EXECUTION

The term “execution” is not defined in the CPC. The term “execution” means implementing or
enforcing or giving effect to an order or a judgment passed by the court of justice. In simple
words “execution” means the process of enforcing or giving effect to the decree or judgment
of the court, by compelling the judgment-debtor to carry out the mandate of the decree or
order and enable the decree-holder to recover the thing granted to him by judgment.

Illustration:

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be
called the decree-holder, Y is the judgment-debtor, and the amount of Rs 20,000 is the
judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him.
Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by
execution through the judicial process. The principles governing the execution of a decree or
order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code which
provides for procedural law.

Execution proceedings under CrPC:

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of
the code relating to the execution of orders and decree and stated that the Code contains
elaborate provisions which deal with all questions regarding executability of a decree in all
aspects.

The Court further observed that numerous provisions of Order 21 take care of various
situations providing effective remedies to judgment-debtors, decree-holders and claimant
objectors. In the cases, where provisions are not capable of giving relief inadequate
measures and appropriate time, to an aggrieved party, then filing a regular suit in the civil
court is the solution.

The Court further explained that the judicial quality of the remedy under Civil Procedure
Code is considered to be superior as compared to other statutes therefore, the judges are
expected to do better as they are entrusted with the administration of justice.

Courts which can execute decrees:

Section 38 of the Code states that a decree can be executed either by the Court of the first
instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which passed
a decree” with the object of enabling a decree-holder to recover the fruits of the decree. The
courts which fall within the said expression are as follows:

● The court of the first instance;

● The court which actually passed the decree in case of appellate decrees;
 ● The court which has jurisdiction to try the suit at the time of execution, if the court of
first instance ceased to exist;
● The court which at the time of execution had jurisdiction to try the suit, if the court of
first instance has ceased to have jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to
execute a decree even in the case of any area being transferred from the jurisdiction of the
court of first instance to the jurisdiction of any other court. In such cases, the court to the
jurisdiction of which such area has been transferred will also have jurisdiction to execute the
decree, provided that the said court had jurisdiction to try the said suit when the application
for execution was made.

Transfer of decree for execution:

Section 39 provides that when a decree-holder makes an application to the court of the first
instance to send the decree for execution to another court, the court of first instance may do
the same if any of the following grounds exist:

● if the judgment-debtor carries on business, or resides or personally works for gain,

within the jurisdiction of such Court;
● if the property of judgment-debtor does not come under the jurisdiction of the Court of
the first instance but it comes under the local limits of the jurisdiction of such Court;
● if the decree directs delivery or sale of immovable property situated outside the
jurisdiction of the Court which passed the same;
● if the Court which had passed the decree considers that the decree should be
executed by another court, but it shall record the reasons in writing for doing the
same.

Section 39(2) states that the Court of the first instance may suo motu send it for execution to
any subordinate Court of competent jurisdiction.

The Section further states that if the execution of the decree is against a person or property
outside the territorial jurisdiction of the court passing the decree, then such Court has no
power to execute the decree.

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of
Section 39 are not mandatory because the court will have discretion in the matter which can
be exercised by it, judicially. The decree-holder would not have any vested or substantive
right to get the decree transferred to another court.

Execution of foreign decrees in India:

The Code lays down the procedure for execution of foreign judgments and decrees in India.
While enforcing a foreign judgment or decree in India it should be ensured that the judgment
or decree is a conclusive one, given on the merits of the case and by a court having
competent jurisdiction.

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As per
section 2(5) of CPC, a foreign court implies a court which is situated outside India and which
is not established or continued by the authority of the Central Government.

A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or

judgment of such court and which directs that a sum of money is payable. However, such
sum of money shall not be a sum payable in respect of taxes or other charges of a like
nature or in respect of any penalty or fine. It should not include an arbitral award, even if
such an award is enforceable as a decree or judgment.

