This article is written by Karan Sharma, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com.
Indian courts currently have 1,05,04,442 civil cases out of which 15,01,818 are execution petitions. As we understand that a suit has various stages like filing a plaint/ written statement, presenting evidence, etc., the final stage of a suit is a judgment and a decree by the Hon’ble Court.
The “execution petition” is presented post the judgment stage of the Hon’ble Court. Before explaining the concept of execution petition, we need to understand who files such kind of petition. When a case is filed and is on its original initial stage, it is filed by a plaintiff, a person who is aggrieved and the other person is the defendant, who is accused of causing such grievance. When a suit is being disposed of with the judgment, the party in whose favour the judgment and decree are announced is called the “Decree Holder” and the party on which the obligation of the decree is imposed is known as “Judgment Debtor”.
To explain it in the language of Code of Civil Procedure, 1908,
- Section 2(3): Decree Holder means any person in whose favour a decree has been passed or an order capable of execution has been made.
- Section 2(10): Judgment Debtor means any person against whom a decree has been passed or an order capable of execution has been made.
Why is an execution petition filed?
The Code of Civil Procedure, 1908 under Section 2, provides definitions of various terms but the word “execution” cannot be noticed anywhere under the definitions section of the code, so, here we can use the external aid of interpretation and refer to the mainstream meaning of the term “execution”. According to the Oxford Learner’s Dictionary, the term execution means the act of following the instructions in a legal document. Now, the legal document that is to be executed is the decree which is the adjudication that is done to dispose of the suit. So, as mentioned above, when a Judgment Debtor is assigned such actionable decree and he does not perform the action, the Decree Holder has the right to file an execution petition against the Judgment Debtor to compel him for the performance of his duty.
Illustration: A files a plaint before the court against B for mesne profits of a rented property, and the court adjudicates the matter by deciding that B is liable to pay Rupees 1,00,000(Rupees One Lakh) to A. B does not comply with the decision of the court and hence does not pay a single penny to A. As explained above, in this scenario, A is Decree Holder and B is the Judgment Debtor so, A (Decree Holder) has the right to file an execution petition before the same court, asking the court to pass such order that compels B (Judgment Debtor) to perform his actionable duty mentioned in the decree (to pay Rupees 1,00,000) in regard to A.
What does the Code of Civil Procedure say about the execution petition?
The Code of Civil Procedure, 1908 has dedicated 38 Sections and 106 Rules in Order XXI for the execution of a decree. To understand the scope of the execution petition we should shed light on some important provisions of the code.
Which court can execute the execution petition?
Section 38 of the code explains that primarily, the court which passed the decree can execute the decree after receiving the execution petition but it can also be executed by the court to which the decree is sent for execution.
Shall the execution petition be presented orally or shall it be written?
The Order XXI of the code tells about the requirements, payments application and etc. in regard to execution petitions.
Order XXI Rule 11(1) tells that when there is a decree for payment of money, the court may, on the oral request of the Decree Holder while passing the decree, may order an immediate execution of the decree. And, Order XXI Rule 11(2) says that an execution petition of the decree shall be in writing, except for the case in Sub-rule 1, in a tabular form with all the information mentioned in Sub-rule 2.
Can the court put a stay on execution of decree?
Yes, under Order XXI Rule 26, the court can put a stay on the execution of the decree for a rotational period of time if there is a reasonable cause and the court deems fit to give the Judgment Debtor reasonable time to show the reasonable cause.
Can an execution petition be filed without a certified copy of the decree?
Even though the code in Order XXI Rule 11(3)explicitly uses the word “certified decree”, we can answer this question by analysing the following judgment given in Sir Sobha Singh and Sons Pvt. Ltd. vs. Shashi Mohan Kapur.
Analysis: Sir Sobha Singh and Sons Pvt. Ltd. vs. Shashi Mohan Kapur
Brief facts of the case
The suit was filed by Sobha Singh and Sons Pvt. Ltd. (Herein “appellant”) against Shashi Mohan Kapur (Herein “respondent”) for the vacancy of property and mesne profits. The appellant served two notices dated 21.12.2004 and 16.01.2009 respectively. The respondent failed to evacuate the property resulting in a civil suit for the vacation of property and mesne profits against the respondent by the appellant. The respondent marked his attendance as present in court, did not contest the suit and was ready to compromise and thus, the Hon’ble Court passed a consent order but no formal decree was drawn. Subsequent to the order passed by the court, the respondent filed applications in the court for an extension of the time limit to vacate the suit property.
