EXECUTION –

PART 1
Sections 36 to 74 and Order 21
with 106 rules
QUESTIONS
 Explain briefly the general principles of
execution of decree?

 What are the powers of the executing

court? Explain.

 What is meant by executing court? What

are its powers?
EXECUTION
 Not defined in CPC.
 Sections 36 to 74 and Order 21 with 106
rules governs execution.

 It signifies the enforcement or giving

effect to a judgment or order of a court of
justice.
 It enables the decree holder to realize the
fruits of the decree.
 Execution is complete when the decree
holder gets money or other thing that is
awarded to him by the judgment, decree or
order.
EXAMPLE
 If A files a suit against B for rupees 10,000
and obtains a decree against B:
 A is the ‘judgment creditor’ or ‘decree
holder’,
 B is the ‘judgment debtor’
 Rupees 10,000 is the ‘judgment debt’ or
‘decretal amount’.
 Since the decree is passed against B, B is
bound to pay rupees 10,000 to A.
 In spite of the decree, if B fails to pay the
decretal amount to A, A can recover the said
amount from B by executing the decree
through judicial process.
 Order 21 is elaborate because it
provides effective remedies to
 not only the judgment creditors
 but also to judgment debtors and
 claimant objectors.

 If Order 21 does not provide the

solution in any exceptional case, then
the aggrieved party may file a regular
suit in the Civil Court.
COURTS EXECUTING
DECREES
 Sec 38 states that

A decree may be executed either

II. By the court to which it

I. By the court which
is sent for
passed it (sec 37), or execution(section 39 to 45)
SEC 37
 ‘Court which passed a decree’ includes:
 i. The court of first instance, which actually
passed the decree.
 ii. The court of first instance, in case of
appellate decree.
 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
execution, and
 iv. Where the court of first instance ceases to
have jurisdiction to execute the decree, the
court which at the time of execution would
have the jurisdiction to try the suit.
CONTD..
 Where the court of first instance ceased
to exist or have jurisdiction to execute
the decree, the decree can be executed
by the court which at the time of making
the execution application would have
jurisdiction in the matter - Merla
Ramanna vs Nallaparaju.
SEC 38
 Court which may execute the decree
(executing court)
 A) Court which passed it.
 B)The court to which it is sent for
execution.
 C) Court which has neither passed the
decree nor a decree is transferred for
execution - Ghanteshwar vs Madan
Mohan.
 (Eg: the court which passed the decree
ceases to have jurisdiction or ceases to
exist)
EXAMPLE
 Where Court A passed a decree, and thereafter a part
of the area within the jurisdiction of Court A is
transferred to Court B, two questions arise:

 Question 1 - Whether court A continues to have

jurisdiction to entertain an application for execution?
And

 Question 2 - Whether Court B can also entertain an

application for execution without a formal
transmission of the decree from Court A to Court B?

 Explanation to Section 37 makes it clear that both

the courts would be competent to entertain an
application for execution of decree.
TRANSFER OF DECREE
FOR EXECUTION
 General rule
 Court which has passed the decree is primarily the
court to execute it.

 Transfer of decree for execution – Grounds

 (Section 39 to 42 / Order 21 Rule 3 to 9)
 Such a Court may send the decree for execution
to another court either suo moto or on an
application by the decree holder if any of the
following grounds exist.

 a. 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
 b. 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

 c. The decree directs the sale or delivery

of immovable property situated outside
the local limits of the jurisdiction of the
court which passed it or

 d. 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 39 is not mandatory.
 The decree holder has no substantive right
to get the decree transferred to another
court.

 Section 39(3) clarifies that the transferee court

must have pecuniary jurisdiction to deal with
the suit in which the decree was passed.

 Section 39(4) further clarifies that the court

passing the decree has no power to execute
such decree against a person or property
outside the local limits of its territorial
jurisdiction.
PROCEDURE IN EXECUTION –
IN CASE OF TRANSFER
 1. Transferor court shall send to transferee court

 a. A copy of the decree.

 b.Certificate of non-satisfaction or part
satisfaction of the decree.
 c. Copy of an order for the execution of the
decree or if no such order is passed, a certificate
to that effect.

 2. Transferee Court shall cause the same to be

filed without further proof. Transferee court
shall have the same powers in executing the
decree as it has been passed by itself.
 3. Transferee court shall certify to the transferor
court the fact of such execution or
circumstances attending its failure to execute it.

 4. Where the decree is sent for execution to

another state it shall be executed by such court
and in such manner as may be prescribed by the
rules in force in that State.

 5. Where the immovable property forms one estate

and is situated within the territorial jurisdiction of
two or more courts any of such courts have
jurisdiction to attach and sell the whole of such
estate.
POWERS OF TRANSFEROR
COURT
 Once a court which has passed a decree
transfers it to another competent court, it would
cease to have jurisdiction and cannot execute
the decree. Maharaja of Bobbili versus
Narasa Raja.

 It is only the transferee court, to which, an

application for execution would lie.

 The limitation on power however is to the

extent of the transfer and not in respect of
other matters.
POWERS OF TRANSFEREE
COURT
 On transfer, the transferee court shall
have all powers to execute the
decree as if it had been passed by the
transferee court itself.

 After transfer, the transferee court will

decide all questions arising in the
execution proceedings.

 Its jurisdiction remains till it certifies,

to the transferor court, of the
execution of the decree.
DUTIES OF THE EXECUTING
COURT - SECTION 42
 The executing court has the same powers as that of the
transferor court, as if the decree had been passed by itself.

 1. Duty to see that the defendant gives the plaintiff the

very thing the decree directs and nothing more or nothing
less - Jai Narain vs Kedarnath

 2. Duty not to exercise power in respect of the matters

which could be determined only by the court which
passed the decree.

 3. Power to be exercised by the executing court relate to

procedure to be followed in execution for decree and do not
extend to substantive rights of the parties.

 4. The executing court cannot convert itself into the court

passing the decree.
GENERAL PRINCIPLES
 1. No Court can execute a decree in respect of
property situate entirely outside its local
jurisdiction. Territorial jurisdiction is a condition
precedent.

 2. An executing Court cannot go behind the

decree. It must take the decree as it stands and
execute it according to its terms.

 3. In case of inherent lack of jurisdiction the

decree passed by the court is a nullity and its
invalidity could be setup wherever and
whenever it is sought to be enforced whether in
execution or in collateral proceedings.
 4. Inherent lack of jurisdiction must be
apparent, if not the decree is valid. In such a
case executing court cannot go behind the decree.

 5. On death of the decree holder or judgment

debtor, it can be executed by or against his
LR’s.

 6. If terms of the decree are vague or

ambiguous an executing court can construe the
decree to ascertain its precise meaning for this
purpose, the executing court may refer not only
to the judgment but also to the pleadings of
the case.
 7. An executing court can go into the
question of the executability or
otherwise of the decree and consider
whether by any subsequent
developments, the decree has ceased to
be executable according to its terms.

 8. A decree which becomes

inexecutable by operation of law, may
become executable by virtue of a
subsequent amendment in the statute
and can be executed after such
amendment.
 9. The executing court has power to
mould the relief granted to the
plaintiff in accordance with the
changed circumstances.

 10. The court executing the decree

transferred to it, has the same powers
in executing such decree as if it had
been passed by itself.

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