JAMIA MILLIA ISLAMIA

NEW DELHI

FACULTY OF LAW

Code of Civil Procedure - II

THE FUNCTION OF THE EXECUTING COURT

TO CARRY INTO EFFECT THE DECREE OF
THE TRIAL COURT

Submitted by: - Submitted TO: -

Priyam (48)(s/f) Prof. rajesh Sharda

Semester- VIII (CPC)

 Table of Content

Acknowledgment.................................................................................... 3
INTRODUCTION ........................................................................................ 4
Functions Of The Executing Court : Cannot Go Behind
The Decree ................................................................................................. 5
Exceptions To The General Rule : Executing Court
Cannot Go Behind The Decree....................................................... 10
1. In Cases of Ambiguity ............................................................................ 10
2. Lack Of Jurisdiction : Where The Decree Amounts To A Nullity ....... 12
3.Change Of The Law ................................................................................. 13
Modes Of Execution ............................................................................ 14
Different Modes of Executing Decrees................................... 16
1. Delivery of Property ............................................................................... 16
Attachment and sale of the property ......................................................... 17
Arrest and Detention .................................................................................. 17
Appointment of receiver ............................................................................. 18
Conclusion ............................................................................................... 19

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 Acknowledgment

I express my gratitude and deep regards to my teacher for the subject Prof. Rajesh
Sharda Sir, for giving me such a challenging topic and also for his exemplary guidance,
monitoring and constant encouragement throughout the course of this thesis. I also
thank all of my friends and seniors who aided me along the way.

Lastly, I thank almighty, my family and friends for their constant encouragement
without which this assignment would not have been possible.

I know that despite my best efforts some discrepancies might have crept in which I
believe my humble Professor would forgive.

Thanking You.

Priyam.

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 INTRODUCTION

“The function of the executing court is to carry into effect the decree of the trial court.”
Indeed` this statement is true. Though the term execution has not been defined anywhere
in the Civil Procedure Code but in the widest sense the expression execution signifies
the enforcement or giving into the judgement or order of court of justice. In other words,
execution is the enforcement of decrees and orders by the process of the court, so as
enable the decree-holder to realise the fruits of the decree.
Therefore, the function of the executing court is primarily to carry into effect the decree
of the trial court or the court which granted the decree in the first place. An executing
court can enforce execution on application by the decree-holder as in today’s world the
decree holder’s problems only start on obtaining of a decree as to many obstacles are
placed in his way to realise the fruits of his decree. Therefore, the function of the
executing court is to ensure that the decree-holder is able to realise the fruits of his
decree and able to get his decree to enforced by the court of law.

But "it is a well-established principle of law that an executing court cannot go behind
the trial court’s decree. It must take the decree as it stands and execute according to its
terms. It has no power to vary or modify the terms." It has no power to question its
legality or correctness. This is based on the principle that a proceeding to enforce a
judgement is collateral to the judgement, and, therefore, no inquiry into its regularity or
correctness can be permitted in such a proceeding.
But there are instances when the Executing Court can go behind the decree. For
instance, in case the decree-holder does not know a particular mode through which he
can get his decree enforced, he may approach the executing court and the executing
court can upon examination of the pleadings, write statement, judgement and decree of
the case, decide on the mode of execution in such a case. Therefore, in these kinds of
instances an executing court can go behind the decree. Also, in cases of ambiguity,
vagueness of the decree, the executing court can examine the original papers of the case.

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 Functions Of The Executing Court : Cannot Go Behind The
Decree

Though the trial court or the court of first instance gives the decree to the decree holder,
yet in order for the decree holder to enjoy the fruits of his decree, he needs to get the
decree enforced in case the judgement debtor does not comply with the orders of the
trial court. This is done through the process of execution where the decree holder seeks
for court assistance to enforce his decree.

