EXECUTION OF DECREES & ORDERS

Execution:

• Not defined in CPC.

• It is the enforcement of decrees and orders by the process of court which enables DH
(Decree Holder) to realize the fruits of a decree. Therefore, execution must be done
without any unreasonable delay so that efforts of litigant is not in vain. (Satyawati vs
Rajinder Singh & Anr.)
• What can be executed? – Decree & Orders.
• Period of Limitation:
i. Decree for Mandatory Injunction- 3 years from decree.
ii. Permanent Injunction- No limitation.
iii. Any other decree/order- 12 years.
• Who will execute? – Decree Court & Transferee Court. (Sec. 38)
• Decree Court (Sec. 37)
i. Court of first instance which passed the decree
ii. “” in case of appellate decrees.
iii. If court of first instance has ceased to exist, then the court having jurisdiction
at the time of execution.
iv. “” ceased to have jurisdiction to execute then the court at the time of execution
having jurisdiction to try the suit.

Transfer of Decree for Execution (Sec. 39-42, O. 21, R. 3-9)

As a general rule the court which passed the decree shall execute decree. But it can be
executed by executing court. The decree court may send the decree for execution to executing
court either on its own motion or on application of DH.

If the decree is sent for execution by the decree court to executing court, then executing shall
have jurisdiction over JD (Judgement Debtor)/ property.

Before sending decree for execution to executing court any of the following grounds must be
satisfied.

i. JD resides, carries business, personally works for gain within jurisdiction of

Executing Court.
 ii. JD has insufficient property within jurisdiction of decree court and has rest in
executing court’s jurisdiction.
iii. Decree directing sale of immovable property lies within executing court’s
jurisdiction.
iv. If decree courts consider necessary that decree shall be executed by executing court
then reason for same has to be written.

Execution of foreign Decrees (Sec. 43-44A)

Indian courts can execute the decree passed by,

• Indian courts where CPC is not applicable.

• Courts o/s India established by C.G.
• Revenue Courts where CPC is not applicable.
• Superior Courts of reciprocating territory.

Powers of Executing Court (Sec. 42)

• Executing court has the same power as decree court and it shall use its powers to see
the process of execution of decree. (Jai Narain vs Kedar Nath)
• Power includes,
i. To send decree for execution to another court.
ii. To execute decree against LR (Legal Representative) of JD.
iii. To order attachment of a decree.

APPLICATION FOR EXECUTION (O. 21, R. 10 to 25)

• Proceedings of execution begins with filing of an application for execution in executing

court.

JD (Judgement Debtor), LR- Legal Representative, DH-Decree Holder

Who may apply for execution? (O.21, Rule 10)

• DH (Decree Holder)
• L.R. of DH
• Representative of DH
• Any person claiming under DH
 • Transferee of DH on satisfaction of following condition (Decree must have been
transferred by an assignment in writing or by operation of law, Application for
execution must be made to decree court, OOBH must have been given to transferor and
JD)
• One or more of joint decree holders on satisfaction of following condition (decree
should be free from any imposed condition, application must be made for execution of
whole decree, and application must be for the benefit of all joint decree holders)
• Any person having special interest.

Who may not apply for execution?

1. Person who is not a DH or is not having right to execute decree.

2. Third party or stranger.
3. Son of a receiver.

Execution may be taken against JD, LR of JD, Representative of or person claiming under JD,
Surty of JD.

Provision of Res Judicata also applies to execution proceedings. But to operate as res judicata
the execution application must be heard and finally decided by the court. (Shivshankar Prasad
vs. Baikunth Nath)

In the case of Surendra Kumari vs Roshanlal it was held that non filing of suit under O.21, R.
63 make order of rejection conclusive and subsequent suit is barred by principle of constructive
res judicata.

STAY OF EXECUTION (O. 21. R. 26)

As per Rule 26, JD shall show sufficient cause, furnish security and fulfil conditions imposed
by executing court. If these conditions are fulfilled then execution may be stayed by applying
to decree court or appellate court.

A transferee court cannot invoke inherent power to grant stay (Shaukat Hussain vs
Bhuneshwari Devi).

