Who is a judgement debtor?

Decree holder
What is an execution petition: It simply means the process for enforcing the decree that
is passed in favour of the decree-holder by a competent court. As per Rule 2 (e) of
Civil Rules of Practice “Execution Petition” means a petition to the Court for
the execution of any decree or order.

Execution petition is filed by decree holder seeking execution of judgement and decree

Permanent injunction restraining judgement debtors from interfering with the peaceful
possession and enjoyment of the suit scheduled prop by the decree holder and to demolish the
illegal compound put up over the suit schedule prop and also to remove the debris and mud
stored therein
Decree holder has stated that he had purchased the aforesaid prop under deed of sale in April
from Srinivas and has been in peaceful possession of the said prop.
Judgement debtors attempted to enter and after approached the electronic city police had filed
the suit. Judgement debtor 1 entered appearance and did not contest debtor 2 failed to appear
in court.
JD 2 has not been served with any notice and no opportunity to appear before in the said suit.
No summons to judgement debtor 2
Judgement debtor 2 submits he has nothing to do with the prop being claimed by the decree
holder. JD 2 had never attempted to interfere with the alleged possession og decree holder
over the property subject matter of the execution petition.
MD developers purchased a few properties and thid property was compiled into 34 guntas
and katha registered in the name of the Co.
Copy of special notice issued under section 147 of the Karnataka municipal corp act for
amalgamation of prop.
N D developers into joint development agreement with suvastu estate which has developed
the 34 guntas into multistory apartment. In copy of sanction plan with license by BBMP.
Thus the property claimed by the decree holder herein with the number of similar to that of
the prop belonging to N D developers is non existing. The present execution petition has been
filed by the decree holder seeking to enforce decree of permanent injunction restraining the
judgement debtors from allegedly interfering with the purpoted possession of the execution
schedule prop but the decree holder and also seeking demolition od alleged compound wall
and remove debris. ]
After filing the execution pet and petition has approached acp elec city and sub div blore city
seeking to complaint against judgement debtor . notice to judgement debtor sent. JD replies
he appeared before acp and claimed prop falls within boundary of residential complex and
wants survey to identify prop.
It is clear that decree holder has changed version that apartment has been constructed over his
prop.
It is implied that decree holder is not in possession of the said prop in exec petition and
cannot seek to enforce an illusory decree againat JD 2 in respect of non existent prop
JD claims he has nothing to do with the prop much less with the exec pet sched prop.
Even if decree holder indicates even if decree holder seekinf to execute decree, DH has to
establish existence, identification, and execution schedule prop and est alleged interference
Prayer contrary to allegations made. DH cannot go against decree seeking removal of apt
constructed on prop owned by nd developers who is lawful owner
Cannot convert execution proceeding into proceeding for recovery of immovable prop.
Material facts as to existence of possession, enjoyment of which the execution petition has
been sought
Prayer to reject execution petition against judgement debtor 2.

But DH claims that he has purchased property under sale deed.

Decree holder is not in possession of the said prop in execution petition and cannot seek to
enforce an illusory decree: Prabhakara Adiga vs Gowri And Ors on 20
February, 2017

Section 37 of the Code of Civil Procedure define the Courts by which a decree may be
executed

The procedure in detail about execution of the decree is provided under

Order 21 of the Code

Order 21 Rule 32 is regarding execution of decree for specific

performance, for restitution of conjugal rights or for an injunction

Modes of Execution of Decree:

The different modes of execution of a decree are provided in section 51 as

under:

(a) by delivery of any property specifically decreed ; (b) by attachment and

sale or by sale without (c) by arrest and detention in prison ; attachment
of any property ; (d) by appointing a receiver ; or (e) in such other
manner as the nature of the relief granted may require.

The decree in a suit for specific performance creates mutual rights and
obligations. Sub rule 1 applies to both prohibitory and mandatory injunctions.

Rule 32 also provides that a Decree for Injunction can be enforced by

attachment of the porpoerty of the judgment debtor or by detention in civil
prison. The provisions of section (51) C.P.C, enumerates in general terms the
various modes, in which the court may in its discretion order the execution of a
decree according as the nature of the relief granted may require.
Section 47 provides for determination by the executing court of all
questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or
satisfaction of the decree. This doesn’t apply to us as the decree was passed
in an ex parte suit.

It is held in the matter of Savitribai Vs. Suman reported in 2009 (5) Mh.L.J.
387 that Jurisdiction under section 47 is limited and narrow. Right to raise the
objection doesn't mean that, objector can reopen the matter. That is not intended
by the legislature. Jurisdiction being extremely limited and narrow, the
objection must fall within the ambit and scope of the same. This jurisdiction
can't be equated with that of an appeal or review. Executing Court has to go by
the decree.

In Patankar VsSastri AIR 1961 SC 272 it is held by the Hon’ble Apex Court
that where in execution of a decree in ejectment, the decree holder obtained
possession and satisfaction of the decree was recorded and thereafter the
judgment debtor applied for redelivery on the ground that the order for delivery
was illegal, it was held that whether the decree was completely satisfied and the
Court became functious officio was a question which related to execution,
satisfaction and discharge of decree and should be tried under Section 47. Also
see Hanifa v. Shalima Dhanu, AIR 1992 Mad. 111 & Gangabai Gopaldas
Mohata Vs Ful Chand AIR 1997 SC 1812.