Execution "is the enforcement of decrees and orders by the process of the court, so as
to enable the decree-holder to realise the fruits of the decree. It is an established
principle of law that the function of the executing court is to merely give effect to the
decree, judgement or orders of the trial court. Therefore, essentially the function of the
executing court is to carry into effect the decree of the trial court, the way it stands and
without any modifications or changes.1"

The executing court cannot question the validity of a decree or entertain as to the legality
or otherwise of the decree. It has to take the decree as it stands and has to execute it
according to the terms. This is a general principle and an essential principle of the
executing court. The executing court cannot vary the decree, modify it, change the terms
of the decree but has to execute it in the same form that it comes to the execution court.2

Though Section 47 of the Civil Procedure Code, 1908 does give the executing court
certain powers to determine certain questions. But these questions refer to those arising
between the parties to the suit in which the decree was passed, or their representatives,
and relate to the execution, discharge or satisfaction of the decree. These questions can
be answered by the executing court but while answering these questions, the executing
court does not have the power to go behind the decree and challenge its validity, or
change or modify the terms of the decree.

1
D.V Chitaley, THE CODE OF CIVIL PROCEDURE, Volume II ( Lucknow: Eastern Book Company, 1990) at 264.
2
J. M. Shelat, MULLA ON CIVIL PROCEDURE CODE, Vol-1, (N M Tripathi Pvt. Ltd: Bombay, 1989) at 290.

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There is a plethora of case law establishing the principle that the executing court cannot
go behind the decree and an attempt is being made to the study judicial interpretations
of the principle in the following section.

The earliest case in this regard was that of Nilmoni Dora v. Ripumandan Gountia3,
where the facts were that the plaintiffs had obtained a foreclosure decree in respect of
the land mortgaged and the decree-holder had been put into possession of the mortgaged
property. Upon Execution the judgement debtors objected for possession and asked for
re-delivery of the possession on the ground that the decree was granted without
jurisdiction. The executing court accepted this argument and set aside the decree. Upon
appeal the High Court held that the executing court had no jurisdiction as an executing
court to go behind the decree of the court which had granted the foreclosure. The Court
held that in this case an attempt was made to argue that if the decree for foreclosure was
passed without jurisdiction the executing court was entitled to treat it as a nullity. This
contention thoroughly confuses the notion of an order made without jurisdiction and an
order made in illegal exercise of jurisdiction. The executing court is no more entitled to
go behind the decree and say that on the mortgage the Court had no jurisdiction to pass
the decree because the mortgage was invalid than it would have the right to say that the
mortgage was invalid because as a matter of fact it had not been properly executed. The
positions are entirely analogous. Therefore, in the opinion of the High Court the
executing court was erroneous in making such an order and therefore such an order
must be set aside.

In Abdul Alam v. Amirunissa4, the facts were that a decree for maintenance was passed
against the appellant. An execution petition was filed by his wife for arrears in the
payment of the maintenance. The appellant pleaded that as all four children had attained
puberty the guardianship of the mother had ceased and therefore, he was exempted from
paying the arrears in the maintenance. The High Court upheld the views of the
Executing Court which had stated that the executing court is not the proper forum for
going in to the question of substantive Muslim Law, viz, whether the children have

3
AIR 1934 Pat 426
4
AIR 1954 Hyd 219.

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attained majority and whether on attaining majority there is no liability to maintain on
the part of the father. The proper forum for that is the civil court, before which the
question should be out and gone into after proper enquiry. The Executing Court cannot
go behind the decree and must execute it as it finds it.

Further, in the case of Mohd Jabir v. Narain Pd5. the facts of the case were that a final
decree for mesne profits was amended within three years from the date of the decree.
The judgement debtors contended that the execution case was barred because it was
filed beyond three years from the final decree, which had to taken as 5th June 1951,
which was the date of the original decree. The executing court allowed this objection
and held that the terminus a quo for the execution case was the date of the final decree
for mesne profits, namely the date of the order made in the Title Suit and not the date
of the amendment of the decree which was 31st March 1954. The case went to the appeal
court which held that case were that where a final decree for mesne profits was amended
within three years from the date of the decree, an execution filed within three years from
the amended decree would be within the time under Article 182(4) of the Limitation
Act and the executing court would not be justified in dismissing it as barred by
limitation on the ground that the amendment made was not really in the nature of
substantial amendment. Once the decree was amended, the executing court has got to
take the amended decree as it stands and allow the execution of it, provided the
application for execution was within the limitation period.