Stay of execution pending suit, R.29

• The execution of a decree will be stayed if suit of JD is pending against DH in a court.

For this purpose, JD shall furnish security and the execution will be stayed till disposal
of suit.
 • Object:
1. To adjust claims of JD and DH against each other.
2. To prevent multiplicity of execution proceedings.
• For application of Rule 29 there must be 2 simultaneous proceedings in one court.
(Execution of proceedings of DH against JD and suit of JD against DH) - Shri Krishna
Singh vs Mathura Ahir.

MODE OF EXECUTION

When DH files an application for execution of a decree then executing court can enforce
execution.

As per sec. 51 the executing court can use its power to enforce execution. There are various
modes of execution of a decree and the limitations and conditions are specified for different
modes in respective provisions.

DH shall decide the mode of execution and file application for execution.

Following are various modes of executing decrees

1. Delivery of property
2. Attachment & sale of property
3. Arrest & Detention
4. Appointment of Receiver
5. Other: Payment, Specific Performance, Restitution of Conjugal Rights, Specific Relief,
etc.

MODES OF EXECUTING DECREES

1. DELIVERY OF PROPERTY
I. Movable Property

Decree for movable property may be executed by [Sec. 51 (a)], R. 31

• Seizure & delivery of property

• Detention of JD
• Attachment & sale of property
• Both Attachment & Detention.
II. Immovable Property, R. 35
• Delivery of possession to auction purchaser who has purchased of property in auction
sale.
• If property is in possession of JD or person bound by decree then it may be executed
by removing such person and by delivering possession to DH. (By removing person
who refuses to vacate his property)
2. ATTACHMENT & SALE OF PROPERTY- Sec. 51 (b)
a) Execution can be done by
• Attachment & sale
• Sale without attachment.
b) If property is within court’s jurisdiction, then only court is competent to attach the
property.
c) What can be attached? [Radhe Shyam vs PNB]
Lands, houses, goods, money, pro-note, govt. securities, bonds, etc. and any saleable
property (including debts) over which JD has disposing power (or its profit) (even if
not in his name-Trustee), can be attached and sale EXCEPT
• mere right to sue (Sec. 6, TPA)
• books of accounts
• tools of artisans, portion of agriculture produce, etc
• any right of personal service
• cooking vessels, JD and his wife children, personal ornaments
• houses and other buildings.
• HOW MUCH CAN BE ATTACHED
i. In case of OTHER DECREE (i)- 1/3rd of (X-100)
Ex: Salary- Rs. 91,000
91,000-1000 (Amount can’t be attached) *1/3= Rs. 30,000.
ii. In case of MAINTENANCE (ia)- 2/3rd
Ex: Salary- 91,000
91000 * 2/3= Rs. 60,666.66
d) Attachment is a preliminary step to sale- Notice is given to JD (Hamda Ammal vs
Avadiappa Pathar).
e) Any private alienation of attached property is void to the extent of enforceable claims.
Ex: Payment of dividends. (Sec. 64) [Om Praksh vs Ganga Sahai]
 f) Takkaseela Pedda Subba Reddi vs Pujari Padmavathamma & Ors. Case it was held
that executing court has jurisdiction to sell attached properties only to the point at which
decree is fully satisfied.
g) SALE OF PROPERTY [Sec. 65-73, R. 64-94]
• Any property which is attached or liable to sale may in execution be sold and
proceeds shall be paid to the DH.
• If the attached property is ordered for sale by public auction then the court shall
first make proclamation of the intended sale. (R.66-67)
• When the property is of perishable nature then prior consent of JD shall be taken
in writing to sale. Once consent is taken, immovable property can be sold within
15 days and movable property can be sold within 7 days from the date of
proclamation. (R. 68)
• The court has discretion to adjourn the sale to specific day or hour but if
adjournment is for more than 15 days, fresh proclamation is required.
As soon as debt and costs are deposited to the officer conducting sale or to the court
then sale of property shall be stopped. (Radhey Shyam v. Shyam Behari)
Sale of Movable Property (R.74-78)
• Sale of movable property in execution of decree shall happen within the jurisdiction
of court.
• Price of the property shall be paid at the time of sale. [R. 77 (1)]
• On payment of price, the sale becomes absolute. [Rule 77(2)]
• In case of default by the purchaser in payment of price, the property will be re-sold
and the defaulting purchaser should be liable for the deficiency in price on such re-
sale. (R. 71) [Gopal Krishna Das v. Shailendra Nath]
• Sale of movable property in execution of a decree cannot be set aside on the ground of
irregularity in publishing or conducting the sale. [Dhirendra Nath v. Sudhir
Chandra]
• Application to set aside sale on the grounds of irregularity or fraud does not render the
sale to be set aside unless there is a substantial injury to JD. (Seth Banarasi Dass v.
Dist. Magistrate and Collector, Meerut)
• Once the order for confirmation of sale is made the sale becomes absolute. (R. 90)

