Execution of Decree

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Execution of Decree

When a judgement and decree is passed by a court, it is passed against one party and in favour of another. The party in favour of whom a decree is passed is called a decree holder or judgement creditor and the person against whom a decree is passed is called a judgement debtor. If, for example, a suit related to property is decided in favour of A, he is entitled to that property but if the so is not provided to A by B, the judgement debtor, then comes the contingency which is solved through the mode of execution of decree. The provisions regarding the same are dealt with under Sections 36 to 71 of the Code of Civil procedure and Order XXI.

Coming to the jurisprudential approach behind this provision, it has been stated in Ghan Shyam Das v. Anant Kumar Sinha[1], “so far as the question of capability of execution of decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of Order 21 of the Code take care of different situations providing effective remedies not only to judgement-debtors and decree-holders but also to claimant objectors, as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under Civil Procedure Code is of superior judicial quality than what is generally available under other statues and the judge, being entrusted exclusively with administration of justice, is expected to do better.

A decree for the purpose of its execution must fulfil some conditions wherein territorial jurisdiction is a condition precedent to a court executing a decree and therefore no court can execute a decree in respect of property situate entirely outside its local jurisdiction.[2] Wherein the court lacks the jurisdiction inherently, such decree passed by that court is no decree in the eyes of law so the same cannot be executed. When the terms of a decree are vague and 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 judgement, but also the pleadings of the case.[3]

The application for the execution of decree can be made by a decree holder or a legal representative of the decree-holder, if the decree holder is dead or any other person claiming under decree holder pr transferee of decree holder if the following conditions are satisfied such that the decree must have been transferred by an assignment in writing or by operation of law and the application for execution must have been made to the court which passed the decree and the notice and opportunity of hearing must have been given to the transferor and the judgement debtor in case of assignment by transfer.

The application for the execution of decree may be filed in the court which passed the decree or in the court which passed the decree or in the court to which the decree has been transferred for execution. Where territorial jurisdiction of a court is transferred after passing a decree, an execution application may be filed either in the court which had passed the decree or in the court to which territorial jurisdiction was transferred.[4]

The application for execution can be either made orally or through written application. By oral application, where a decree is for the payment of money the court may, on the oral application of the decree holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant if he is within the precincts of the court.

By written application, Rule 11 says, save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely, the number of the suit, the names of the parties, the date of the decree, whether any appeal has been preferred from the decree, whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree, whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results, the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed, the amount of the costs (if any) awarded, the name of the person against whom execution of the decree is sought; and the mode in which the assistance of the court is required, whether by the delivery of any property specifically decreed, by the attachment, or by the attachment and sale, or by the sale without attachment, of any property, by the arrest and detention in prison of any person, by the appointment of a receiver and otherwise, as the nature of the relief granted may require. The court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.

As a concluding remark it can be said that the execution of decree is a remedial process, which provides a way of getting things done which have been decreed by the court in favour of a person and same can be done by the executing court under the Code of Civil Procedure.


References:

[1] AIR 1991 SC 2251

[2] Mohd. Naseem v. Chaman Ara (1998) 7 DLT 130

[3] Topanmal v. Kundomal AIR 1960 SC 388

[4] Merla Rammana v. Nallaparaju AIR 1956 SC 87