What can be done if a decree or judgment is not executed?

Execution of a decree

Execution of a decree is the final stage of any civil litigation. Out of the three stages in litigation, namely, institution stage, adjudication stage and implementation stage, the last stage is also known as execution. Decree is the operation or end result of the judgment. The execution of a decree gives the decree-holder a right to reap the benefits from such judgment.

Terms:

Execution– The term “execution” has not been defined in the code. The expression “execution” simply means the process for enforcing or giving effect to the judgment of the court. The principles governing execution of decree and orders are dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure Code.

Cause of Action:

Where a decree or judgement is not executed by the desired party, the decree holder is entitled to file an Execution Petition, directing a judgement debtor to execute the decree or judgement. The Locus Standi to file an execution petition lies in the hands of the decree holder as laid down under the provisions of the Code of Civil Procedure Code.

Related Provisions:

The Law governing the execution of decrees is laid down in section 36-74, 82, 135 and Order 21 of Code of Civil Procedure.

Appropriate Authority:

Section 37 of the Code of Civil Procedure talks about the courts that are competent to execute a decrees. A decree shall be executed by the court to which passed it or by any court to which it is transferred for execution .The expression as under section 37 includes within its meaning certain courts other than the court which actually passes the order.

Jurisdiction:

The executing court has no power to go behind the decree or question the jurisdiction of the court which passed it. It shall have powers only to execute the decree as it stands. However, it may refer to the judgement to ascertain the meaning of any ambiguous term present in the decree.

Parties:

The parties to a decree or judgement are:-

  • Decree holder – Section 2(3) of the Code of Civil Procedure defines decree holder as ‘decree holder means any person in whose favour a decree has been or an order capable of execution has been made’.
  • Judgement Debtor – Section 2(10) of the Code of Civil Procedure defines it as ‘ any person against whom an decree or an order capable of execution has been made’

Procedure:

Part E, Order 21 of the Code of Civil Procedure provide for  the procedures involved in making an application for execution and the process of how they are to be entertained, dealt with and decided.

Execution is the act of implementation or enforcement of a decree to a judicial process which authorizes the decree holder to reap the fruits of such decree passed in his favour by the competent court. An execution proceeding is put to action by the filing of an application for execution. According to the procedures laid down in the Code of Civil Procedure an execution application should be made to the court who passed the decree or to the court where the decree has been transferred to. Upon the receipt of application for execution. The court will examine the compliance of rules laid down under the act. If they are complied with, the court must admit and register such application.

Outcome:

When a judgement or a decree has been passed, the decree holder is automatically entitled to the execution of such order, decree or judgement.  This right can be exercised by the decree holder only when it is in accordance with section 136 of the Limitation Act, 1963. According to this section, where the decree holder seeks to make an application for execution it must be filed within 3 years of the date of the final decree and if in case of the applications being subsequent, within 3 years of the date of final order passed on a previous application made in accordance with law for execution.

Where the decree holder fails to file the execution petition within the desired period of 3 years, they may give to the court an application for condonation of delay stating sufficient reasons for such delay. However, accepting the condonation of delay is a discretion of the Court depending on the reasons stated in such petition.

If in case the decree holder fails to file the execution application subsequent to such limitation period he might be put in a situation with lack of any remedies or benefits available to him.

Cases:

Ghanshyam Das v. Anant Kumar Sinha:

The Supreme Court in this case held that while dealing with the provisions of the Civil Procedure Code in relation to the execution of decrees and orders and stated, “so far as the question of executability of a decree is concerned, 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 take care of the different situations providing effective remedies not only to judgment-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 inadequate measures and appropriate time, the answer is a regular suit in the civil court.”[i]

Gurpreet singh vs Union of India:

n cases of execution of money decrees or award decrees, or rather, decrees other than mortgage decrees, interest ceases to run on the amount deposited, to the extent of the deposit. It is true that if the amount falls short, the decree holder may be entitled to apply the rule of appropriation by appropriating the amount first towards the interest, then towards the costs and then towards the principal amount due under the decree. But the fact remains that to the extent of the deposit, no further interest is payable thereon to the decree holder and there is no question of the decree holder claiming a re-appropriation when it is found that more amounts are due to him and the same is also deposited by the judgment debtor. In other words, the scheme does not contemplate a reopening of the satisfaction to the extent it has occurred by the deposit. No further interest would run on the sum appropriated towards the principal.[ii]

Illustration:

T files a suit against Q for Rs. 5,000 and obtains a decree against him. Here, T is the decree-holder. Q is the judgment-debtor, and the amount of Rs. 5,000 is the judgment- debt or the amount from the decree. Since the decree has been passed against Q, he is bound to pay the decretal amount of Rs. 5,000 to T. If in spite of passing of the decree, if Q refuses to pay the decretal amount to T, he can recover the said amount from Q by executing the decree through the judicial process of filing an execution petition.

Conclusion:

Thus, as we have seen,when a decree or judgement when not executed gives chances to the decree holder to file for the execution of such order but when such right has not been invoked by the decree holder within the specified period, the effect of such non-execution is that he is not at a position to reap the benefits from such decree or is not entitled to any remedy subsequent to such non-execution.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i] (1991) 4 SCC 379: AIR 1991 SC 2251

[ii] 2008 (2) RCR (Civil) 207

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I Reshmitha G. Sarma, a student pursuing IV Year, B.Com,LLB (Hons.) in SASTRA Deemed University. My areas of interest in law include Criminal law, Taxation laws and Intellectual Property Rights. I am always inclined towards doing every work with perfection and being an extrovertI always try to work with comfort when it comes to being a leader. I believe in team-work and my socializing skills help me work with people better. I love talking and hence I am always open to debates and group discussions on any persisting legal, social or other issues. My hobbies are writing poems, eating, singing and watching movies preferablycrime and thrillers.