The General Principles of Execution of a Decree

Table of Contents

Introduction

There are three phases to a lawsuit: the filing of the lawsuit, the decision in the lawsuit, and the actual filing of the lawsuit. Execution refers to the final phase of a lawsuit, or its actual implementation. Once a decree or judgement has been issued by the court, the judgement debtor (the party against whom the decree was issued) has the responsibility of implementing the decree so that the decree-holder may benefit from the decision. A judgment-debtor is obligated to carry out the decree or order’s instructions by execution. Giving effect to a court of justice’s order or judgement is referred to as execution. The execution is complete once the decree-holder receives the item granted to him by the judgement, decree, or order. The court is not required to act on the motion suo motu if the party is not petitioning the court. The court that rendered the judgement will carry out the decree. A different court that is competent in that area will implement the judgement in extraordinary circumstances.

Execution is the process by which a decree holder forces the judgement debtor to comply with the decree’s or order’s instructions, as applicable. It makes it possible for the decree holder to obtain the benefits of the verdict. 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 considered to be complete.

Meaning, Nature and Scope

The code contains no definition for the word “execution.” The term “execution” refers to the process of enforcing, carrying out, or giving effect to a court of justice order or verdict. The process of carrying out or giving effect to the court’s decision is referred to as “execution.” Execution is the procedure through which court-issued decrees and orders are put into effect so that the decree’s holder 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 considered to be complete.

For instance, A sues B for Rs 10,000 and wins a judgement against him. The decree-holder in this case is A. B is the judgement debtor, and Rs 10,000 represents the judgement debt (also known as the decretal amount). B is required to pay A Rs 10,000 as a result of the judgement being entered against him. In the event that B refuses to pay A the amount specified in the decree, A may pursue reimbursement from B by having the decree carried out through a legal process. The principle governing the execution of decree and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21 of the code (procedural law).

In Ghanshyam Das v. Anant Kumar Sinha, which dealt with a code provision relating to the execution of decrees and orders, the Supreme Court stated that “the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all aspects.” The numerous rules of Order 21 of the code address a variety of situations and offer effective remedies to claimant objectors as well as judgement debtors and decree holders, as appropriate. The solution is a conventional lawsuit in the civil court in an exceptional situation where provisions are rendered incapable of providing relief to an aggrieved party due to insufficient measures and proper time.

Principles with regard to Execution of Decree and Order

The CPC’s provisions regarding the execution of judgments and orders must be applied to both the appeal and the lawsuit.
A decree may be carried out either by the court that issued it or by another court that has the authority to carry out the judgement issued by that other court.
The court that issued the decree may transfer it to another court for execution upon the applicant’s (decree- holder’s) request or at the court’s discretion.
A court may order for the execution of a decree on the application of the decree holder in one of the following ways:
by delivery of any property that the judgment-debtor was in possession of and for which a specific decree has been passed;
by attachment and sale of the judgment-property; debtor’s
by arrest and detention (civil imprisonment);
by appointing a receiver; or
in any other manner that depends on the
The court may provide “percept” to any other court that is qualified in that regard at the request of the decree-holder.
All disputes between the parties to the decree must be resolved by the court during the execution of the decree and not through a separate lawsuit.
When the court sells real estate in accordance with a court order, the sale is final. Purchaser is assumed to be a party to the lawsuit and the property is deemed to be invested in their favour.
The court that a decree is sent to for execution must certify to the court that the decree was passed, outlining how the decree has been carried out and the fact that such execution has taken place.

Courts which can execute decrees

A decree may be carried out either by the Court of First Instance or by the Court to which it has been referred for execution, according to Section 38 of the Code.

In order to allow the decree holder to recover the decree’s benefits, Section 37 of the Code further defines what is meant by the phrase “court which passed a decree.” The following courts are included in the aforementioned expression:

The court of the first instance;
The court that issued the final judgement in cases involving appeals;
If the court of first instance ceased to exist, the court has jurisdiction to hear the case at the moment of execution;
If the court of first instance no longer has the authority to execute the decree, the court that at the time of execution has jurisdiction to try the case.

