Civil Procedure Code

Execution
Sections 36-74 and Order 21
Execution -
● The enforcement or giving effect to a judgement or order of a court of
justice.
● The process for enforcing or giving effect to the judgment of the court.
● Execution is the enforcement of of decrees and orders by the process of
the court, so as to enable the decree-holder to realise the fruits of the
decree.
Illustrations:
A files a suit against B for Rs. 10,000 and obtains a decree against him.
Here A is the judgment - creditor or decree - holder. B is the judgment
-debtor, and the amount of Rs. 10,000 is the judgment -debt or the
decretal amount. Since the decree is passed again B, he is bound to pay
Rs. 10,000 to A. Suppose in spite of the decree, B refuses to pay the
decretal amount to A, A can recover the said amount from B by executing
the decree through judicial process.
Section 37: Court passing a decree
i) The court of first instance which actually passed the decree;
ii) The court of first instance in case of appellate decrees;
iii) Where the court of first instance has ceased to exist, the court which would have jurisdiction
to try the suit at the time of the execution; and
iv) Where the court of first instance has ceased to to have jurisdiction to execute the decree, the
court which at the time of execution would have had jurisdiction to try the suit.
Section 38: Courts by which decrees 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.
Ghantesher Vs. Madan Mohan, AIR 1997 SC 471
A court which has neither passed a decree, nor a decree is transferred for
execution, cannot execute it.
Transfer of Decree for execution: Sections 39-42; Order 21 Rules 3-9
Section 39: Transfer of decree
The court which passed the decree is primarily the court to execute it, but such court may send
the decree for execution to another court either suo motu (of its own motion) or on the
application of the decree-holder if any of the following grounds exists.
i) the judgment-debtor actually and voluntarily resides or carries on business, or personally
works for gain, within the local limits of the jurisdiction of such court; or
ii) the judgment-debtor does not have property sufficient to satisfy the decree within the local
limits of the jurisdiction of the court which passed the decree but has property within the local
limits of the jurisdiction of such other court; or
iii) the decree directs the sale or delivery of immovable property situate outside the local limits
of the jurisdiction of such other court; or
iv) The court which passed the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court.
Section 40: Transfer of decree to court in another state
Where a decree is sent for execution in another State, it shall be sent to such Court and
executed in such manner as may be prescribed by rules in force in that State.
Application for execution:
Rules 10-25 and 105-106 of Order 21 deal with execution applications.
Who may apply: Rule 10
The following persons may file an application for execution:
i) Decree-holder
ii) Legal representative of the decree-holder, if the decree-holder is dead.
iii) Representative of the decree-holder.
iv) Any person claiming under the decree-holder.
v) Transferee of the decree-holder, if the following conditions are satisfied:
a) The decree must have been transferred by an assignment in writing or by operation of law;
b) The application for execution must have been made to the court which passed the decree;
c) Notice and opportunity of hearing must have been given to the transferor and the
judgment-debtor in case of assignment by transfer.
Who cannot apply?
❖ A person who is neither a decree-holder nor has a right to execute a decree cannot apply
for execution of decree.
❖ A third party or a stranger has no right to apply for execution even if he is a beneficiary
under a compromise.
Against whom execution may be taken out?
i) Judgment-debtor
ii) Legal representatives of the judgment-debtor, if the judgment-debtor is dead.
iii) Representative of or the person claiming under the judgment-debtor.
iv) Surety of the judgment-debtor.
To whom application may be made?
❖ An application for execution may be filed in the court which passed the decree, or in the
court to which the decree has been transferred for execution.(Desh Bandhu Gupta Vs.
N.L. Anand, (1994) 1 SCC 13.

❖ Where territorial jurisdiction of a court is transferred after passing a decree, an execution

application may be filed either in the court which had passed the decree, or in the court to
which territorial jurisdiction was transferred. (Merla Ramanna Vs. Nallaparaju, AIR
1956 SC 87)
Contents of Application: Rule 11
Every application for the execution of a decree shall be in writing, signed and verified by the
applicant or by some other person proved to the satisfaction of the Court to be acquainted
with the facts of the case, and shall contain in a tabular form the following particulars,
namely-
(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) whether any, and (if any) what, payment or other adjustment of the matter in
controversy has been made between the parties subsequently to the decree;

(f) whether any, and (if any) what, previous applications have been made for the
execution of the decree, the dates of such applications and their results;
(g) the amount with interest (if any) due upon the decree, or other relief granted thereby,
together with particulars of any cross-decree, whether passed before or after the date of the
decree sought to be executed;

(h) the amount of the costs (if any) awarded;

(i) the name of the person against whom execution of the decree is sought; and

(j) the mode in which the assistance of the Court is required whether-

(i) by the delivery of any property specifically decreed;

[(ii) by the attachment, or by the attachment and sale, or by the sale without
attachment, of any property;]

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) otherwise, as the nature of the relief granted may require.

