiction to execute the decree already passed, then the Court which will be having a jurisdiction upon that subject matter, when application of execution is made will be the competent Court to execute the decree.

Merely because the jurisdiction of the Court which has passed the decree is transfer to another Court due to transfer of territorial area, the jurisdiction to execute the decree passed by such a Court is not ceased. However, the Court to whom the transfer of territorial area is made, will also have a jurisdiction to conduct the execution of decree or order. (Sec.37). Sec. 38 contemplates that a decree may be executed either by the Court which passed it, or by the Court which it is sent for execution. However the execution on judgment debtor is criteria of executing Court of territorial jurisdiction.

Power Of Executing Court

A court executing a decree cannot go behind the decree. The court must take the decree as it finds it. VD Modi v. RA Rehman AIR 1970 SC

However , if the court which passed the decree has no inherent jurisdiction the decree is incapable of execution . Dealing with this question , the supreme court observed in Kiran Singh v. Chaman Paswan that a decree passed by a court without jurisdiction is a nullity and that is invalidity could be set up wherever and whenever it is sought to be enforced whether in execution or collateral proceedings.

But where the defect in jurisdiction was of a kind that within the saving of Section -21 of the code or section 11 of the suit valuation act , it could not be raised except in the manner and subject to the conditions mentioned therein.