The section’s explanation makes it clear that the court of first instance will still have the authority to carry out a judgement even if any of its jurisdictional territory is transferred to the jurisdiction of another court. In these situations, the court whose jurisdiction the area was transferred to will likewise have authority to carry out the judgement, provided that the court in question was competent to hear the case at the time the motion for execution was filed.

Transfer of decree for execution

According to Section 39, the court of first instance may grant a decree holder’s request to send the decree for execution to a different court if any of the following conditions are met:

if the judgment-debtor carries on business, or resides or personally works for gain, within the jurisdiction of such Court;
if the property of judgment-debtor does not come under the jurisdiction of the Court of the first instance but it comes under the local limits of the jurisdiction of such Court;
if the decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court which passed the same;
if the Court which had passed the decree considers that the decree should be executed by another court, but it shall record the reasons in writing for doing the same.

According to Section 39(2), the Court of First Instance may voluntarily refer it to any subordinate Court with authority over it for execution.

The Section further specifies that the court passing the decree lacks the authority to carry out the decree if it is being executed against a person or property that is located outside of its territorial jurisdiction.

The Supreme Court ruled in Mahadeo Prasad Singh v. Ram Lochan that the provisions of Section 39 are not legally binding because the court will have judicial discretion over the situation. There would be no vested or substantive right for the decree holder to have the decree transferred to another court.

Execution of foreign decrees in India

The Code specifies how foreign judgments and decrees must be executed in India. When implementing a foreign judgement or decree in India, care must be taken to ensure that it was issued by a court with appropriate authority, was conclusive, and was based on the merits of the case.

Foreign judgment and Foreign decree

A foreign judgement is a decision made by a foreign court, according to CPC Section 2(6). A foreign court is one that is located outside of India and was not constituted or maintained under the jurisdiction of the Central Government, according to section 2(5) of the CPC.

Explanation II to Section 44A of the CPC defines a foreign decree as a decision or judgement of such court that orders the payment of a particular amount of money. However, this amount of money shall not be used to pay for taxes, other fees of a similar sort, penalties, or fines. Even if an arbitral award is enforceable as a decree or judgement, it shouldn’t be included.

Any foreign judgement or decree must be definitive in nature. A foreign judgement would be conclusive in all circumstances, with the exception of those listed in Section 13 of the CPC, which sets forth the test for conclusiveness of a foreign judgement or decree.

when it has not yet been decided by a court with jurisdiction;
when a decision has not been made about the case’s merits;
when it was founded on an incorrect interpretation of international law or an unwillingness to acknowledge Indian law when it applied;
when the actions taken to secure the verdict run counter to natural justice;
if such a judgement was acquired through deceit;
when it upholds a claim that was founded on a violation of any law that is currently in effect in India.

Mode of enforcement of a foreign judgment or decree

A decree or foreign judgement may be enforced in India in one of two situations:

(1) when it was issued by a court in a territory that reciprocates; and

(2) where it was issued by a court in a region that does not.

Execution of foreign decree of a reciprocating territory in India

A decree of any higher court of a reciprocating territory must be carried out in India as if it had been issued by the district court, according to Section 44A of the CPC. “Superior courts,” with reference to any reciprocating territory, means those courts that would be specified in the said notification. “Reciprocating territory” refers to any territory or country outside of India that the Central Government has declared to be a reciprocating territory, by notification in the Official Gazette.

As a result, by submitting an execution application, a judgement rendered by a court of a reciprocating territory may be implemented in India as an Indian decree. The provisions governing execution that are outlined in Order 21 of the CPC will be applicable to the decree once a certified copy of a decree from any superior court of a reciprocating territory has been filed in a District Court. After this has been done, the decree will be executed as if it had been passed by the District Court of India.

The superior court must certify that the decree has been met or amended in full along with the original certified copy of the decree when filing the execution application.

