By Dhruva Vig
INTRODUCTION
Litigation consists of three stages in the legal framework of Indian Courts. Firstly, initiation of litigation. Then is the adjudication of litigation. And lastly, implementation of litigation. The last stage of litigation, that is the implementation of litigation is also known as an “execution”.
Once a decree or judgment is passed by any competent Court, it is the lawful obligation of the person against whom the decree or judgment is condemned (judgment-debtor), to give effect to the decree, so as to empower the decree-holder to enjoy and appreciate the benefits of such decree or judgment.
By execution, a judgment-debtor is constrained to carry out the mandate of the Court order. Execution, in layman terms, implies giving effect to any order or judgment of a Court of competent authority.
When the decree-holder gets the thing/object granted to him by any such judgment, decree or order, the execution is said to be complete.
MEANING
The term “execution” has not been expressly defined in the CPC. The term “execution” signifies the way towards implementing or enforcing or giving effect to a decree or a judgment passed by a Court of competent authority.
In simpler terms, “execution” means the process of enforcing or giving effect to ant decree/judgment of a Court of competent authority, by compelling the judgment-debtor to carry out such mandate of the decree or order, and enable the decree-holder to recover or exercise the object granted to him by such decree or judgment.
The legal provisions governing the execution of a decree have been laid out in Section 36 to Section 74 of CPC, which comes under substantive law and Order 21 of the Code of Civil Procedure, 1908 which provides for procedural law.
“Resistance” in its literal sense refers to the refusal to accept or comply with something. In legal terms, a resistance may either be lawful or unlawful. In the case of self-defence, resistance can be said to be lawful as to deter oneself from any injury or harm.
In other instances where a person resists any person acting out of lawful authority or a court order enforcing to do something or omit from doing such thing, the resistance shall be considered unlawful.
Hence, “resistance to execution” also falls under the purview of an unlawful act, done by a person (judgement-debtor) against another (judgement-holder).
The legal provisions governing the resistance to execution of a decree have been laid out in Section 74 of CPC, as well as various rules of Order 21 of the Code of Civil Procedure, 1908.
Illustration:
‘A’ initiates a suit against ‘B’ for a sum of Rs 10,000 and consequently obtains a court order against him. Here ‘A’ is the decree-holder. ‘B’ is the judgment-debtor, and the amount of Rs 10,000 is the judgment-debt, also known the decretal amount.
Since the decree has been passed against ‘B’, he is legally bound to pay Rs 10,000 to ‘A’. Let us take a situation where, in spite of such decree been passed against him, ‘B’ refuses to pay the decretal amount to ‘A’, and A can recover the said amount from ‘B’ by enforcing the decree by means of a suitable judicial process.
The principle governing the execution of decree and/or orders, are dealt with under Sections 36 to 74 (substantive law) and Order 21 of the code (procedural law).
LEGAL PROVISONS
- Section 74 of Code of Civil Procedure 1908 “Resistance to execution”
“Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.”
- Rule 97 Order XXI of Code of Civil Procedure 1908 “Resistance or obstruction to possession of immovable property”
“(1)Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate the upon the application in accordance with the provisions herein contained.”
- Part Q of Volume I Chapter 12: Execution of Decrees under Court Rules[1] “Resistance to Execution”.
“1. Resistance by judgment-debtor or by some person on his behalf or at his instigation—If the holder of a decree for the possession of immoveable property, or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person, and the decree-holder complains of such resistance or obstructions, Order XXI, Rules 97 to 99, prescribed the procedure to be followed.
According to Order XXI, Rules 98, Civil Procedure Code, as amended by the Punjab High Court, a Court can take action not only when the obstruction was occasioned by the judgment-debtor himself or by some person at his instigation but also when it was caused by anyone “on his behalf.” It has also been provided that the detention ordered in this rule shall be at public expense. The provision as to the limitation is contained in Article 129 of the Limitation Act, 1963 which provides a period of thirty days from the date resistance or obstruction.
2. Resistance by others—Order XXI, Rule 99 (is substituted for the old Rule 100), and it provides for cases where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by purchaser thereof, he may make an application to the Court complaining of such dispossession, and the Court shall proceed to adjudicate upon the application.”
- Article 129 under The Schedule of Limitation Act, 1963
“Description of Suit: For possession after removing resistance or obstruction to delivery of possession of immovable property decreed or sold in execution of a decree.
Limitation Period: Thirty days.
Time from which period begins to run: The date of resistance or obstruction.”
LANDMARK CASES:
- Supreme Court in Ghanshyam Das v. Anant Kumar Sinha[2]
Held:
Dealing with provisions of the penal code relating to execution of any decree or an order, the apex Court stated that, “so far as to the question of executability of a judgement or a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all such aspects. The numerous rules of Order 21 of the Civil Procedural Code consider various situations by providing effective remedies not only to judgment-debtors and decree-holders, but also to claimant objectors, as the case may be. In exceptional cases, where the provisions of the code are rendered incapable of giving relief to an aggrieved person or a party inadequate measures and appropriate time, the answer may be a regular suit in an appropriate civil Court.”
- The Supreme Court in the case of Silver line Forum Pvt Ltd. v. Rajiv Trust & Another[3]
Held:
The Apex Court made the observations that “Resistance or obstruction made even by a third party to the execution of decree can be considered under Order 21 Rule 97. Rules 97 to 106 are substantial under the head “resistance to delivery of possession to decree-holder or purchaser.”
These provisions are intended to deal with a variety of resistance or obstructions offered by any person or party. Rule 97 specifically provides that when the decree-holder for possession of the immovable property is resisted or obstructed by “any person/party” in obtaining possession of the said property in question, such decree-holder must make an application containing such complaints of the resistance or obstruction faced.
Sub-rule (2) under the code makes it incumbent upon such complaint in accordance with the procedure laid down. It was also noted that all question arising between the parties/persons to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the executing Court if such questions are relevant to the adjudication of the said application.
- The Hon’ble Apex Court in the case of Brahmdeo Choudhary V/s Rishikesh Prasad Jaiswal[4]
Held:
The Court held that it cannot be said that the only remedy available to any stranger to the decree or order for possession, who has resisted or obstructed its execution, to have his/her claim adjudicated is the one under Rule 99 of Order 21 after he/she has lost possession to the decree-holder, and that he has no locus standi to get adjudication of his/her claim prior to the actual delivery of possession to the decree-holder in the execution of the proceeding.
CONCLUSION
It clearly appears from the above findings, that “execution” means implementing, or enforcing, or giving effect to any order or a judgment laid down by a court of competent authority.
The provisions contained in Sections 36 to 74, and Order 21 of Code of Civil Procedure, 1908 cover different types of situation and provide effective remedies to the judgment-debtors, claimant-objectors and any other third parties, apart from the decree-holder himself.
Various modes of execution of a decree are also provided by the Code, and special emphasis on “Resistance to Execution” in this study, to understand the legality and implications of such provision on the interplay between a judgement-debtor and a judgement-holder.
- CourtRuleFile_ ↑
- (1991) 4 SCC 379: AIR 1991 Sc 2251 ↑
- AIR 1998 SC 1754 ↑
- AIR 1997 SC 856 ↑