Modes of Executing Decrees

Section 51 of Code of Civil Procedure 1908 “Powers of Court to enforce execution”

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by the sale without attachment of any property;

(c) by arrest and detention in prison 1[for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section];

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require :

attachment in execution of the decree.]

2[Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree. the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Explanation. In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from

The Code lays down various modes of execution. After the decree-holder files an application for execution of a decree, the executing court can enforce execution. The substantive provision (Section 51) “merely enumerates different modes of execution in general terms, while the conditions and limitations under which alone the respective modes can be availed of are prescribed further by different provisions.” (Order XXI). (See: Mahadeo Prasad v. Ram Lochan, AIR 1981 SC

Delivery of Property: Section 51(a)

Movable Property: Section 51(a), Rule 31 Where the decree is for any specific movable property, it may be executed

(I) by seizure and delivery of property; or

(ii) by detention of the judgmentdebtor; or

(iii) by attachment and sale of his property; or

(iv) by attachment and detention both. It does not include money, and, therefore, a decree of money cannot be executed under Rule 31. •

Immovable Property: Rules 35 and 36 Rules 35 and 36 correspond to Rules 95 and 96 which lay down the procedure for delivery of possession to the auction-purchaser who has purchased the property in an auction-sale. Where the decree is for immovable property in the possession of the judgment-debtor or in the possession of the person bound by the decree, it can be executed by removing such person and by delivering possession to the decree-holder thereof.

Attachment and Sale of Property: Section 51(b)

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 the court.

Arrest and Detention: Section 51(c)

One of the modes of executing the decree is arrest and detention in civil prison of the judgment-debtor. However, clause (c) should be read subject to the proviso to Section 51.

The proviso lays down that where the decree is for payment of money, execution by detention in civil prison should not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be so detained, the court for reasons to be recorded in writing is satisfied: • that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any pare of his property, or committed any other act of bad faith in relation to his property; or • that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or • that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account

Appointment of Receiver: Section 51(d)

Execution by appointment of a receiver is known as equitable execution and is entirely at the discretion of the court. It cannot be claimed as a matter of right. (See: Onkarlal v. V.S. Rampal, AIR 1961 Raj. 179) • The appointment of a receiver in execution proceedings is considered to be an exceptional remedy and a very strong case must be made out in support of it.

In such other manner as the nature of the relief granted may require

Execution of Decree for:

Payment of Money: Rule 30
1. By detention in civil prison of the judgment-debtor, or
2. By attachment and sale of his property, or
3. By both.
Specific Movable Property: Rule 31
1. By seizure of the movable, and
2. By delivery to the party to whom it has been adjudged, or
3. By detention in civil prison of the judgment-debtor, or
4. By attachment of his property, or e) By both the above modes.

Specific Performance for Restitution of Conjugal Rights or an Injunction: Rule 32
1. By attachment of property (in case of restitution of conjugal rights),
2. By detention in civil prison, or by attachment of property, or by both (in case of injunction).
3. In Kanwar Singh Saini High Court of Delhi, (2012) 4 SCC 307, the Hon’ble Supreme Court held that Order XXI, Rule 32 applies to prohibitory as well as mandatory injunction. Execution of an in junction decree is to be made in terms of said provision since CPC provides particular manner and mode of execution. No there mode, hence, permissible.
Immovable Property: Rule 35
1. By delivery of possession, and
2. By removing any person bound by the decree who refuses to vacate the property.

Partition a) Order XX, Rule 18 provides that where the Court passes a decree for the partition of property or for the separate possession of a share therein, then

1. if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

2. if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the right of the several parties interested in the property and giving such further directions as may be required.