Unit 14 & 15- Execution

Execution of a decree:
Execution is enforcement of Decree by recovery of money or property from the Defendant by
applying to the same court or the court within whose jurisdiction the Defendant may be having
money or property Application to be made by the Plaintiff/Decree holder.

Modes of execution of decree :

Recovery of property, Attachment, Sale, Appointment of Receiver, Civil imprisonment or Any
other mode necessary, Issuing Garnishee notice to debtors of judgement debtor asking them not
to pay him but deposit is the court.

The Civil Procedure Code, 1908 lays down various modes of execution of a decree. When the
decree holder files the application for the execution of decree, the executing court can enforce
the execution.

The decree can be enforced-

a) If the decree is for the payment of money : The decree can be executed by the detention of
judgment debtor in the civil prison or by the attachment and sale of the property.

b) If decree is for specific movable property : Where a decree is for a specific movable
property, it may be executed by the seizure of the movable property and by delivery of the
property to the party to whom it has been adjudged, or by detention of judgment debtor in the
civil prison or by attachment of his property or both.

c) If decree is for the specific performance for restitution of conjugal rights : If the decree is
passed for the specific performance of the contract or for restitution of conjugal rights, and if
the person willfully disobeys it, then the decree can be enforced by the attachment of property in
case of restitution of conjugal rights. But, in case of specific performances of contract, the
decree can be enforced by the detention of judgment debtor in the civil prison or by attachment
of his property or by both.
Where the decree is for restitution of conjugal rights, the court may order that if the decree is not
obeyed within the period as may be fixed in this behalf by the court, then the judgment debtor
shall make to the decree holder periodical payments as may be just and required. The judgment
debtor shall serve to the decree holder such periodical payment. The court may from time to
time vary or modify any order of payment made as above.

d) If decree is for execution of a document or for the endorsement of negotiable instrument :

Where the decree is for the execution of a document or for the endorsement of negotiable
instrument and the judgment debtor neglects or refuses to obey the decree, the decree holder
may prepare the draft of the document or endorsement in accordance with the terms of the
decree and deliver the same to the court. The draft is, thus, served upon judgment debtor. If any
objection is raised by judgment debtor then after considering such objections, the court shall
make such changes in the draft as it thinks fit. The decree holder shall submit the draft with the
required changes made on the stamp paper if required, to the court. The Judge or such officer
appointed in this behalf shall execute the document so delivered.

e) If decree is for the immovable property : Where the decree is for the delivery of the
immovable property, the possession of the property shall be delivered to the party to whom it
has been adjudged or to such person as he may appoint to receive the delivery on his behalf. If
any person refuses to vacate the property, then such person shall be removed from the property.
If the decree is for the joint possession of immovable property or under possession of a tenant,
then possession shall be delivered by affixing a copy of the warrant at some conspicuous place
on the property.

These are the modes of execution of the decree.

Percept
Percepts is an order or direction of one court to another court requiring the other court to do
some act.

Section 46 of the Civil Procedure Code, 1908 deals with percepts. According to Section 46, if an
application is made by the decree holder to the court, which has passed the decree, to issue
percepts to any other court which would be competent to execute such decree and a request to
attach any property
belonging to judgment debtor is made therein, then such court shall issue the percept specifying
the property to be attached. The court to which such a percept is sent, shall proceed to attach
the property in the manner prescribed in this regard for the attachment of the property in the
execution of the decree.

The attachment so made, shall continue for a period of two months. The attachment of the
property shall not be valid after the period of two months,
1. if an order of the court is not passed extending the period of attachment, or
2. before the determination of the attachment, the decree has been transferred to the court by
which the attachment has been made and the decree holder has applied for an order for the sale
of such property.

The reason behind enacting Section 46 is to prevent the judgment debtor alienating or otherwise
dealing with such property to the detriment of the decree holder. By attachment, the decree
holder is saved from the ugly intention of the judgment debtor to transfer the property to other
person. An attachment made
under Section 46 is merely to facilitate the execution.
If the judgment debtor's property is situated beyond the jurisdiction of the court passing the
decree, the decree cannot be executed by such court. The decree holder in such a case, shall
apply to the court to transfer the decree to the court within whose jurisdiction the property to be
attached and sold, is situated.
If the decree holder apprehends that the judgment debtor may alienate the property, then the
decree holder can obtain interim attachment to prevent the judgment debtor from disposing off
the property. The court to which the application for precept made, cannot attach the property by
itself. Thus, percept is an order by one court to other court.

Garnishee Notice
The term "garnishee' means, a debtor of a judgment debtor.
Garnishee is a person who is liable to pay the debt to the judgment debtor or to deliver any
movable property to judgment debtor. The garnishee order is such in which the court orders the
garnishee not to pay the debt to the creditor and shall deposit it in the court. Thus, a garnishee
order attaches the debt in
the hand of the garnishee.

The court, in the case of debt other than the debt secured by a mortgage or charge which has
been attached, issue notice to garnishee liable to pay sub debt, if the application is made by the
attaching creditors. The court may call upon the garnishee either to pay to the court the debt
due or so much amount as may be sufficient to satisfy the decree and cost of execution, or to
appear and show cause, why he
should not do so.

If the garnishee makes the payment as above, it shall be a valid discharge to him as against the
judgment debtor.

If the garnishee does not make the payment and does not appear and show cause in answer to
the notice, the court may order the garnishee to comply with the terms of such notice. If the
garnishee disputes the liability to pay, then the court may order that such dispute may be tried as
if it was an issue in the suit and thereafter pass the necessary order.
if it was an issue in the suit and thereafter pass the necessary order.

If it appears that the debt in respect of which garnishee notices is issued, belongs to a third
party or that third party has a lien or charge on or interest in such debt, then the court may order
such third person to appear and state the nature of his claim to such debts, the court shall, then
make such orders in respect of
the lien, charge or interest of such third person as it may deem fit. The orders passed in
garnishee notice are appealable as if such orders were the decree of the court. These are the
provisions of garnishee notice under the Civil Procedure Code, 1908