Again, in the case of Chandan Mall Bapna v. Abdul Gani Meah6, the facts were that
the respondents had obtained an ex parte decree for eviction of the appellant from and
recovery of khas possession of a certain house and also for rent at the rate of Rs 200 per
month, from the appellant. The respondent filed an execution petition wherein the
appellant raised objections as to the validity of the rent as under Section 5(1) of the
Assam Urban Areas Rent Control Act, the rent allowable under the section was the
standard rent of Rs 65 per month, and any rents claimed above the standard rent was
barred under Section 3. Such compliance with the Act was mandatory. The Executing

5
AIR 1960 Pat 126.
6
AIR 1976 Gau 54.

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Court refused to look into this matter as it was not allowed to go behind the decree. On
appeal the High Court reversed the decision of the Executing Court and held that though
it is generally accepted that the executing court cannot go behind the decree but that
does not mean that the executing court has no duty to find out the true effect of the
decree. For construing the decree, it can and in appropriate cases, it ought to, take in to
consideration the pleadings as well as the proceedings leading up to the decree. In this
case clearly the mandatory provision was being violated, therefore, such a decree would
be invalid as regards the rent aspect and should be set aside.

Similarly in the case of State of Punjab v. Krishan Dayal Sharma7, the respondent
(who had since retired from State Police Service) had filed a suit for declaration that he
was entitled to be promoted from the post of Police Inspector to the post of Deputy
Superintendent of Police with effect from 9.9.1964. he further claimed relief for all
consequential benefits, rights and privileges. The suit was decreed in his favour. The
respondent put the decree into execution for the recovery of arrears of salary w.e.f
9.9.1964 till his date of retirement and also claimed compound interest @ 12% per
annum on the amount found due to him. The State of Punjab filed the objection that the
decree did not contain any direction for awarding interest to the decree- holder. The
Executing Court rejected the State’s objection and held that the decree-holder was
entitled to Rs. 30, 383. 35 as interest from the judgement debtor. The State filed appeal
against the order of the Execution Court. The Supreme Court finally held that the
executing court was wrong in going behind the decree in this case and awarding interest,
which was not granted by the decree. In the absence of pleadings and directions in the
judgement or the decree, which was under execution, it was not open to the executing
court to award interest. The Supreme Court held that the Execution Court is bound by
the terms of the decree and cannot add or alter the decree on the notion of fairness or
justice. The right of the decree-holder to obtain relief is determined in accordance with
the terms of the decree. Therefore, in this case the executing court acted in excess of its
jurisdiction and the award of interest should be set aside.

7
AIR 1990 SC 2177

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Again in the case of Mohammad Yasin v. Mohammad 8, Mohd Bashir and Abdul
Ghafoor were the predecessor in interest of respondents No 1 to 13. They were the
owners of the open piece of land in dispute. They executed an agreement to sell in
favour of the petitioners. On the same day by means of another deed they permitted the
petitioners to construct the boundary wall around the said land. It was done by the
plaintiff. Subsequently Mohd. Basir and Abdul Ghafoor refused to execute the sale
deed. This led the petitioners to file the suit for specific performance and the suit was
decreed in their favour. During the execution of the decree, the respondents raised the
plea that the decree was no valid as the sale never took place and no consideration had
passed. They further contended that the decree was a defective one as the land in dispute
was in two parts belonging to two different persons and the sale deed could not be
executed. The execution court refused to look into the matter and stated that the
executing court had no power to go behind the decree. The function of the executing
court is to carry into effect the decree of the trial court and in doing so it cannot go
behind the decree.

Therefore, upon analysing various cases in this regard it is clear that the executing court
cannot go behind the decree and has only to carry into effect the decree of the trial court
without any changes or modifications.