The respondent still did not vacate the suit property culminating in the filing of an execution petition by the appellant and the executing court deciding against the respondent and additionally put the cost of Rupees 5,00,000 (Rupees Five Lakh) on the respondent. The respondent then filed an appeal in the Delhi High Court against the order passed by the trial/executing court and challenged the maintainability of the execution petition filed by the appellant in the Trial Court. Delhi High Court decided the matter in the favour of the respondent and held that since the Trial Court did not draw up the formal decree after passing the consent order, the execution petition filed by the appellant is not maintainable. The High Court gave the option to the appellant to practice their right under Section 152 of the Code and ask the Trial Court to draw up a decree. The appellant appealed against the judgment given by the Delhi High Court in the Supreme Court.
After the above-mentioned facts and circumstances and when an appeal was filed before the Hon’ble Supreme Court, the main issue that arose was, is an execution petition not maintainable if a certified decree is not presented in the court?
What was held by the Hon’ble Supreme Court?
The Apex Court recognized the rights of the parties and held the following:
About the execution petition
The Apex Court held that the respondent was right initially according to the various provisions of the code i.e., Order XXI Rule 11(3) and Order XXIII Rule 3 where it is suggested that a certified decree may be filed for the execution and a decree shall be passed by the court while disposing off the matter, nonetheless, the Supreme court also acknowledged the fact that the respondent is using such objections with mala – fide intentions, that is avoidance of performance promised in the consent order. Therefore, even if the provisions ask for a certified decree, the code gives a power of discretion to the executing court to receive a certified decree and hence, such execution can be maintainable even without a certified decree.
About High Court’s rejection against the judgment by trial court
The Apex Court has held that the High Court was right in deciding that the execution petition was not maintainable as the High Court merely followed what the Code of Civil Procedure said but, the High Court was unsuccessful in judging the matter on its merit, hence, the final decision of the High Court was rejected.
About the High Court’s advice to draw up a decree
The Supreme Court held that the High Court was right in suggesting the Appellant to ask the Trial Court to draw up a decree but the provision which was added as aid was wrong. Section 152 of the Code of Civil Procedure deals with amendments of the decrees that contain any errors. The relevant provision regarding the drawing up of the decree from the Trial Court shall be Order XX Rule 6A. The Supreme Court said that the Decree Holder can file an application under Order XX Rule 6A and ask the court to draw up a decree.
Conclusion by Supreme Court
The Supreme Court in the conclusion held that the appeal by the appellant is allowed, all the orders passed by the High Court were set aside and the executing court’s decision was altered and the cost of Rupees 5,00,000 (Rupees Five Lakhs) that was imposed on the Respondent was brought down to Rupees 50,000 (Rupees Fifty Thousand). The court has held that an Execution Petition or an Appeal can be filed without submitting a certified copy in the court under Order XX Rule 6A.
At the outset, I would like to summarize by saying that the decision of the Supreme Court in Sir Sobha Singh and Sons Pvt. Ltd. vs. Shashi Mohan Kapur, is a noble piece of work as such kind of judgment acts as an accessory to provide justice to the aggrieved who have generally declined justice on the basis of technical errors. A lot of Decree Holders, despite having a judicial victory on their side, are inaccessible to get what they deserve. Through this judgment, the Apex Court has made it clear that you should not be denied justice on a mere technicality where the discretion of the court is present.
The Supreme Court has a lot of time, within the lawful boundaries, has given various unorthodox orders, decisions and judgments which result in providing fair and square justice to both the parties. The Supreme Court, in this case, acknowledged the objections of the Respondent which were present well within the parameters of the code, but, the court did not fail to understand the dissimulating intentions of the respondent that were, to present the objections only to not fulfil the promise of performance made in the consent order.
The Supreme Court also agreed with the decision of the Delhi High Court that the execution petition was not maintainable due to the provisions of the code but the Apex Court, in the end, had to put aside the decision of the High Court as the High Court failed to interpret and pursue that why did the Executing Court deem the execution petition maintainable. The Supreme Court perused the facts and the decision of the Executing Court and upheld the execution by altering the cost from Rupees 5,00,000 (Rupees Five Lakhs) to Rupees 50,000 (Rupees Fifty Thousand).
In conclusion, I would say that a mere technicality shall not obstruct the course of justice. The Code of Civil Procedure, 1908 in its Order XXI Rule 11(3) already states that “The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.” Through the basic rules of “Interpretation of Statutes”, the word “may” does not impose an obligatory act on a party or on the court. The word “may” provide the court with a discretionary power on how to proceed further in the suit. So, the Apex Court was very much right in pointing out and finally deciding that filing of an execution petition or an appeal to secure justice without any obstruction, it shall not be mandatory to attach a certified decree while filing the above-mentioned petition and appeal.
- https://www.oxfordlearnersdictionaries.com/definition/american_english/execution#:~:text=1%5Buncountable%2C%20countable%5D%20the,execution%20by%20 hanging%20for%20murder.&text=2%5Buncountable%5D%20(formal),the%20exception%20of%20his%20 duty
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