Sale of Immovable Property (R. 82-94)

1. Courts except small causes can order for sale of immovable property in execution.
2. Postponement of sale to enable the JD to raise the decretal amount by private alienation
like sale, mortgage, lease, etc. is allowed, however the postponement remains with the
discretion of court and cannot be claimed by JD as a matter of right.
3. Purchaser of property shall initially deposit 25% unless exempted by court and non-
compliance of the same will make the sale nullity. If the amount is not deposited by the
purchaser, then property shall be resold and defaulting purchaser will pay amount of
deficiency in price. (Manilal Mohanlal vs Sardar Sayed Ahmed)
4. For Setting aside sale on deposit 5% of purchase price shall be deposited by auction
purchaser and the entire amount shall be paid to DH as per Proclamation. This provide
last chance to JD set aside sale before it is confirmed by court. (Mohan Manucha vs
Manzoor Ahmed)
5. Setting aside sale for irregularity or fraud: allowed, if the irregularity or fraud is
material and had caused substantial injury to the applicant by such fraud or irregularity.
(R. 90)
6. Setting aside sale on JD having no saleable interest: allowed and auction purchaser can
make application. (R. 91) This rule is an exception to rule of caveat emptor.
(Ahmedabad Municipal Corp. vs Haji Abdulgafar)
3. DELIVERY OF PROPERTY (R. 97-103)
A. Resistance to delivery of possession: R. 97-103
• When DH or purchaser of property in sale is restricted by JD or agents without
any just cause to obtain possession of the property then civil court may order
prison for 30 days and direct DH or purchaser to be in possession of property.
• DH or Purchaser can make an application to the executing court complaining
resistance or obstruction of possession. (R. 97)
• If JD is dispossessed of immovable property by DH or purchaser then complain
can be made to court for such dispossession.
• The court shall after receipt of application make inquiry to determine questions
relating right, title or interest in property which has been arisen b/w parties or
representatives to the suit. (R. 97 & 103)
• The court shall pass following orders,
a) Allowing application of DH or purchaser or directing them to put into
possession of property.
 b) Dismiss the application.
c) Pass any other necessary orders.

Applicants cannot be deprived of their rights to object or obstruct the execution proceedings as
a result of rejection of impleadment applications. (Rajendra Kumar & Ors. Vs
Rameshchandra & Ors.)

The executing court shall decide the matter pertaining to the issues relating to dispossession of
property. (NSS Narayana Sarma vs Goldstone Exports Pvt. Ltd.)

h) PRECEPT (Sec. 46)