8
AIR 1992 All 55.

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 Exceptions To The General Rule : Executing Court Cannot
Go Behind The Decree

It is a General Rule that the executing court cannot go behind the decree and decide on
the merits of the case. However, there are various exceptions to the rule. There are
chiefly three cases where the executing court can go behind the decree i.e.

1. In Cases of ambiguity

2. In Cases of lack of Jurisdiction of trial court.

3. In Cases of change of the law.

1. In Cases of Ambiguity

An execution court cannot go behind the decree and question its correctness but when
the decree is silent, and gives no indication as to what property should be sold in
execution, it is permissible for the court to look into the judgement in order to find out
whether upon any issue properly raised and determined as between the parties interested
the property brought to sale has been held to belong to the judgement-debtor.9

In "order to find out the meaning of the words employed in the decree the court often
has to ascertain the circumstances under which those words came to be used. That is the
plain duty of the executing court and if that court fails to discharge that duty it has failed
to exercise the jurisdiction vested in it.10 The jurisdiction of the execution court does
not begin and end with merely looking at the decree as it is finally drafted. There may
be other circumstances where the executing court can go behind the decree: for example
(1) the Court can see whether or not the decree is a nullity and not executable, such as
a decree by a court without jurisdiction or a decree against a minor not properly
represented in the suit. such decrees are null and void and are not executable, and the

9
T.L.V.Aiyer, MULLA ON THE CODE OF CIVIL PROCEDURE CODE, VOL-1 (N. M. Tripathi Pvt Ltd: Bombay, 1967)
at 204.
10
Id.

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court cannot execute such decrees." (2) There may be cases in which the decree sought
is barred by subsequent legislation that bars a suit or a decree or its execution, in which
case also the executing court shall refuse to execute the decree. (3) "There may be a
third category of cases in which the decree sought to be executed is not in conformity
with, or in violation of, certain mandatory provisions of law.11"

In the case of Bukkan Singh v. The District Board, Ludhiana12 the facts were that on
imposition of a tax known as the Haisiat tax by the District Board, the plaintiff instituted
a suit restraining the Board from realising that tax. The plaintiff got a decree in his
favour whereby the District Board was not allowed to impose that tax as it was declared
ultra vires. Subsequently, on the passing of the Validating Act 3 of 1927, validating the
imposition of the tax from the assessee, the Board proceeded to realise the tax against
the plaintiff. The plaintiff presented an application for execution of the decree against
the Board. But the executing court held that the tax which the Board were trying to
realise derived its sanction from the Validating Act, 1927. To such a tax the decree had
no application at all and could not therefore be executed as regards the realisation of
such a tax. The high court of Lahore affirmed this decision.

Further, in the case of Topanmal Chotamal v. Kundomal Gangaram, AIR 1960 SC

388 the facts were that in a suit against a firm the plaintiff claimed relief not only against
Defendant No. 1 from as represented by one of the partners but also claimed a personal
decree against Defendants 2 to 6, the other partners. The Trial Court accepted the plea
of the Defendants held that no personal decree could be passed against defendants 2 to
6. However, the court decreed the plaintiff’s suit against Defendant 1 and such property
of the firm as may be found in the hands of Defendants 2 to 6. Therefore, upon execution
the Executing Court sought to enforce the decree against the personal properties of
Defendants 2 to 6 as well. On appeal the court criticized the action of the executing
court and held that the decree passed, at the worst, could be said to be an ambiguous
decree and it was the duty of the executing court to construe the decree and for that
purpose it was entitled to look into the pleadings and the judgement and that it was

11
Supra note .
12
AIR 1933 Lahore 41.

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manifest from the pleadings and the judgement that though a personal decree was sought
against Defendants 2 to 6, the Trial Court expressly refused to give that relief and
confined it to the assets of the firm in the hands of the partners. In such circumstances
the executing court could not go behind the decree and give relief to the plaintiff, which
was expressly denied to him in the suit. A court executing a decree cannot go behind
the decree; it must take the decree as it stands, for the decree is binding and conclusive
between the parties to the suit.

