EXECUTION GENERAL PRINCIPLES, POWER OF EXECUTING COURT

TABLE OF CONTENT

INTRODUCTION
CONDENT
MEANING OF EXECUTION
 WHETHER THE EXECUTION COURT GO BEHIND THE DECREE?
 WHETHER EXECUTION COURT CAN LOOK INTO THE JUDGEMENT, WHEN
THERE IS A CONFLICT BETWEEN THE JUDGEMENT AND DECREE?
 WHETHER THERE ARE ANY LIMITATIONS IN THE POWERS OF EXECUTION
OF COURT?
 WHETHER THE JURISDICTION MATTERS IN THE GENERAL PRINCIPLE OF
EXECUTION OF COURT?

CONCLUSION
BIBLIOGRAPHY
INTRODUCTION

A lawsuit includes three stages: the actual filing of the case, the judgement rendered in the
litigation, and the conclusion of the lawsuit. The last stage of a lawsuit, or its actual
implementation, is referred to as execution. The judgement debtor (the person against whom
the judgement was issued) is in charge of carrying out the decree once it has been issued by the
court. in order for the decree-holder to gain something from the judgement.

The method by which a decree holder makes a judgement debtor follow the decree's or order's
orders, as appropriate, is called execution. It enables the decree holder to reap the rewards of
the decision. When the judgement creditor or decree holder receives the money or other item
granted to him by the judgement, decree, or order, the execution is said to be complete.

A judgment-debtor is obliged to carry out the decree or order's instructions through execution.
Execution is the process of putting a court of justice's order or judgement into effect. The
execution is complete after the decree-holder receives the item awarded to him by the
judgement, decree, or order.

In India, difficulties of a litigant begin once he obtains a decree. The Civil Procedure Code
does not define the word execution. But CPC1 contains detailed provision for execution of
decrees. Execution refers to the process of carrying out a court of justice's order or verdict, as
well as giving it effect. Execution is the process of carrying out or putting into practice a court's
decision. Execution is the procedure through which court-issued judgments and orders are put
into effect so that the decree's intended recipient can reap its benefits. When the judgement
creditor or decree holder receives the money or other item that was granted to him by the
judgement, decree, or order, the execution is said to be complete.

CONTENT

A decree may be carried out either by the court that issued it or by the court that receives it. A
court cannot carry out a decree that hasn't been approved or that hasn't been transmitted for
execution. The court that would have jurisdiction in the case at the time of filing the application

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CPC – CIVIL PROCEDURE CODE 1908
for execution may carry out the judgement in cases where the court of first instance has ceased
to exist or no longer has the authority to do so.

This is an area of research which will help in understanding the power of court to go behind
the decree. Also, will help to analyse the power of execution court to look into the judgement
when there is a conflict between decree and judgement. Further it helps understand the
limitation of the power of execution court and last the importance of jurisdiction for execution
court in its general principles

The method by which a decree holder makes a judgement debtor follow the decree's or order's
orders, as appropriate, is called execution. It enables the decree holder to reap the rewards of
the decision. The execution is deemed complete whenever the judgement creditor or decree
holder receives the money or other object given to him by the judgement, decree, or order. the
article of concept of execution by Abishek kumar is understable and according to him execution
is the fruit of the decree.2

Adjudicatory bodies uphold the law, equality, natural justice principles, and morality therefore
the journal of srinivasa rao on execution proceedings helps to catch and analyse on the power
of executing court to be involved with the procedure and jurisdiction

This study relates to issues that arise after the decree has been passed. An executing court has
complete authority to rule on all issues pertaining to the implementation of a decree. It
addresses all issues that crop up both before and after the decree is put into effect. The court
may regard a suit as an application for execution or an application for execution as a suit in the
interests of justice for the aforementioned situation. When such a power is used, the date that
matters most is often the day the original proceeding was started rather than the conversion
date. An executing court has the authority to modify remedies in light of new information.

Execution, implementation, and enforcement of a decree or order are significant actions since
they have to do with reaping the benefits of the decree or order, as the case may be. It is
sometimes claimed that the problem for the decree-holder would start as soon as the decree
was obtained since there would be several barriers, procedural details that might get in the way,
and numerous obstructions that could be made for realising the benefits of the decrees or orders.

