Execution under Civil Procedure Code, 1908

Supreet Kaur 

When the adjudication of a dispute is over, a decree is passed by the court which determines the rights of the party to a dispute. A person in whose favour a decree is passed is called decree-holder and the person against whom the decree is passed is called judgment debtor.

In civil suits usually, the judgement debtor must satisfy the decree by paying a sum of money to the decree-holder. In case it is paid, parties have no obligations towards each other but in case judgement debtor fails to comply with the decree either intentionally or owning to some reasons, the decree holder can apply for the execution of the decree.

Meaning of Execution

Execution of a decree is basically giving effect to the decree passed by the court. Execution, thus, is the last stage of any litigation. The court orders execution based on the application filed by the decree-holder. By an order of execution, the judgement debtor is legally compelled by the court to act upon the decree and enables the implementation of the decree. Execution in civil suits is governed by the provisions contained in Civil Procedure Code, 1908 (hereinafter CPC, 1908).

Execution of Order and Decree:

“Decree means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.” (Section 2(2) of CPC,1908.)

“Order means the formal expression of any decision of a Civil Court which is not a decree.” (Section 2(14) of CPC,1908.)

According to Section 36 of CPC, 1908, The provisions of this Code (CPC,1908) relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders.

Although there is difference between order and a decree, but the execution of both decree and an order are governed by same provisions. So, the modes adopted for execution of a decree are applicable to the execution of any order as well. Like a decree, an order , for its execution can be sent to another court for execution.

Which Court may execute the decree?

According to Section 38 of CPC, 1908, the decree is executed either by the

(a)Court which passed the decree or

(b) Court to which the decree is sent for execution.

The court which passed the decree: The decree-holder may file an application before the court which passed the decree, thus, making it the court of the first instance. In case, the judgement is challenged in the appellate court and the appellate court affirmed the judgement, in that case too, the court which first passed the decree that is the court of the first instance will execute it.

Section 37 clarifies that if the court of the first instance has ceased to exist (say by an Act of Parliament) or it no longer has the jurisdiction to execute the decree, the court which is instituted in place of that court would have the power to execute it.

Court to which it is sent: A decree for its execution may be sent to another court by the court which passed it. It is done by:

1. The decree for its execution may be sent to another court on basis of an application made by the decree-holder but it is done only upon the fulfillment of any of the following conditions:
   1. If the judgement debtor resides or works within the local limits of the jurisdiction of the court to which the decree is sent for its execution
   2. If the judgement debtor has the property within the local limits of jurisdiction if that court to which it is sent for execution.
   3. In case the satisfaction of decree requires sale of an immovable property to take place outside the jurisdiction of the court which passed it.
2. The court which passed the decree may take suo moto action and transfer the decree to sub-ordinate court for its execution and that sub-ordinate court must have the jurisdiction to try the suit in which the decree is passed.

According to Section 40 of CPC, 1908, When a decree is sent to another court( transferee court) for execution , the transferee court has to certify the transferor court ( the court which passed the decree) whether the decree is successfully executed and if not , give the reason of such failure to the transferor court.

Powers of the transferee court

The powers of the transferee court that is the court to which the decree is sent for execution, are the same as those available to the court which passed the decree. These powers include the:

1. Power to send the decree to another court.
2. Power to punish those who cause any hindrance in the execution of the decree.
3. Power to order attachment.

Modes of Execution

The decree may be executed in any of the modes given under Section 51 of CPC, 1908. For this, the decree-holder must file an application before the court. The decree-holder may choose any of the modes given under Section 51. No one can compel him to choose one or another mode of execution.^[1] But the court is not bound to execute the decree in the mode preferred by the decree-holder in the application since the court must decide it according to the rules given under Order 21 of CPC, 1908.