2. Lack Of Jurisdiction : Where The Decree Amounts To A Nullity

It has been held that in such cases where there was clear lack of jurisdiction on part of
the trial court or where there is some error apparent on the face of the record of the
decree passed, the executing court can go behind the decree and strike it down..

In the case of Nanda Gopal v. Baidyanath13 the Court held that an executing court has
no power to execute the decree when the decree is a nullity, for such a decree is no
decree at all Where a court passing a decree had no inherent jurisdiction to pass it, the
decree is a mere nullity and is void, inoperative and incapable of execution. It is true
that the court executing a decree cannot go behind it. It must take the decree as it stands.
it has no power to entertain any objection as to the validity of the decree, or as to the
legality of the character of the decree, but this is only true in case when a court passing
the decree had got the jurisdiction to pass it, but where the court passing the decree was
inherently incompetent to pass the decree and had absolutely no jurisdiction to pass it,
its decree is a nullity, and no question as to the validity of the decree arises in such a
case. Where, therefore, a decree presented for execution is made by a court which
apparently had no jurisdiction, whether pecuniary or territorial, or in respect the
judgement debtor’s person, to make the decree, the executing court is entitled to refuse
to execute it on the ground that it was made without jurisdiction, and that within these
narrow limits, the executing court is authorised to question the validity of a decree. No
doubt, it has no power to go beyond its terms, but it has power to interpret the decree,
although under the guise of interpretation, it cannot make a new decree for the parties.

13
AIR 1957 Pat 87.

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3.Change Of The Law

In the case of Haji Sk.Subhan v. Madhorao,14, the Supreme Court was confronted with
the question of whether the executing Court could refuse the execution of the decree
granted by the Court, but which is un-executable on the grounds of change in the law.
A suit was initiates by the plaintiff for the recovery of amounts due as rent of certain
land, and for the eviction of tenants. An award was granted in favour of the plaintiff.
The Nagpur High Court passed a decree granting possession and compensation to the
landlords. The Madhya Pradesh Abolition of proprietary Rights (Estates, Mahals,
Alienated Lands) Act was enacted by the State Government in 1950, which was
enforced between the stage of argument and the date of judgement in the High Court.
However, the High Court was not informed of the effect of the legislation to the case.
After the appeal was heard before the Court, the respondent filed for an execution
petition in 1951. The appellant paid the amount of compensation, but in 1971 however
filed for an the stay for execution on the grounds that the new legislation caused the
decree holder to forfeit the property rights over the land in question.

The Supreme Court held that the execution of the decree could be denied by the
executing Court, if the decree was rendered un-executable by the change in the law. The
Supreme Court held that since the decree holder had lost rights to the land, the
compensation was no longer payable and the eviction was stayed.

It can be understood in the light of the previous discussion that generally the Court
would not go behind the reasons in the decree to ensure its execution. However, in the
exceptional situations aforementioned, of lack of jurisdiction in the courts passing the
decree, ambiguity of vagueness of the decree, and a change in the existing position of
law with respect to the decree, the executing court may go behind the decree and
ascertain the true intention or effect of the decree to reach a final outcome on whether
it must continue with the execution. In these circumstances, the judge may refer to the

14
Haji Sk.Subhan v. Madhorao, AIR 1962 SC 1230.

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proceedings; pleadings, judgment, etc., however cannot indulge in a discussion with
respect of its validity.

Modes Of Execution

There "are various modes of executing a decree including delivery of property,

attachment and sale of the property, arrest and detention etc. The decree-holder is free
to use any mode of his choice in order to get his decree realised. He is also allowed
simultaneous execution of his decree.

In the case of P.R.K Sugar Works v. Land Reforms Commissioner15, income tax dues
were sought to be realized as arrears of land revenue by selling immovable property of
the company. It was contended by the company that the Collector at the first instance
ought to have sold movables. Negating the contention and upholding the action of the
Collector, the Supreme Court stated; The Code of Civil Procedure imposes no
obligation to recover the dues by sale of movables or by arrest and detention of the
defaulter before immovable property may be attached."

