This article has been written by Karan Sharma, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. It has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
Introduction
Execution of a Decree is a concept which is as old as the CPC itself. In general sense, the word “execution” signifies the carrying out of a plan, order, or course of action. But, in legal language, Execution means the process of enforcing a legal judgment (as against a debtor). But who is a debtor? What is the significance of this concept? How is it decided that the execution will be processed? We will talk about all the things related to execution in the following article.
Where does the need for “Execution of Decree” arise from?
As a suit is instituted in the court, over a period of time and with due procedures, the case is decided in favour of the either party who are involved in the suit. When a judge announces the judgment, the directing part of the judgment is a decree. For example; If A files a suit against B for recover of money and after over a period of time and with due procedures, the case is decided in favour of A (Decree Holder) and against B (Judgment Debtor), and in the judgment, it is directed that B has to pay the disputed amount to A, then the directing part is the decree as it assigns an obligation of performance on B.
Now, even after a reasonable time, when B does not perform his obligation that has been imposed by the Hon’ble Court, then A has the right to enforce the Judgment Debtor to perform his obligation through legal measures. That particular legal measure is called Execution of Decree and this measure is ordinarily initiated by filing an Execution Petition in the court where the decree was passed.
How can you apply for execution of a decree?
According to the Code of Civil Procedure, 1908, you can apply for Execution of Decree either orally or through a written application.
Order XXI Rule 11 of the Code of Civil Procedure, 1908 talks about the application for executing a decree orally. This method is used by the parties simultaneously when the judge announces the judgment in the court.
Order XXI Rule 12 of the Code of Civil Procedure, 1908 talks about the Executing a decree by the way of a written application along with a certified copy of the decree. The rule also explains how a written execution petition shall be drafted. The Execution Petition asks various questions like the number of the suit; the names of the parties; the date of the decree; whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results; whether any appeal has been preferred from the decree; the amount of the costs (if any) awarded; the name of the person against whom execution of the decree is sought; and etc.
Procedure followed by the court on receiving an application for execution of a decree
When an Execution Petition is filed in the Court, the court does the following:
- First step of the court is to check if the Execution Petition is filed within the time period of limitation and confirm that the presented Execution Petition is not barred by the law of the limitation. In a recent judgment, V. Nagarajan vs SKS Ispat and Power Ltd. the Supreme Court said that, even though an application filed along with the execution of the decree that condones the delay in filing of such petition, the applying date of the certified copy shall still be within the limitation time period.
In simple words, if you are applying for execution of a decree and the petition is barred by the limitation time period, then the said petition shall still be treated as within the time period of limitation if the request for certified copy of the Decree is put in within the time period of limitation.
- The next thing that the court needs to do is to list the Execution matter for hearing, issue notice to the respondent and listen to the submissions made by the petitioner and the respondent take the appropriate decision.
- In certain matters, The Hon’ble Court is not bound by the law to issue show cause notice to the respondent. This particular aspect is dealt under Order XXI Rule 22 of the Code of Civil Procedure, 1908. The afore – mentioned provision also says that in the following cases: (1.) if the decree that is petitioned to be executed was passed 2 years before the filing date or; (2.) the decree is being executed against the legal representative of the party and; (3.) if the party against whom the decree is executed is declared insolvent; the issuance of notice is must.
- If the party that has been issued a notice does not appear for the listed matter, then the Court is well within its authority to pass an adverse order against such party and issue a favourable decision in the favour of the party that was present in the court.
- If the party which was issued a show cause notice is successful in appearing before the court on the given date, that party has the right to object to the execution of the decree which has been petitioned. The court, then carefully should examine the objections and make such an order the court thinks is fit.
Where in an execution petition the judgment-debtor did not appear even after service of notice under Order XXI, rule 22, the Court passed an order under Order XXI, rule 23(1) directing to proceed execution by attachment of the properties of the judgment-debtor, the order became final and amounted to a decree. No appeal was filed against the said order. Therefore, it was not open to the judgment-debtor to raise an objection as to limitation at a later stage; P. Sainath Reddy v. G. Narayana Reddy, AIR 1982 AP 247.
3.6 After listening to both the parties, given that the need of issuing notice arose and both the parties were required to be present, and the petition was allowed, then the court directs the Judgment Debtor to perform the obligation that has been levied on him, hence issues the process of Execution of Decree.
3.7 The court then endorses an Official under whom Execution of the Decree will take place. The Official is then told the date for execution and the manner, that how the decree will be executed. If the Official fails to follow any instruction, then that Official is liable to give a written explanation to the Court stating the reasons for delay in execution or any other reason that amounted to inability to execute the decree.
3.8 The official then executes the Decree in the favour of the Decree Holder and hence the interest of the justice if served.
What happens if the Judgment Debtor is not obligated to the direction the court announced?
In the suits where the decree that has been passed is for the payment of money to the Decree — Holder, The Judgment Debtor has to fulfil his obligation and pay the money that he owes to the Decree – Holder. In few cases, the Judgment —Debtor, either does not pay the amount, or is for any other reason, unable to pay the amount that he has been directed to pay, then the Court has the power to attach and sell the immovable and movable properties of the Judgment – Debtor under the Order XXI Rule 40 – 46 of the Code of Civil Procedure, 1908.
Can the Hon’ble Court put a stay on the Execution of a Decree?
Above in this article, we have over and over repeated that, the courts take a long time in deciding the matters. The courts go through everything that is provided to them by both the parties. And, in the end the court, on the basis of the merits decides the case. When one party is announced as the Decree Holder, it is announced after multiple perusal of the facts, evidence and the statements.
Then, why should the need to stay on execution arise? The Order XXI Rule 26 of the Code of Civil Procedure, 1908 talks about the stay on the executing of a decree. The provision says that if the court finds any sufficient cause that supports the stay on the execution of the decree, then the Court, in its inherent powers, can put a stay on the execution of the decree.
Conclusion
In conclusion, I would like to wind-up by saying that Execution of a Decree isn’t a mere legal topic or an option to exercise, but it is actually an aid that helps in accessing justice. The Execution of a Decree is a concept that works where the earned justice fails. The Order XXI of the Code of Civil Procedure, 1908 works as a genuine aid in helping the Decree Holder to acquire justice and thus safeguards the rights and interest of the parties.
References
- Code of Civil Procedure, 1908 Bare Act: indiacode.nic.in
- Code of Civil Procedure, 1908 Bare Act: Universal Publications
- Writinglaw.com
- LiveLaw.com
- Aaptaxlaw.com
- Merriam Webster Dictionary
- https://www.writinglaw.com/order-21-rule-11-cpc/#:~:text=Oral%20application.,the%20 precincts%20of%20the%20Court
- https://www.aaptaxlaw.com/code-of-civil-procedure/order-xxi-code-of-civil-procedure-rule-41-42-43-44-45-46-47-attachment-of-property-order-xxi-of-cpc-1908-code-of-civil-procedure.html
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