Execution in case of decrees from non-reciprocating territories

When a new suit on a foreign judgement is brought in an Indian court with the necessary authority to hear the matter, it can only be carried out if the judgement or decree has not yet been rendered by a court of a reciprocating territory.

In Marine Geotechnics LLC vs. Coastal Marine Construction & Engineering Ltd., the Bombay High Court noted that when a judgement has been issued by a court of a non-reciprocating foreign territory, it cannot be carried out unless a new lawsuit is brought by the party who obtained the judgement on the foreign judgement, the original cause of action, or both. Three years after the date of the judgement or decree, the lawsuit must be filed.

The court further noted that Section 44A of the Code is an enabling provision that permits a decree holder to carry out a decree received from a court of a reciprocating territory. Section 13 of the Code provides substantive law, while Section 44A of the Code is an enabling provision. The concept of private international law that a court will not enforce a foreign judgement of a competent court is expressly stated in Section 13.

Execution of Indian decrees in a foreign territory

The Code’s Section 45 deals with the implementation of judgments outside of Indian territory. According to this, a court has the ability to refer a judgement for execution to a court outside of India that has been authorised by the central government. Make sure the State has stated the aforementioned section is applicable to the Court in question by publishing a notification in the Official Gazette. The following characteristics result from a simple reading of the aforementioned provision:

The decree that needs to be carried out must be issued by an Indian court and be intended for execution in a foreign country.
The transferee court ought to have been set up in such a distant country by the central government.
This clause should have been made clear to the abovementioned foreign Court by the State Government through a notification in the Official Gazette.

Therefore, the clause specifies the requirements that must be met before an Indian decree can be carried out abroad. Therefore, an Indian Court does not have the authority to submit its decree to a court outside of India for execution in the absence of either of the aforementioned circumstances in Section 45.

Execution of decree at more than one place

The Code does not contain any provisions that would restrict a decree holder from carrying out a decree simultaneously at more than one location against the debtor’s property.

According to the Supreme Court’s ruling in Prem Lata Agarwal vs. Lakshman Prasad Gupta & Ors, “simultaneous execution proceeding in more than one place is possible, but the power shall be used in a restricted manner, in exceptional cases by imposing proper terms so that the judgement debtors do not face any hardship because several executions are being allowed to be proceeded with at the same time.” As a result, concurrent execution processes are neither unjustified nor illegal.

Additionally, Section 39 of the Code permits either the Court of First Instance or the Court to which the decree is submitted for execution to carry out a decree, making simultaneous execution of a decree permissive in nature.

Procedure in execution

The execution procedure or mode is discussed in Sections 51 to 54. The court has the authority to generally enforce the decree under Section 51. The scope of the court’s authority to carry out execution is described in this section. Oral requests for execution of the decree under this provision (per Order 21 Rule 10) or written requests are both acceptable (Order 21, Rule 11). The mechanism of enforcing the decree must be chosen by the party. The court may carry out the decree as the decree-holder requests or as the court deems appropriate.

Mode of executing decree

By delivering any (movable or immovable) property that has been properly ordered.
By selling the property, either with or without an attachment. The court has the authority to seize property if it is located within its territorial jurisdiction.
By detention and arrest. This option should not be used, nevertheless, without first giving the judgement debtor a fair chance to demonstrate his innocence by way of a show-cause notice.
Nomination of a receiver for execution
If a mechanism other than those listed in clauses (a) through (c) needs to be employed to carry out a decree, clause (e) comes into effect.

Section 52 addresses situations in which a judgement is rendered against the judgment-legal debtor’s representation (deceased). If a judgement has been rendered against the party serving as the legal representative of a deceased person and the judgement is for the payment of money from the deceased person’s property, the judgement can be executed against the deceased person’s property while it is still in the legal representative’s possession. When the legal representative of the judgement debtor receives the judgement debtor’s property but fails to use it properly, the court will proceed to enforce the decree’s execution against that person as if it had been issued against that person directly. If the legal representative refuses, neglects, or evades making the payment from the deceased’s property, the court may enforce the decree against his or her personal property. Where he misappropriated the deceased’s property, and where the legal representative alienated the deceased’s property.

