Execution Petition: Process to execute Decree

The word ‘execution’ means implementation or enforcement of the order or judgment or order passed by the competent Court. A Decree means conclusiveness, or an operation of a judgment and the execution of a Decree is complete when the decree-holder gets satisfied as to its enforcement against the judgment-debtor i.e. receiving of the awarded amount or property.

It is the way by which a decree-holder compels the judgment-debtor to carry out the mandate of the Decree. To take the benefit of a decree, execution proceedings – an Application under Order XXI of the Code of Civil Procedure, 1908 (CPC) must be filed before the appropriate court/authority within 12 years from the date of Decree.

Different types of Decrees include:

• Preliminary Decree,
• Final Decree,
• Partly Preliminary and
• Partly final,
• Consent Decree,
• Ex-parte Decree,
• Decree passed in appeal,
• Decree on a compromise petition, and
• Conditional Decree – Decree with inbuilt conditions forming part of the Decree

The general rule as laid down under Section 38 of CPC is that the Decree may be executed either by the court which passed it or by the court to which it is sent for execution.

The words ‘Court which passed the Decree’ includes courts which passed the Decree (court of the first instance) and courts of the first instance in appellate Decree. The executing court cannot question the validity of a Decree or entertain an objection as to the legality or otherwise of the Decree.

It must take the Decree as it stands and executes it according to its terms. The executing court must abide by the directions contained in the Decree.

It is true that an executing court cannot question the Decree and has to execute the Decree as it stands, however, this principle has no operation when the objection is based on the effect of the provision of the Act, which deprived the party of his proprietary rights.

In these circumstances, the executing Court can refuse to execute the Decree holding that, it has become inexecutable on the account of change in the law. There are, however, some cases where the executing court can go behind the Decree such as Nullity of Decree, Ambiguous Decree and Decree made without jurisdiction.

Once the Decree is obtained, depending on the nature of the case, the Decree-holder can choose its mode of execution of the Decree under Section 51 – 54 of the CPC.

The term “Execution” is not defined in the Code of Civil Procedure. It basically means the process for enforcing the decree that is passed in favour of the decree-holder by a competent court.

As per Rule 2 (e) of Civil Rules of Practice “Execution Petition” means a petition to the Court for the execution of any decree or order.

As per Rule 2(f) Civil Rules of practice “Execution Application:” means an application to the Court made in a pending execution petition and includes an application for transfer of a decree.

Provisions on Execution in Code of Civil Procedure and Civil Rules of Practice:

• Sections 36 to 74, Sections 144, 146 & 148 Code of Civil Procedure and Order 21.
• Chapter XVI Rules 205 to 285 of Civil Rules of Practice.
• Articles: 125 to 129, 134 to 137 of Limitation Act.

Jurisdiction:

As per Section 37 of Code of Civil Procedure, the decree can be executed by the court which passed the decree and as per section 38 of Code of Civil Procedure the court to which the decree is transferred, have jurisdiction to entertain the Execution Petitions.

The classification of Order 21 is as follows-

• Applications for execution and the process to be applied.
• Stay of executions.
• Mode of executions.
• Sale of immovable property and movable property.
• Adjudication of the claims and objections.
• Resistance and delivery of possession.

Applications for Execution:

Application for execution can be made by:

• The decree holder himself.
• His legal representative if the decree holder is dead.
• Any person claiming under the decree holder.
• Transferee of Decree holder who has given notice to transferor and judgement debtor.
• Any one or more of the Decree holders where it is for benefit of all and no contrary intention is indicated.

Execution decree can be made only against the judgement debtor if he is alive or against legal representatives of judgement debtor.

The decrees that may be executed are:

• The decree of a court against which no appeal has been made shall be executed after expiry of the limitation period.
• Where a decree is reversed, modified on appeal, the only decree capable of the execution is the appellate decree, but exceptionally where the appellate judgment simply dismisses the appeal. General rule that the appellate decree alone is to be executed, does not apply and the court should look at the later decree for the information of its contents.

Modes of Execution:

The code sets down different methods of execution. After the decree holder files an application for execution of decree, the executing court can implement execution.

A decree can be enforced by:

• By delivery of any property specifically decreed.
• By attachment and sale or by sale without attachment of the property.
• By arrest and detention.
• By appointing a receiver.
• By effecting partition.
• Any such manner which the nature of relief requires.