Foreign judgment or decree needs to be conclusive:

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:

● When a court of competent jurisdiction has not pronounced it;

● When it has not been pronounced on the merits of the case;
● 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;
● When the proceedings carried out while obtaining the judgment are opposed to
natural justice;
● When such judgment has been obtained by fraud;
● When it sustains a claim that had been based on a breach of any law in force in
India.

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

Mode of enforcement of a foreign judgment or decree:

Two ways in which a decree or foreign judgment can be enforced in India are as follows:

● Where the decree or judgment has been given by a court in a reciprocating territory;
● Where decree or judgment has been given by a court in a non-reciprocating territory.

Execution of foreign decree of a reciprocating territory in India:

According to Section 44A of the CPC, a decree of any superior court of a reciprocating
territory shall be executed in India as that has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside India which the Central
Government has declared to be a reciprocating territory, by notification in the Official
Gazette, and “superior courts“, with reference to any reciprocating territory, means such
courts that would be specified in the said notification.
Therefore, a judgment which has been pronounced by a court of a reciprocating territory can
be enforced in India as an Indian decree by filing an execution application. A certified copy of
a decree of any superior court of a reciprocating territory should be filed in a District Court,
once this is done, the decree shall be executed as if it had been passed by the District Court
of India and the provisions governing execution which are laid down in Order 21 of the CPC
will be applicable to the decree.

While filing the execution application the original certified copy of the decree shall be filed
along with a certificate from the superior court stating the extent to which the decree has
been satisfied or adjusted.

Execution in case of decrees from non-reciprocating territories:

In the cases where a judgment or decree has not been pronounced by a court of a
reciprocating territory, it can be executed only when a fresh suit on that foreign judgment is
filed in a court of India which has competent jurisdiction to entertain the same.

The Bombay High Court, in Marine Geotechnics LLC v. Coastal Marine Construction &
Engineering Ltd., observed that when a decree has been pronounced by a court of a
non-reciprocating foreign territory, it can not be executed unless a fresh suit has been filed
by the decree-holder on that foreign decree or on the original cause of action, or both. The
suit must be filed within a period of three years from the date of the judgment or decree. The
person seeking execution shall show that the foreign decree passes the tests of Section 13.

The court further observed that Section 13 of the Code provides substantive law and Section
44A of the Code is an enabling provision and it enables a decree-holder to put a decree
obtained from a court of a reciprocating territory into execution. Section 13 clearly expresses
the principles of private international law, that a court will not enforce a foreign judgment of a
competent court.

Execution of Indian decrees in a foreign territory:

Section 45 of the Code is related to the execution of decrees outside the territory of India. It
states that a Court has the power to send a decree for execution to a Court outside India
which has been established by the Central Government’s authority. It should be ensured that
the State has, by notification in the Official Gazette, declared the said section can apply to
such Court. A plain reading of the aforesaid provision yields the following features:

● The decree which has to be executed should be of an Indian Court and it should be
for execution in a foreign territory.
● The Central Government should have established the transferee court in such foreign
territory.
● The State Government should have declared by notification in the Official Gazette
that this section will apply to the said foreign Court.
● The provision, therefore, prescribes the prerequisite conditions for the execution of
an Indian decree outside the country. Therefore, in the absence of either of the
aforesaid conditions in Section 45, an Indian Court has no jurisdiction to send its
decree for execution to a Court not situated in India.
Execution of decree at more than one place:

There is no provision in the Code which prevents a decree-holder from executing a decree
simultaneously at more than one place against the property of the judgment-debtor.

In Prem Lata Agarwal v. Lakshman Prasad Gupta & Ors, Supreme Court observed that
“simultaneous execution proceeding in more than one place is possible but the power shall
be used in a restricted manner, in exceptional cases by imposing proper terms so that the
judgment debtors do not face any hardship because of several executions are being allowed
to be proceeded with at the same time.” Therefore, simultaneous execution proceedings are
not without jurisdiction or illegal.