This research contains four research question, that are

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CONCEPT OF EXECUTION by Abishek kumar on dated APRIL 5, 2015
  Whether the execution court go behind the decree?
 Whether execution court can look into the judgement, when there is a conflict between
the judgement and decree?
 Whether there are any limitations in the powers of execution of court?
 Whether the jurisdiction matters in the general principle of execution of court?

MEANING OF EXECUTION

The code does not specify what is meant by "execution." "Execution" refers to carrying out,
putting into practise, or imparting legal authority to a court decision or judgement. The act of
carrying out or giving effect to a court's decision is referred to simply as "execution."

As per Rule 2 (e) of CRP “Execution Petition” means a petition to the Court for the execution
of any decree or order.

As per Rule 2(f) CRP3 “Execution Application:” means an application to the Court made in a
pending execution petition, and includes an application for transfer of a decree.

In Ghanshyam Das v. Anant Kumar Sinha 4, The Supreme Court addressed the code's
provisions relating to the execution of orders and decrees and declared that the law contains
comprehensive provisions that address every issue pertaining to a decree's capacity to be
carried out in all respects.

The Court additionally noted that multiple sections of Order 21 address a variety of scenarios
and offer judgement debtors, decree holders, and claimant objectors adequate remedies. The
sole option available is to file a typical civil court action when statutes don't give a party who
has been wronged the means of remedy and enough time.

The Court went on to say that because the Civil Procedure Code's remedy is thought to be of a
higher judicial calibre than those provided by other laws, judges are expected to perform better
because they are responsible for delivering justice.

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Civil Rules of Practice
4
Ghanshyam Das v. Anant Kumar Sinha (1991) 4 SCC 379
The relevant provisions on execution in CPC are; Sections 36 to 74, Sections 144, 146 and 148
CPC and order 21; Chapter XVI Rue 205 to 285 of CRP; Section 125 to Section 129, section
134 to Section 137 of Limitation Act.

A decree may be carried out by the court that issued it or the court that receives it for execution,
according to Section 38 of the CPC. The term "court which passed a decree" is defined in
Section 37, and Sections 39 to 45 outline the criteria and powers of the executing court as well
as the transfer of a decree from the court which passed it to another court for implementation.
Therefore, it is necessary to read these portions all at once.

The definition of "court which passed a decree" is given under Section 37 of CPC. The section
broadens the definition of "court which passed a decree" in order to provide decree holders
with more opportunities to reap the benefits of a judgement that was passed in their favour.

A decree may be carried out by the court that issued it or the court that receives it for execution,
according to Section 38 of the Code. The term "courts which passed a decree" is defined in
Section 37, and Sections 39 to 45 deal with the powers of the executing court as well as the
transfer of a decree from the court that passed it to another court for implementation. Therefore,
it is necessary to read everything at once.

One of the most significant clauses of the Code pertaining to execution is Section 47. It deals
with challenges to the execution, discharge, and satisfaction of a decree and only pertains to
issues that arise after the issuing of a decree. It establishes the rule that issues arising between
the parties or their representatives about the execution, discharge, or satisfaction of a decision
shall be resolved in execution procedures rather than through a separate lawsuit.

 Whether the execution court go behind the decree?

No, an executing court cannot disregard a judgement or contest the authority of the court that
issued it. Its duty is to carry out the directive in its present form. However, if the wording of
the decree is unclear, it may consult the decision to clarify their meaning.

In Sunder Dass v. Ram Prakash5 it was held a decree intended to be executed may be declared
illegal in an execution procedure if the court seeking to carry it out lacks inherent jurisdiction

5
Sunder Dass v. Ram Prakash 1977 AIR 1201
over the matter. The executing court cannot review the decree or inquire into its legality or
accuracy.

In Seth Hiralal Patni v. Sri Kali Nath6 the High Court observed that only the claim that the
court that issued the decree lacked inherent jurisdiction over the case's parties or its subject
matter allowed for a challenge to the decree's legality during execution proceedings.

In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors7 the High court held that, when
the decree is made by a Court that lacks inherent jurisdiction to make it, an objection to its
validity may be raised in an execution proceeding if the objection appears on the face of the
record; however, if the objection regarding the jurisdiction of the Court to pass the decree does
not appear on the face of the record and necessitates examination of the questions raised and
decided at the trial or which could have been but were not raised, the executing Court will
examine the issues raised and decided at the trial.
The Supreme Court observed that the High Court was of the view that the executing court must
decline to carry out a decree on the grounds that it is void because the court that issued it lacked
inherent jurisdiction. But the Supreme Court gave the judgement as, if the objection does not
appear on the face of the record, the executing Court cannot inquire into those facts. In order
to assess whether the Court that passed the decree had jurisdiction to try the case, it is required
to ascertain the facts on which the question hinges.