The modes of execution of property are as follow:

1. By delivery of property: The property may be movable or immovable.
   1. If the property is movable, the decree is executed by seizing the property and then delivering it to the decree-holder or any other person appointed by him. If the movable property which is seized is to be sold, it must be delivered to the purchaser. In Kanthilal v. Smt. Padma,^[2] it was held that the purchaser of the property at a sale in the execution of a decree is deemed to be a party to the suit in which the decree is passed.
   2. If the property is immovable, the execution is done by giving the possession of that property to the decree-holder or a person appointed by him. If that immovable property is already in possession of a tenant who is legally entitled to occupy it, the court may order symbolic possession that is by fixing a copy of the warrant on that property since tenants are not bound by the decree passed. In Mumtaz Jehan v. Insha Allah^[3], it was held that in the first case, that is where the property is in possession of no one, the actual possession is given to the decree-holder and in the latter case, when the property is in the possession of tenants, symbolic possession is given to the decree-holder.
2. By order of Attachment ^[4]: The property of judgement debtor can be attached so as to facilitates the execution of the decree. The attachment may be done before the decree is passed, the purpose of that is to safeguard the interest of the plaintiff in whose favour the decree may be passed. But when the attachment is done for purpose of execution, its objective is only one that is to give the fruits of the decree to the decree-holder. Section 60 lists down the property that can be attached, and which property is exempted from execution. The property to be attached may be movable or immovable.
3. By arrest and detention: The arrest and detention of the judgement debtor for the purpose of execution of decree can be ordered under the following situations:
   1. If the decree is for payment of money: If the decree is for payment of money, and arrest and detention are not ordered in the first instance even if the decree-holder has chosen this mode of execution. The order for arrest and detention can only be given in this case after giving a reasonable opportunity of being heard to the judgement debtor and if the court is satisfied that the judgement debtor is acting in bad faith to delay the execution of the decree. The judgement debtor is said to be acting in bad faith if:
      1. The judgement debtor had enough to satisfy the decree, but he refused to pay the same or
      2. If he has dishonesty transferred his property or removed any part of his property or if the judgement debtor or
      3. If he is preparing to leave the local limits of the jurisdiction of the court which is going to execute the decree. In Amulya Chandera v. Pashupati Nath^[5] : It was held that the judgement debtor can be detained if he refused to pay the amount of the decree despite having the means to pay the same.
   2. if decree is for specific movable property, the arrest and detention can be ordered on basis of application by the decree-holder.
   3. if decree is for specific performance of the contract, the arrest and detention can be ordered if the decree-holder has chosen this mode for execution in his application.

Period of detention: It depends upon the decretal amount that is the amount to be paid to satisfy the decree. If the amount is

Less than Rs 2000: No order of detention can be made.

Between Rs 2000 to 5000: Detention can be ordered for a maximum period of six weeks.

Above Rs 2000: Detention can be ordered for a maximum period of three months.

Conditions for detention: The judgement debtor is to be detained in a Civil Prison and the allowances for the same are to be borne by the decree-holder. Provided that the judgement debtor is to be released immediately if:

(i) he pays the decretal amount

(ii) the decree-holder wants so and requests that the judgement debtor should be released before the court since it was the decree-holder on basis of whose application the judgement debtor was detained.

(iii) the decree-holder fails to pay the subsistence allowances

(iv) the judgement debtor has serious health issues.

1. By appointment of a receiver: A receiver may be appointed by the court at any stage of litigation if the court thinks it necessary to do so. So, before a decree is passed a receiver may be appointed to take care of the disputed property to prevent irreparable damage to the disputed property which may be done by either party to the suit. For the purpose of execution as well, a receiver may be appointed on basis of application by the decree-holder.

A receiver is an impartial person, and he is not a party to the suit. It may be inappropriate or a very rare case that the receiver is a party to the dispute. Moreover, the receiver is duly paid for his services, but the receiver is also liable for any loss which may occur to the property owing to the negligence of the receiver. The powers of a receiver include the power to collect the rents and profits arising out of the property.

Conclusion

Execution is thus a mode adopted by the courts to enforce a decree in favour of decree-holder. Since mere passing of a decree is not enough, the decree-holder must be provided with a sufficient remedy in case the judgement debtor does not satisfy the decree. For this, various modes are given under Section 51 of CPC, 1908 and the purpose of these modes is to legally compel the judgement debtor to satisfy the decree. Since these modes are harsh enough like detention so judgement debtor is left with no option but to pay the decretal amount or to do the same which the decree demands.

1. V. Dharmavenamma v. C. Subramanyam https://www.casemine.com/judgement/in/56ea70a5607dba369a6ee500 ↑

2. ILR 1999 KarLJ 193 ↑

3. AIR 1983 Delhi 65 ↑

4. https://www.lawinsider.in/attachment-of-property-under-cpc/ ↑

5. AIR 1951 Cal 48 ↑