It is an order or direction given by the decree court on an application of DH to executing
court to attach the property belonging to JD.
• Decree court issues precept to competent to attach property.
• This enables DH to obtain an interim attachment of property of JD in executing
court so that fruits of decree can be enjoyed by DH. This safeguards interests of
DH.
• Maximum attachment: 2 months (temporary) unless,
1. Decree court extends
2. Decree transferred to attachment court
3. DH applies for sale.
i) GARNISHEE ORDER (R. 46A – 46I)
• Debtor of JD is a garnishee.
• Garnishee proceeding is a proceeding where DH seeks to obtain money or
property of JD which is in the hands of third party (Debtor or JD/Garnishee).
• The object is to make the debt due by the debtor of JD and to obtain the same
in execution without filing separate suit.
• As per sec. 46A, once the application has been received from creditor for
attachment, notice shall be sent to Garnishee and the Garnishee shall pay the
debt due to JD in court or satisfy the reason for not doing so. Amount so paid
by the garnishee shall be utilised towards satisfaction of decree and costs of
execution.
• If Garnishee does not pay or does not appear in the court then execution may
order decree against him. (46B)
 • The executing court may order the garnishee to pay the money to DH. Once the
payment is made garnishee is discharged. (46 F)
• When garnishee disputes liability then in that case issue shall be considered as
issue in suit and for determination of issue the court may transfer the jurisdiction
to appropriate court. (46 C)
• When debt belongs to third party then he shall be called to appear in court and
state nature of his claim and the court may pass necessary orders relating to lien,
charge or interest of such person. (46D-E)
4. ARREST & DETENTION- Sec. 51 (c)

Arrest and detention may be ordered if decree is for payment of money, specific performance
of contract or injunction and decree is against corporation.

• If decree is for the payment of money, no detention in prison is allowed unless,

i. Opportunity to JD to show cause
ii. Reasons to be recorded in writing: a) JD has intention to obstruct or delay
execution, b) likely to abscond, c) disposed of property in a wrong way after
institution of suit.
iii. Has means to pay but still refuses or neglected to pay.
iv. Fiduciary capacity of JD.
• In case of decree for payment of money following person shall not be arrested or
detained. [Sec. 56, 58, 135, 135-A]
i. Woman, judicial officers, parties, pleaders, mukhtars, revenue agents,
recognized agents and witnesses acting in obedience to summons.
ii. Member of Legislative Bodies.
iii. Any person or class of persons whose arrest as per state govt. is necessary
causing danger and affecting public.
iv. JD, if decretal amount is Upto Rs. 2000.
• Subsistence allowance shall be paid to JD. (Se. 57)
• Notice (O. 21, R.37 & 40) shall be served to JD if decree is for payment of money and
JD shall be given OOBH to show cause reason for not committing to prison. The object
is to prevent debtor who are not capable to pay debt due to factor beyond their control.
(Jolly George Verghese vs Bank of Cochin) [R.40+R.37]
 • Maximum detention: Upto Rs. 2000-no detention, more than 2000-5000- 6 weeks,
more than 5000- 3months.
• Release shall not mean discharge of liability.
• Release of JD in following cases is allowed,
i. If JD paid amount mentioned in the warrant.
ii. Decree against JD is fully satisfied.
iii. On request of DH.
iv. On ground of illness.
v. Omission of DH to pay subsistence allowance.
• Rearrest of JD-
a) If he is released because of mistake of jail authorities.
b) Non-payment of subsistence allowance to JD due to which he could not be sent
to jail and his arrest is not unlawful.
c) Illness.
5. APPOINTMENT OF RECEIVER- Sec. 51 (d)

It is also known as equitable execution and this mode of execution cannot be claimed as a
matter of right and it is entirely the discretion of court. (Onkarlal vs Rampal)

Appointment of receiver is an exceptional remedy and a very strong case must be there in
support of it.