 Whether execution court can look into the judgement, when there is a
conflict between the judgement and decree?

Yes, when there is a conflict between the judgment and decree and if execution court feels that
decree is not properly drafted, then the execution court can look into the judgment to know the
intention of the court.
In State Bank of India vs Maa Sarada Oil Mills and Ors. 8 The trial Court drawn up the final
decree on the basis of preliminary decree which resulted in error in final decree also.

6 Seth Hiralal Patni v. Sri Kali Nath 1962 AIR 199

7
Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors 1970 AIR 1475
8 State Bank of India vs Maa Sarada Oil Mills And Ors. AIR 2003 Gau 22
In this case the decree holder petitioner included the interest amount in the execution petition
after properly calculating it in accordance with the ruling. The respondents in this case, who
are the judgement debtors, filed an objection petition under Section 47 of the C.P.C.
challenging execution on the grounds, among other things, that the sum stated in the execution
petition did not match the amounts specified in the decree.
It is a well-established legal principle that, notwithstanding any discrepancies between the
judgement and the decree, the genuine intention of the outcome of the matter should be
ascertained via reconciliation of the two documents. It is best to read the decree and judgement
together rather than separately. The knowledgeable Executing Court has a duty to carry out the
decree as written and may not issue any orders that would invalidate the verdict.
The Supreme Court had the opinion that considering the combined interpretation of the
decision and decree, the opinion to hold that the impugned order made by the learned Executing
Court is improper. Since he neglected to take into account the "interest" imposed by the learned
trial Court in adopting the preliminary decree before the final decree, the learned Executing
Court failed to act within its authority when it issued the contested order.

The executing court can not only go through judgment and decree but also go through pleadings
and proceedings up to decree to know the intention of the trial court in passing the decree.

In Bhavan Vaja and Ors. vs Solanki Hanuji Khodaji Mansang 9 the Supreme Court observed
that, it is true that an executing court cannot overturn a decree that is currently being carried
out. However, this does not negate its need to learn the full impact of that decision. The
pleadings and the processes leading up to the decree may be taken into account for construing
a decree, and in suitable circumstances, they should be. The court frequently has to learn how
such words came to be used in order to determine the meaning of the words used in a
judgement. The execution court has a clear obligation to do that, and if it fails to do so, it has
clearly failed to execute the authority granted to it. Evidently, the execution court in this case
believed that simply seeing the finalised order was sufficient to establish the scope of its
authority.

9 Bhavan Vaja And Ors. vs Solanki Hanuji Khodaji Mansang AIR 1972 SC 1371
  Whether there are any limitations in the powers of execution of court?