Section 51 of C.P.C lays down the court may on the application of decree holder subject to such conditions and limitation as may be prescribed, the court may on the application of the decree holder order execution of the decree.

Execution of a decree related to payment may be executed by going through Order 21 rule 30 of C.P.C, every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by detention in the Civil Prison of the judgment debtor or, by the attachment and sale of his property, or by both.

Execution of a decree related to Specific movable property may be executed According to Order 21 rule 31(1) of C.P.C, when the decree is for any specific movable property, the execution can take place in any of the following made:

• By seizure and delivery of the property.
• By detention of the judgement debtor.
• By attachment of his properly.
• By attachment and detention both.

Powers that court hold regarding the execution of Immovable Property are According to Order 21 rule 35 sub-rule-1 of C.P.C, A court executing a decree has the power to attach the property and sell the property or portion thereof which is sufficient to satisfy the decree. After such attachment the first step is issuing proclamation of sale. Such a proclamation shall be prepared after notice to both the sides and shall comprise of following details:

• Time and place of sale.
• Details of property or part thereof to be sold.
• Revenue if any attached to property.
• Encumbrance to which the property is liable.
• Amount to be recovered under the decree.
• Such other particulars which court considers material.
• Service of notice is a mandatory requirement and non-compliance will vitiate the entire proceedings.

Execution of a decree for specific performance for restitution of conjugal rights or for an injunction must be executed According to Order (21) rule (32) of C.P.C, “Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, stay has been passed, has had an opportunity of obeying the decree and if he has wilfully failed to obey it, the decree may be enforced, in the case of a decree for restitution of conjugal rights:

• By the attachment of his property, or in the case of a decree for specific performance of a contract or for an injunction.
• By his detention in Civil Prison.
• By his detention in Civil Prison.
• By the attachment of his property.

Stay of an Execution of a decree or an order:

Rule 5 of CPC provides for the stay of an execution: Where the suit is pending in any Court decree-holder and judgment-debtor in such circumstances if the Court is found the rights of parties are required to be adjudicated by the Court where such suit is pending and unless the rights are to be determined, the decree cannot be executed in such circumstances, Court can stay the execution proceeding.

Also, when an appeal has been filed by either of the parties, the appellate court may order stay of proceedings or stay on an execution of such decree.

The objective is: to protect the interest of both the parties i.e. the decree-holder and the judgement-debtor. In case the order gets reversed by the appellate court, the disputed subject matter will stay the same, thus protecting the interest if both the parties.

The conditions preceding the court’s order regarding the stay on execution of decree:

• The application has been made without unreasonable delay.
• The applicant might suffer from a substantial loss, unless such stay is applied.
• Security has been given by the applicant for the due performance of the decree.

This decree is usually passed when both the parties are heard. However, under Rule 5(3): court have a power to make ex-parte orders in case of stay of an execution.

Execution of Claim and Objections:

The court adjudicates upon the claims to or objections in respect of attachment of property in execution of decree. Such objections are raised by judgement debtors or third parties on the ground that property is not liable to attachment.

It is necessary to observe and adjudicate upon these claims before ordering for the sale of the property as there would be no claim if the property in dispute is already sold off.

All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relating to adjudication of claim or objection shall be dealt with by the court dealing with the claim and not by separate suit.

The court satisfy all the claims and objections raised, and further allow the property to be:

• Allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit, or
• Disallow the claim or objection.
• Continue the attachment subject to any mortgage, charge or other interest in favour of any person, or
• Pass such order, as in the circumstances of the case it deems fit.

Resistance to Sale:

Where the holder of a decree for possession of immovable property or purchaser of any such property sold in execution of decree is resisted or obstructed by any person in obtaining possession of property, he may make an application complaining of such resistance or obstruction and the court shall proceed to adjudicate upon the application in accordance with the provisions of the Act.

The person in possession cannot file application under this rule but can defend his conduct when application is moved against him. The right to move such application is conferred on decree holder or judgement purchaser.