6. OTHER
A. Payment of Money: Rule 30
a) By detention in civil prison of the JD, or
b) By attachment & sale of his property, or
c) By both.
B. Specific Movable Property: Rule 31
a) By seizure of the movable,
b) By delivery to the party to whom it has been adjudged, or
c) By detention in civil prison of the JD, or
d) By attachment of his property, or
e) By both.
C. Specific Performance for Restitution of Conjugal Rights or an Injunction: Rule 32
a) By attachment of property (in case of restitution of conjugal rights),
b) By detention in civil prison, or by attachment of property, or by both (in case of
injunction). [Kanwar Singh Saini v. High Court of Delhi]
D. Partition
• Order XX, Rule 18: Mandates Collector’s involvement for property assessed to
government revenue. For other properties, allows a preliminary decree with optional
further directions.
• Order XXVI, Rule 13: Permits the court to commission a person for partition post a
preliminary decree.
• Rule 14: Commissioner conducts inquiry, divides property, and prepares a report. Allots
shares, may equalize values, and distinguishes shares if directed. Court confirms,
varies, or sets aside the report, leading to a corresponding decree or a new commission
if necessary.
7. CROSS DECREES & CROSS CLAIMS, R. 18 TO 20
• Cross decree for payment of money shall be set off against each other.
• There are 2 decrees, if amount under 2 decrees are equal then both will satisfy each
other and no payment or execution will be required.
• If amounts of 2 decree are unequal then full satisfaction against smaller amount and
balance amount will be for execution.
8. CROSS CLIAMS, R. 19-20
• Cross claims provide set-off in same decree.
• If there are 2 sums are in a cross claim under same decree then satisfaction of each
claim shall be entered in decree and no execution will be done.
• If 2 sums are unequal then party entitled for larger sum may take balance for execution.
E. Legal Representative, Sec. 50
• When JD dies before satisfaction of decree then DH may apply to the court for
execution through LR of the deceased.
• When the decree is to be executed against LR then he shall be liable only to the extent
of property of deceased which has come to his hand and not disposed of.
• Execution may be done by court on its own motion or on application by DH.
• If JD had died then it is the duty of DH to bring LR for execution of decree within the
time fixed by court otherwise the execution petition shall be dismissed for default. (V.
Uthirapathi vs Ashrab Ali & Ors.)
 • Any mode of recovery of decretal amount passed by the decree court cannot be altered
by the executing otherwise same would be illegal. (Radhe Shyam Gupta vs PNB)
9. DISTRIBUTION OF ASSETS, Sec. 73
• Sec. 73 provides for rateable distribution of property against two or more DH’s. Assets
are held by the by court and several DH’s have applied to court for execution of decree
for payment of money against JD.
• After deducting cost of realization amount shall be rateable distributed to all the DH’s
in proportion of their claims.
• Priority shall be given to the debts of states & proportionate distribution to rest.
• Allows suit to compel refund (if wrongly distributed). Remedy that can be claimed is
revision.
• Orders passes u/s 73 is not appealable as decree.
• The court distributing assets is acting in administrative manner rather than judicial
manner. It is merely distributive agency and does not adjudicate rights b/w parties.
(Shankar Sarup vs Mejo Mal)
• Conditions: DH must have decree passed by decree court along with application of
execution made to executing court, application is made prior to the receipt of assets,
assets are held by court, all claimant must be participating to claim assets.

QUESTIONS THAT CAN BE DETERMINED BY EXECUTING COURT- Sec. 47

Any objections or questions of execution relating to the execution, discharge and satisfaction
of a decree between parties and LR can be decided by the executing court. The object is to
provide expeditious remedy for determination of certain questions and prevent unnecessary
litigation. (Gangubai Gopaldas Mohanta vs Fulchand)

• Executing court shall decide

a. LR of parties
b. As per explanation 2 purchaser is a party.
c. Surety of a party (Sec. 145)
• The executing court shall decide the question relating to delivery of possession to
purchaser.
• Inherent lack of jurisdiction of court. Executing court can decide whether the decree
passed by decree court has subject matter jurisdiction or not, if it found that Decree
 Court lacks jurisdiction then decree shall be null void and the same cannot be executed.
(Mantoo Sarkar vs Oriental Insurance Co. Ltd.) (Kiran Singh vs Chaman Paswan)
• As per sec. 21 (3) Executing Court can also see the competence of executing court itself.
However, if objection has to be raised against competency, then it shall be done at the
earliest possible opportunity.
• Whether decree is executable due to change in circumstances?
• Answers of sec. 47 decided by executing court are not deemed decree and no appeal
are allowed u/s. 96 of CPC. (Firm Swaroop Sher Singh & Ors. Vs Mohan Lal & Anr.)

ADJUDICATION OF CLAIMS

When property is attached in execution of decree then objection can be raised by party or their
Representatives. This objection is to be decided by executing court and no separate suit is
required. (Sec. 47)

• Order passed by executing court in adjudication of claims and objections shall be decree
and appeal is allowed. However, no Revision is allowed against order.
• Any person who has some right, title or interest in the attached property may file a claim
or raise an objection against the attachment. (UOI vs Jardine Henderson)