When a decreeholder takes in execution a property not included in the

decree, the judgmentdebtor has to proceed by an application under section
47 of the Code for recovery of such property and a separate suit for that
purpose will not lie. The question as to the validity of the decree is not one
relating to the execution, discharge or satisfaction of the decree and cannot,
therefore, be tried in execution proceedings under section 47 and is requiredto
be tried by way of a separate suit. The execution court has got duty to resolve
the dispute whereby somebody claims to be representative of decreeholder’s
interest and decreeholder disputes it. It is also settled that what has been decided
and also questions which ought to have been raised and have been not been
raised would also be questions which cannot be gone into by the executing
court.

Exceptions—Nullity or unexcutable decree: when a decree has been passed

by a court not having jurisdiction or a decree in favour of a dead person

The Hon’ble Apex Court in Kiran Singh Vs Chaman Paswan, 1995 (1) SCR
117 held that though a Court executing a decree cannot go into the question
of correctness or legality of a decree, it entertains the objection that it is a
nullity on the ground that the Court which passed it had no jurisdiction to
pass it

It is beyond an executing court's province to question legality or

correctness of a decree.. [2005 (9) SCC 1 2 3]. It cannot allow objections
that the decree was obtained by fraud or passed against a wrong person or
against a minor, who was not properly represented.

The powers of the executing court were fully discussed in Kalipada Sarkar v.
Hari Mohan Dalai (1931) I.L.R 9 Rang. 480. It was observed that the court
executing a decree must take the decree as it stands, and has no power to go
behind the decree or to entertain an objection to the legality or correctness of the
decree. Objections under section 47, C.P.C. are applications and are governed
by Article 173 of the Limitation Act.

The Rule 97 to 101 deals with provisions relating to the resistance to delivery of
possession to Decreeholder or purchaser. Rules 97, 98 and 101 are to be read
together.

XXI of CPC is an independent Code in itself and it not only provide procedure
to be followed by the decree holder to get the fruits of the decree, at the same
time it provides an opportunity to the judgment¬debtor or the third party/
objection petitioner to raise the grievances or objection in the execution
proceeding itself.

Therefore, objections if any, are raised by the judgment¬debtor or the third

partly in execution proceedings, the same are required to be adjudicated by
executing court following the same procedure as if it was a suit and the orders
by the executing court having the force of a decree.
Section 37 of the Code of Civil Procedure define the Courts by which a decree may be
executed. A decree may be executed by, the Court to which passed it, or by any Court to
which it is transferred for execution. It should be noted that the expression „Court which
passed decree‟ has been defined in Section 37 so as to include certain Courts other than Court
which actually passed the decree.

Execution of a decree for delivery of property—When it is sought to enforce a decree in

Class (a) by attachment of the judgment-debtor‟s property, it should be noted that the period
of six months prescribed by Rule 31, sub-rule (2) of Order XXI, Civil Procedure Code, for
the sale of the property has been reduced to three months by the Punjab High Court
1
Execution of a decree for delivery of property. When it is sought to enforce a decree in class
(a) by attachment of the judgment-debtor‟s property and such an attachment has remained in
force (for three months), the property, on application by the decree-holder may be sold,
provided the judgment debtor has not obeyed the decree, otherwise the attachment should be
ceased.

The period of six months mentioned in Order XXI, Rule 32(3) Civil Procedure Code, has also
been reduced to three months.

Power of executing Court to decide question arising in execution—Section 47 of the Code of

Civil Procedure confer wide powers on the executing Court to decide all question arising
between the parties to the suit in which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree. Such questions must be
decided by the executing Court and no separate suit it maintainable for the purpose. A
purchaser at a sale in execution of the decree would also be a party to the suit in view of the
amendment made in the explanation to this Section by Act No. 66 of 1956.

Copy of certificate of sale of immovable property to be sent to Registration office—A copy

of the certificate, whether the property sold be land or other immoveable property, and
without regard to the amount of the purchase-money, shall be sent to the Registering Officer,
within the local limits of whose jurisdiction the whole or any part of the property is situated
to be filed in his supplementary Book No. I.

Resistance by judgment-debtor or by some person on his behalf or at his instigation—If the

holder of a decree for the possession of immoveable property, or the purchaser of any such
property sold in execution of a decree is resisted or obstructed by any person, and the decree-
holder complains of such resistance or obstructions, Order XXI, Rules 97 to 99, prescribed
the procedure to be followed.

According to Order XXI, Rules 98, Civil Procedure Code, as amended by the Punjab High
Court, a Court can take action not only when the obstruction was occasioned by the
judgment- debtor himself or by some person at his instigation but also when it was caused by
any one “on his behalf.” It has also been provided that the detention ordered in this rule shall
be at public expense. The provision as to the limitation is contained in Article 129 of the
Limitation Act, 1963 which provides a period of thirty days from the date resistance or
obstruction.