The procedure of Execution:

1. A written application is to be filed in the court that originally passed the decree or the court to which it has been transferred for execution. It shall contain all the essential information such as suit number, name of parties, date of the decree, any appeal preferred or pending, amount due, name of the person against whom execution is sought, and most importantly the mode in which the assistance of the court is required. On filing the Application, a lodging number is given for raising of defects – Time limit three weeks from the filing of Application, defects are raised by the registry.
2. On raising of defects, the Decree holder must remove all defects and get the same certified by the registry – Time limit one week from raising of the defect by the registry.
3. After the executing court has satisfied itself that all defects if any have been cured in the application and has provisionally evaluated, without prejudice to the right of the parties, the correct amount for the execution of the decree concerning the value of the immovable property, it finally gives a number to the Application for further movement. On obtaining of a final number to the Application, process or a show-cause notice is issued by the registry to the judgment debtor, only if, the execution petition is filed after 2 years of the passing of the decree, or is against a legal representative or assignee or receiver where DH is declared to be insolvent – Time limit two weeks from date of the final number.
4. Where the person to whom notice is issued under rule 22 does not appear or does not show cause to the satisfaction of the court why the Decree should not be executed, the court shall order the Decree to be executed, by the issuance of Warrant of Sale and/or Warrant of Attachment. Where such person offers an objection to the execution of the decree, the court shall consider such objection and make such order as it thinks fit – Time limit is about four weeks to eight weeks for the hearing to take place and decision of the registry.
5. Once after the court has decided upon the claims or objections (if any), raised by the judgment debtor, against the execution of a decree, the DH shall move an application requesting attachment of immovable property preceding the sale. Though sale can take place without attachment, this shall further help in protecting the interests of the Decree Holder – Time limit is about two weeks from the decision on claims/objection if any and/or final numbering of the Application, whichever is applicable.
6. Once the Warrant of Attachment is issued, the same be drawn in writing and posted at a conspicuous place adjacent to the immovable property in question, and at collector’s office if the said property is a land paying revenue to the government. Besides affixing Warrant of Attachment, it shall be publicly proclaimed with the beating of drums and other means. – The time limit is two weeks from the issuance of the Warrant of Attachment.
7. Based on the report submitted by the bailiff of Sheriff office, the registry shall issue a Warrant of Sale order in the name of the bailiff to publicly auction as per the details mentioned in the warrant on the date and place specified and report back to court with an endorsement certifying how sale has been executed or the reason why it has not been executed. – The time limit is two weeks from the submission of the report.

Execution of Foreign Decrees in India:

A foreign Decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays down the test for conclusiveness of a foreign judgment or decree, which says that a foreign judgment would be conclusive in all cases except the following:

1. When a court of competent jurisdiction has not pronounced it
2. When it has not been pronounced on the merits of the case
3. When it has been based on a wrong view of international law or a refusal to recognize the law of India in cases in which such law is applicable
4. When the proceedings carried out while obtaining the judgment are opposed to natural justice
5. When such a judgment has been obtained by fraud
6. When it sustains a claim that had been based on a breach of any law in force in India

Thus, a foreign judgment or Decree shall have to pass the seven tests mentioned above. Otherwise, such foreign judgment or Decree cannot be enforced in India as it will not be regarded as conclusive if it fails any of these tests.

There can be various challenges that can come in the ways for executing a Decree smoothly. The challenges that can be faced by the Decree holder are as follows:

1. Obstructionist proceedings: The provisions contained in Sections 51 to 74 of the CPC deal with the substantive law relating to the execution of a Decree. The numerous rules of Order XXI of the CPC take care of different situations, providing effective remedies not only to the Decree holder, auction purchaser, and Judgment-debtors but also to obstructionists claiming independent rights, title, and interest in the property. If a third-party is affected by the execution of a Decree, such a third party can make an application to the executing Court to resolve its grievances.
2. Defect in the process of the execution: There can be procedural defects as the application is not properly filed or some details are missed. These are curable defects and the same can be rectified failing which the decree cannot be executed.
3. Defect in serving the Notice under Order XXI Rule 22: The Notice should be sent to the person against whom the decree is to be executed only if the application for execution is filed after 2 years from the decree. It is mandatory to send a notice as it is a show-cause notice whereby a date is fixed as the person against whom the decree is to be executed should explain as to why the decree should not be executed against him. The notice must be properly served on the party against whom the decree has to be executed failing which the execution cannot proceed.

It can be summarized that Order 21 of the CPC is an independent code in itself and it not only provides a procedure to be followed by the decree-holder to get the fruits of the Decree but also gives an opportunity to the judgment debtor or the third party/ objection petitioner, to raise the grievances or objection in the execution proceeding itself.