As per the provisions of section 53, in cases where a joint Hindu family is the target of a lawsuit, no legal representative shall be held personally liable unless he has acquired some of the joint Hindu family’s property. If someone receives property belonging to a joint Hindu family, they are obligated under pious obligation. If the decree is issued after partition and has been issued against Karta, no execution may be carried out against the son. If the case was ongoing prior to the divorce, the son may still be held accountable. If the decree has been carried out after Karta’s death and the son has divided up Karta’s property among themselves, the son will be held accountable. If Karta has taken on debt for familial or moral reasons, a member of the combined Hindu family will be held accountable. In simple words, when property is needed to satisfy a debt owed by a deceased ancestor and it is in the possession of a son or other descendant, the property will be considered to belong to the deceased who has appointed the son or other descendants as his legal representative.

When a decree for partition or for the separate possession of a share of an undivided state paying taxes to the government has been passed, Section 54 comes into effect, meaning the collector will divide the state or share. However, the civil court may divide the revenue-producing property if the collector declines to do so. It is not essential for the plaintiff to request the distribution of government revenue in order to invoke the provisions of this section. It deals with a situation where a civil court has the authority to issue a decree but lacks the authority to carry it out. The executor of the decree under this provision shall be the collector.

Powers of the transferor court

Once a court passes a decree and transfers it to another court with authority, that court loses jurisdiction over that decree and is no longer able to carry it out. After that, an application for execution can only be heard by the transferee court.

Powers of the transferee court

In accordance with Order 21 Rule 8 of the Code, a decree issued under the terms of Section 39 that has been referred to another district for execution may be carried out either by the district court to which it was sent or by a subordinate court to whom the district court may refer it. The powers of the transferee court are outlined in Section 42, which also specifies that the court receiving a judgement for execution has the same authority to carry it out as if it had been passed independently.

The Court has the authority to punish those who block the execution of the decree, and the Court shall exercise this authority as if the court had actually passed the decree. The primary goal of granting such authority to the transferee court is to guarantee that the judgement debtor pays the debt or provides the decree holder with whatever else is required by the decree.

The Court will be able to do the following things:

to transfer the judgement under section 39 to another Court for execution.
to execute a judgement against the executor of a deceased judgment-debtor in accordance with section 50.
to direct decree attachment.

The court to which a decree is sent for execution, however, will not have the authority to order execution at the request of the transferee of the decree or the authority to grant permission to execute a decree passed against a firm against anyone who is not one of the parties listed in Rule 50 of Order XXI.

Powers of executing court

The section outlines the court’s authority and jurisdiction while carrying out a decree. Oral or written requests for the decree’s execution are both acceptable. The court may carry out the decree in the manner that the decree-holder requests or in any other manner that the court considers appropriate.

Conclusion

The description above makes it very obvious that the term “execution” refers to carrying out, upholding, or giving effect to a court of justice order or verdict. The rules in Order 21 address a variety of situations and give judgement debtors, claimant objectors, and other parties besides the decree-holder viable remedies.

The Code protects judgement debtors’ rights as well. The Code also provides for a number of other ways to carry out a judgement, such as the following: arrest, custody of the judgment-debtor, delivery of possession, attachment of property, sale, partition, appointment of a receiver, payment of money, etc. As a result, the laws are made applicable or capable of providing redress to a party that has been wronged.

References

https://www.lawctopus.com/academike/concept-execution/#:~:text=A%20decree%20can%20be%20executed,claims%2C%20payment%20of%20money%20etc.

https://www.legalserviceindia.com/legal/article-7140-concept-and-general-principal-of-execution-section-38-to-46.html

https://www.legalserviceindia.com/legal/article-2628-execution-of-decree-in-civil-court.html

Author: Arryan Mohanty,
Symbiosis Law School, Nagpur/Student