Moreover, as per Section 39 of the Code, simultaneous execution of a decree is permissive

in nature as it provides for execution of a decree either by the Court of first instance or by the
Court to which it is sent for execution.

Procedure in execution:

Section 51 to 54 of the Code talks about the procedure in execution.

Section 51
The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may execute
decree as per the mode of implementation prayed by the decree-holder or as the court
deems fit.

Mode of executing decree:

1. By delivery of any property (movable or immovable) specifically decreed.

2. By sale of the property with or without the attachment of the property. If the property
is situated within the jurisdiction of the court then it has the power to attach the
property.
3. By arrest and detention. However, this mode should not be exercised without giving a
reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as
to why he should not be imprisoned.
4. Execution by appointing a receiver
5. If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used
in the execution of a decree then clause(e) comes into play.

Section 52
This section deals with the cases where the decree is passed against the legal
representative of the judgment-debtor (deceased). So long as the property of the deceased
remains in the hands of a legal representative, a decree can be executed against the
property, if it is for the payment of money out of the property of the deceased and if the
decree has been passed against the party as the legal representative of the deceased
person.
In a situation where the property which is in the possession of the judgement-debtor came in
the hands of the legal representative and it has not been duly applied by him, the court will
enforce the execution of the decree against him as if the decree was to the extent passed
against him personally.

Section 53
The Section states that when a property is liable for payment of a debt of a deceased
ancestor and it is in the hands of a son and descendant, then the property will be deemed to
be of the deceased which has as his legal representative come into the hands of the son or
other descendants.

Section 54
When a decree has been passed for partition or for the separate possession of a share of an
undivided estate for the payment of revenue to the government, this section comes into play.
The partition of the estate or share needs to be made by the collector, but if the collector
denies making the partition of the revenue paying property, then the civil court can do so. To
attract the provisions of this section, the plaintiff asking for the division of government
revenue is not deemed as an essential condition.

Powers of the transferor court:

Once a court which has passed a decree and transferred it to another court of competent
jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute the
decree. Then, only the transferee court can entertain an application for execution.

Powers of the transferee court:

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has been
sent for execution to another district, it may be executed by either the district court to which it
was sent or by a subordinate court which has competent jurisdiction, to which the district
court may refer it.

Section 42 provides for the powers of the transferee court and states that the Court to which
a decree has been sent for execution shall have the same powers in execution of such
decree as if it had been passed by itself.

The Court has the power to punish the persons who cause obstructions in the execution of
the decree and the power shall be exercised by the court as if the decree has been passed
by it. The main object of giving such powers to the transferee court is to ensure that the
judgment-debtor pays the money or gives such other thing to the decree-holder as would be
directed by the decree.

The Court will have the following powers, namely:—

● To send the decree for execution to another Court under section 39.
● To enforce execution of a decree against the legal representative of the deceased
judgment-debtor under section 50.
 ● To order attachment of a decree.
● However, the court to which a decree is sent for execution will not have the power to
order execution at the instance of the transferee of the decree and the power to grant
leave to execute a decree passed against a firm against any person, other than a
person referred to in Rule 50 of Order XXI.

Powers of executing court:

The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may execute
decree as per the mode of implementation prayed by the decree-holder or as the court
deems fit.

It clearly appears from the above discussion, that execution means implementing or
enforcing or giving effect to an order or a judgment passed by the court of justice. The
provisions contained in Order 21 covers different types of situation and provide effective
remedies to the judgment-debtors, claimant objectors and third parties apart from the
decree-holder.

The Code takes care of the rights of judgment-debtors too. Various modes of execution of a
decree are also provided by the Code which includes arrest, detention of the
judgment-debtor, delivery of possession, attachment of the property, by sale, partition, the
appointment of receiver and payment of money etc. Thus, the provisions are rendered
effective or capable of giving relief to an aggrieved party.