Execution of decree

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Execution of decree

Before understanding the concept of execution of decree, it is equally pertinent to know the reason as for the requirement of execution of decrees. When a judgment is passed in favour of one person, for instance Y therefore, as the matter involved a sum of money for Rs. 5,000 which is owed by Z to Y. In such a case, even after the decree in favour of Y is passed, The X person did not pay him the due amount, Y can go for execution of decree which is passed in his favour. In the abovementioned instance Y is thus decree holder and Z is a judgement debtor.

The provisions dealing with the same are dealt 36 to 74 and Order XXI of the Code of Civil Procedure, 1908 which in particular does not provide for the definition of the term execution. The same can be derived from dictionary meaning which says that execution signifies the enforcement or giving effect to a judgement or order of a court of justice. Therefore to aptly define an execution decree and its purpose, it was held in that “The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes and the judge, being entrusted exclusively with the administration of justice, is expected to do better”

Who has the authority to execute decrees?

Coming onto the question as to who has the authority to execute a decree, Section 37 comes to the rescue which states that court which passed a decree which can be the court of first instance which actually passed the decree or the court of first instance in case of appellate decrees or 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 where the court of first instance has ceased to have jurisdiction to execute the decree, the court which at the time of execution would have jurisdiction to try a suit. Therefore a simple understanding can not be reached upon that a court which has passed a decree, nor a decree is transferred for execution, cannot execute it.

In regard of transferring of decrees for execution, it can take place by two modes which are firstly, if the executing court itself transfers it and secondly, if an application is made by the decree holder for such a transfer. Though this power of the court is discretionary but it has also been clarified by the content of the Code 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.

 For these modes of such transfer of decree for execution to be made applicable, the following grounds should exists which are firstly, that the judgement debtor actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such court. Secondly, the judgement 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 other court or Thirdly, if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of such other court or lastly if 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.

While the transfer is being made, it can be observed that it also highlights powers of the courts which have transferred the decree for execution and the court to which the transfer is being made for such execution. In case of a transferor court, such court will cease to have jurisdiction for execution of such decree once a transfer is being made. On the other hand, the transferee court will have all the powers to execute a decree as if it had been passed by the transferee court itself.

There is also a provision in regard of transfer of decrees for execution wherein a foreign decree is transferred in India. Section 43-44-A deals with such cases which are applied to the courts which are the Indian courts to which the provisions of the Code does not apply, The courts situate outside India which are established by the authority of the Central Government or revenue courts in India to which the provisions of the Code does not apply or lastly the superior courts of any reciprocating territory. While, on the other hand, in case if the foreign court is the transferee court where a decree for execution has been transferred by an Indian Court, the same is being dealt with under provisions of Section 45 of the Code.

Talking about the procedural part, as to how a decree is executed by the court, the same is provided under Order XXI Rule 3-9. Talking in general the procedure is simple which confers the same powers, which at the risk of repetition are as if the transferee court has itself passed such decree. After sending copies of decree, certificate of satisfaction or part satisfaction and a copy of order of execution of decree, the executing court shall cause it to be filed without entertaining further proof and thereafter such court shall certify to the court that has passed the decree the fact that such decree is executed or not executed.

While the only complexity which can be conferred is the contingency where immovable property forms one estate or tenure and is situate within the territorial jurisdiction of two or more courts, it is provided under Rule 3 that any of such courts has jurisdiction to attach and sell the whole of such estate or tenure. As a concluding remark, the observation made by Bose, J. Can be quoted as “it is thus power and duty of the executing court to ensure that the defendant gives the plaintiff the very thing the decree directs and nothing more or nothing less.”