Further "in the case of State Bank of India v. Indexport Registered16, it was held that
the decree does not put any fetter on the right of the decree-holder to execute it against
any party, whether as a money decree or as a mortgage decree. The facts of the case
were that the appellant had filed a suit for money decree against the respondents. The
trial court passed a composite decree comprising of a personal money decree against all
the defendant- judgement debtors and also a mortgage decree only against Defendant
No. 2 entitling the Bank to sell the mortgaged shop in case of non-payment of the
decretal amount within three months from the date of the decree. The appellant filed an
application for execution of the decree and the executing court took the view that since
it was a composite decree and the mortgaged property was also involved, the decree
holder should have proceeded first against the mortgaged shop and since it had not done
so, the execution application does not lie. Negating this contention, the Supreme Court
held that the execution of a money decree is not made dependant on first applying for

15
(1969) 1 SCC 489.
16
(1992) 3 SCC 159.

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execution of the mortgage decree. The choice is left entirely with the decree-holder. The
decree does not postpone the execution. The decree is simultaneous and it is jointly and
severally against all the defendants. It is the right of the decree-holder to proceed with
it the way he likes." There is nothing "in law which provides such a composite decree
to be first executed against only the property. "If the composite decree is a decree which
is both a personal decree as well as a mortgage decree without any limitation on its
execution, the decree-holder cannot be forced to first exhaust the remedy by way of
execution of the mortgage decree alone and told that only if the amount recovered is
insufficient, he can be permitted to take recourse to the execution for a personal decree."

Again in Shyam Singh v. Collector, Hamirpur17, for recovery of certain debts,

simultaneous proceedings for attachment and sale for movable as well as immovable
property were taken and the Supreme Court stated that: “it has been said the difficulties
of the litigant begin when he has obtained a decree. Perhaps because of that there is no
statutory provision against a number of execution proceedings continuing concurrently.
Section 51 of the Code gives an option to the creditor, or enforcing the decree eithe3r
against the person or the property of the debtor; and nowhere it has been laid down that
execution against the person of the debtor shall not be allowed unless and until the
decree-holder has exhausted his remedy against the property”.

17
1993 Supp(1) SCC 693.

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 Different Modes of Executing Decrees

The Law provides for 4 modes of executing a decree i.e.

1) Delivery of Property.

2) Attachment and sale of the property.

3)Arrest and Detention.

4) Appointment of receiver.

1. Delivery of Property

In case of movable property, on the reading of Section 51(a) and Rule 31 of the CPC, it
is clear that where the decree is for any specific movable property, it may be executed
by (1) seizure and delivery of the property; or (2) by detention of the judgement-debtor,
or (3) by the attachment of his property; or (4) by attachment and detention both.

It has been held in the case of Menon v. Menon18, that the words specific movable do
not include money and therefore, a decree for money cannot be executed under Rule
31. Also, for the application of this rule the property must be in possession of the
judgement-debtor.

Whereas in cases of immovable property, Rules 35 and 36 provide the mode of

execution. Rule 35 states that where the property is in the possession of the judgement-
debtor, it can be executed by removing the judgement-debtor or any person bound by
the decree and by delivering possession thereof to the decree holder. "This is known as
Khas possession or actual possession. But if the property is in possession of a tenant or
any other person not bound by the decree, then the delivery of the property should be
made by affixing a copy of the warrant at some conspicuous place on the property and
proclaiming to the occupant by beat of drum or other customary mode at some

18
AIR 1914 Mad 572.

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convenient place, the substance of the decree regarding the property. This is known as
symbolic possession.19"

Attachment and sale of the property

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 its jurisdiction. Rule 54 provides for
the attachment of immovable property and the procedure for proclamation of such
attachment. The object of Rule 54 is to inform the judgement-debtor about the
attachment so that he may not transfer or create an encumbrance over the property
thereafter."