Where the application is for attachment of immovable property of the
judgment-debtor, it shall contain
a) The description of such property sufficient to identity the same; and
b) The specification of the judgment-debtor’s share or interest therein.
Mode of Execution
 After the decree-holder files an application for execution of a decree, the
executing court can enforce execution.
51. 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 sale without attachment of any property;

(c) by arrest and detention in prison [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
Modes of Executing Decrees:
1) Delivery of property
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 the property; or
ii) by detention of the judgment-debtor; or
iii) by the attachment and sale of his property; or
iv) by attachment and detention both
b) Immovable property: Rules 35 - 36
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 the judgment debtor or any person bound by the decree and
by delivering possession thereof to the decree holder.
Rules 35 and 36 provide the mode of executing decrees for possession of
immovable property to the decree-holder. 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.
2. Attachment and sale of property - Section 51(b)
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
3. Arrest and detention - Section 51 (c)
One of such modes of executing a decree is arrest and detention in civil prison
of the judgment-debtor.

Proviso:
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
i) that the judgment-debtor with the object of obstructing or delaying the execution
of the decree
a) Is likely to abscond or leave the local limits of the jurisdiction of the court; or
b) 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
ii) 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
iii) that the decree is for a sum which the judgment-debtor was bound in a fiduciary
capacity to account for.
4) Cross -decrees and cross-claims - Rules 18 -20
a) Cross - decrees: Rules 18, 20
❖ The cross-decrees for the payment of money shall be set-off against each other.
❖ If the amount under the two decrees are equal then both the decrees shall satisfy
each other and full satisfaction will be recorded and no payment is required to be
made by any party and no execution will be allowed to be taken out.
❖ If the amounts under the two decrees are unequal then full satisfaction will be
recorded upon the decree for the smaller amount, and part satisfaction upon the
decree for the larger amount, and the execution will be allowed only for the balance.
Conditions:
1) The decrees must be for the payment of different sums of money;
2) They must have been passed in separate suits;
3) The decree-holder in one decree must be the judgment-debtor in the other
decree; and
4) Each party must fill the same character in both the suits.
5) Both the decrees must be capable of execution by the same court at the same
time.
6) Applications should have been made to the court for execution of both the
decrees.
Payment of money: Rules 2,30
All money payable under a decree shall be paid either
i) by depositing in the executing court; or
ii) out of court to the decree-holder; or
iii) as per the direction of the court which has passed the decree.

The judgment-debtor is bound to pay the decretal debt in one of the above
modes.
When the payment is made out of court, the following particulars must be
accurately stated.
i) The number of the original suit;
ii) The names of the parties or where there are more than two plaintiffs or more
than two defendants, as the case may be, the names of the first two plaintiffs and
the first two defendants;
iii) How the money remitted is to be adjusted, that is to say, whether it is towards
the principal, interest or costs;
iv) The number of the execution case of the court, where such case is pending; and
v) The name and address of the payer.
Illustrations:
i) A holds a decree against B for Rs.10,000. B also holds a decree against A for the
same amount (i.e. Rs 10,000). A and B each applies for the execution of his decree
to court C which is having jurisdiction to execute both the decrees. The decrees,
being cross-decrees, will be set-off against each other fully and neither party will be
allowed to take out execution.
ii) If in the above illustration B holds a decree against A only for Rs.5000, i.e. for
the smaller amount, he will not be allowed to take out execution of his decree.
Execution will only be allowed of A’s decrees which remains due after the set-off.
Specific performance of contract: Rule 32
A decree for specific performance creates mutual rights and liabilities in favour
of both the parties.
Where a decree is for specific performance of a contract, and the
judgment-debtor wilfuly disobeys it, it may be executed by attachment of his
property, or by his detention in civil prison, or by both. (Saroj Rani Vs. Sudarshan
Kumar Chadha, AIR 1984 SC 1562).
Questions to be Determined by Executing Court
Section 47
❖ It applies only to matters arising subsequent to the passing of a
decree; and deals with objections to execution, discharge and
satisfaction of a decree.
❖ It lays down the principle that matters relating to the execution,
discharge or satisfaction of a decree arising between the parties, or
their representatives, should be determined in execution proceedings
and not by a separate suit.
Object:
To provide cheap and expeditious remedy for determination of certain
questions in execution proceedings without recourse to a separate suit and to
prevent needless and unnecessary litigation.
Conditions:
1. The question must be one arising between the parties to the suit in which the
decree is passed, or their representatives; and
2. It must relate to the execution, discharge or satisfaction of the decree.