There are several limitations on execution court passing a decree along with the modes of the
execution court.
The Code specifies several execution modes. The executing court has the authority to carry out
a decree's execution if the decree-holder submits an application for its execution. The
substantive provision (Section 51) "merely enumerates several means of execution in general,
while the criteria and constraints under which the particular modes alone may be utilised are
stipulated further by separate laws." (Order 21)
A judgment-debtor may be arrested and held in a civil jail or by appointing a receiver, or by
enacting partition, or in any other way that the nature of the relief may require. A decree may
also be enforced by delivery of any property listed in the decree, attachment and sale, or sale
without attachment of any property. Rules 30 through 40 of Order 21 include specific
instructions on the method of execution.
ARREST
Arresting the judgement debtor and placing him or her in a civil jail is one way to carry out a
court order. In general, a court of law cannot compel the decree-holder to choose a certain
method of execution in the absence of unique circumstances since the decree-holder has the
freedom to select how to carry out his decree. The arrest and imprisonment of the judgement
debtor in a civil jail are covered by Sections 55 to 59 and Rules 30 to 41.
But there are certain persons that cannot be arrested or detained in civil like;
A women; judicial officers; the parties; member of legislative bodies ect..
According to Section 56, a woman may not be kept in custody or imprisoned in order to carry
out a financial judgement. Articles 14 or 15 of the Constitution are not violated by the
provision, nor is it arbitrary.
The execution of a decree for the restoration of conjugal rights against a woman also prohibits
the wife's arrest or incarceration.
PRECEPTS
Precepts are instructions or orders provided by the court that issued the decree to a court that
would have the authority to carry out the decision and seize any property owned by the
judgment-debtor.
According to Section 46, the court that issued the decree may, upon the decree-request, holder's
send a precept to the court whose jurisdiction the judgment-property debtor's is lying, directing
it to attach any property listed in the precept.
An order of precept is not an order transferring a decree for execution; rather, it is a measure
taken to expedite execution. For this reason, unless the situation is covered by the proviso, the
impact of the attachment in accordance with the precept is often restricted to two months.
Therefore, a permanent attachment order is forbidden.
SALE OF IMMOVABLE PROPERTY
Immovable property sales are covered by Rules 82 through 94 of Order 21. According to Rule
83, the executing court may postpone the sale in order to allow the judgement debtor to raise
decretal obligations by private alienation. The payment of purchase money by the auction-
purchaser is outlined in Rules 84 and 85. Cases of the auction-purchaser failing to make the
required payment or resell the property are covered under Rule 86. Setting aside sales and their
effects are covered in Rules 89 through 91 and 93. For sale confirmation and sale-certificate
issuing, see Rules 92 and 94. The effects of sales are declared in Section 65.
A sale application must be submitted sixty days after the selling date in order to be considered.
Invoking Section 148 of the Code or using Section 5 of the Limitation Act to set aside a sale
after the specified period is not within the purview of the executing court.

 Whether the jurisdiction matters in the general principle of execution of

The enumerated essential principles should be kept in mind while considering the functions
and responsibilities of executing courts:
(1) As a general rule, a court's territorial jurisdiction must be established before it can carry
out a judgement. As a result, no court may carry out a judgement involving property
that is wholly outside of its local jurisdiction.
(2) The decree is not subject to challenge by the executing court. It must accept the decision
as it is and carry out its provisions. It is not permitted to change or amend the terms. It
cannot contest its validity or veracity. This is founded on the idea that enforcing a
judgement is a collateral action, and as a result, no investigation into the regularity or
accuracy of the decision may be authorised in such a case.
 (3) The decree is not subject to challenge by the executing court. It must accept the decision
as it is and carry out its provisions. It is not permitted to change or amend the terms. It
cannot contest its validity or veracity. This is founded on the idea that enforcing a
judgement is a collateral action, and as a result, no investigation into the regularity or
accuracy of the decision may be authorised in such a case. If there is an inherent lack
of jurisdiction, the court's decision is void, and its invalidity may be established
wherever and whenever it is attempted to be carried out, whether through execution or
collateral procedures. Going against the decree is not an option in this situation since
there is actually no decree at all in the eyes of the law.
(4) But the record must show that there is an inherent lack of jurisdiction. As a result, the
decree would be legitimate if it included information that the court might have used to
make the decision. The executing court cannot go against the decree in such a situation;
it must be accepted and carried out in its entirety. Allowing the executing court to
exceed that threshold would elevate it to the position of a superior court reviewing the
judgement of the court that issued the decree.

CONCLUSION

It is abundantly clear from the discussion above that Order 21 of the Code of Civil Procedure
contains detailed and comprehensive provisions for the execution of decrees and orders,
addresses a variety of situations, and offers effective remedies not only to decree holders and
judgement debtors but also to objectors and third parties. An aggrieved party may launch a
lawsuit in a civil court in rare circumstances where provisions are made ineffective or incapable
of providing remedy to him.
BIBLIOGRAGPHY

 LEGISLATIONS

Civil Procedure Code 1908

Limitation Act 1963

 CASE LAWS

Ghanshyam Das v. Anant Kumar Sinha (1991) 4 SCC 379

Sunder Dass v. Ram Prakash 1977 AIR 1201

Seth Hiralal Patni v. Sri Kali Nath 1962 AIR 199

Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors 1970 AIR 1475

State Bank of India vs Maa Sarada Oil Mills And Ors. AIR 2003 Gau 22

Bhavan Vaja And Ors. vs Solanki Hanuji Khodaji Mansang AIR 1972 SC 1371

 JUDGEMENT INFORMATION SYSTEM

Indiankaoon

 JOURNALS

Concept of execution by ABHISHEK KUMAR, CNLU