Arrest and Detention

Another mode is asking for the arrest and detention of the judgement-debtor, which is
stated in Section 51(c) but this should be read subject to the proviso to the section which
lays down "that, where the decree is for the payment of money, execution by detention
in prison shall not be ordered unless, after giving the judgement-debtor an opportunity
of showing cause why he should not be committed to prison, the Court, for reasons
recorded in writing, is satisfied-that the judgement-debtor, with the object or effect of
obstructing or delaying the execution of the decree,- is likely to abscond or leave the
local limits of the jurisdiction of the Court, or 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
that the judgement-debtor has, or has since the date of the decree, the means to pay the
amount of the decree or some substantial part thereof and refuses or neglects 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.20"

These provisions are mandatory in nature and must be strictly complied with. Further
the court must record reasons for the committal of the judgement debtor to the civil

19
Supra note 1, at 369.
20
Ibid, at 370.

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prison. It has been held in the case of Jolly George Varghese v. Bank of Cochin21, that
a simple default to discharge is not enough to warrant the arrest of the judgement debtor.
But there must be some element of bad faith beyond mere indifference to pay.

A decree for money cannot be executed by arrest and detention where the judgement-
debtor is a woman22, or a minor23, or a legal representative of a deceased judgement-
debtor24.

Appointment of receiver

Execution by appointment of receiver is provided for under Section 51(d) and is known
as equitable execution as this mode is provided entirely within the discretion of the court
and this mode cannot be claimed for as a matter of right. This mode of execution is
considered to be an exceptional remedy and a very strong case must be made out in
support of it. This mode is an exception to all the other modes as it can only be enforced
with the discretion of the court, unlike other modes where the decree-holder has the
option to choose any mode of execution to get his decree enforced. The decree holder
must satisfy the court that the appointment of the receiver is likely to benefit both the
decree-holder as well as the judgement-debtor rather than a sale of the attached
property. It has also to be satisfied that the decree is likely to be realised within a
reasonable time from the attached properties so that the judgement-debtor may not be
burdened with property while he is deprived of the enjoyment of it. This section should
be read with the provisions of Order 40, Rule 1 regarding the appointment of the
receiver and his powers. A decree-holder cannot be permitted to pray for the
appointment of the receiver in respect of the property which has been expressly
excluded from the attachment by the statute.

21
(1980) 2 SCC 360.
22
Section 56, CODE OF CIVIL PROCEDURE, 1908.
23
Section 50, CODE OF CIVIL PROCEDURE, 1908.
24
Section 52, CODE OF CIVIL PROCEDURE, 1908.

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 Conclusion

Therefore, at the end , it can be concluded that though it is true that the function of the
executing court is to carry into effect the decree of the trial court. The function of the
executing court is to merely enforce the decree- holder’s decree in order to enable him
to realise the fruits of his decree. Therefore, during the execution proceedings the
executing court cannot vary, modify, alter or change the decree. It cannot go behind the
decree and had to take the decree as it stands.25

But during the study of the general principle that the executing court cannot go behind
the decree, the researcher has come across certain exceptions when the executing court
can go behind and examine the decree of the trial court by looking into the pleadings,
written statements, judgement and decree in order to construe the true meaning of the
decree in cases where there is ambiguity or confusion about the decree or in instances
where the decree appears to be vague and the executing court feels it needs to look into
the file to ascertain the nature of the decree or the mode of execution that needs to be
undertaken in order to enforce the decree.

Also, when the decree is a nullity on grounds of lack of jurisdiction and this fact appears
on the face of the record, the executing court can go behind the decree and can refuse
to execute it as such decree amounts to a nullity in the eyes of law.

As regards modes of execution, Section 51 of the Code prescribes the various modes
that a decree-holder can apply for in order for him to realise the fruits of his decree.
Though the choice of mode of execution lies with the decree- holder, the executing
courts still have discretionary power to refuse to grant a particular mode of execution.

Therefore, to sum up the executing courts do have powers in certain cases to go behind
the decree of the trial court in order to effectively carry out the decree of the trial court.

25
M.P Tandon, CODE OF CIVIL PROCEDURE (Allahabad Law Agency: Allahabad, 1990).

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