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Introduction

Execution is the last stage of any civil litigation. There are three stages in litigation: (i)
Institution of litigation, (ii) Adjudication of litigation, (iii) Implementation of litigation.

Implementation of litigation is also known as execution. Where the civil litigation has been
instituted with the presentment of the plaint, a decree will come into existence. The decree means
operation or conclusiveness of judgment. Execution of a decree will be done only when parties
have filed an application in that regard. A decree or order will be executed by the court as
facilitative and not an obligation. If a party is not approaching the court, then the court has no
obligation to implement it suo motu. A decree will be executed by the court which has passed
the judgment. In exceptional circumstances, the judgment will be implemented by another court
which is having competency in that regard.

Execution is the medium by which a decree-holder compels the judgment-debtor to carry out the
mandate of the decree or order as the case may be. It enables the decree-holder to recover the
fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder
gets money or other thing awarded to him by judgment, decree or order.1

Execution of Decree

The Law relating to execution of decrees is to be found in Sections 36 to 74 and Order XXI of
the Code of Civil Procedure 1908. The term “execution” has not been defined in the code. The
expression “execution” means enforcement or implementation or giving an effect to the order or
judgment passed by the court of justice. 2 Simply “execution” means the process for enforcing or
giving effect to the judgment of the court.3 Execution is the enforcement of decrees and orders by
the process of the court, so as to enable the decree-holder to realize the fruits of the decree. The
execution is complete when the judgment-creditor or decree-holder gets money or other thing
awarded to him by the judgment, decree or order.

All proceedings in execution commence with the filing of an application for execution. Such
application should be made to the Court who passed the decree or where the decree has been
transferred to another Court, to that Court. Once an application for Execution of decree is
received by the Court, it will examine whether the application complies with the requirements of
Rules (11 to 14). If they complied with, the Court must admit and register the application.

1
Takwani, C.K., “Civil Procedure with Limitation Act, 1963.” 8 th Edition. Eastern Book Company. Pg. 615.
2
Halsbury’s Laws of England (4thedn.) Vol. 17 at pg.232
3
A.K Ghose v. R.K Banerjee, 79 CWN 76.
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Court Competent to Execute a Decree

Section 37 defines the expression ‘Court which passed a decree’. The following courts fall
within the said expression:

a) The court of first instance which actually passed the decree;

b) The court of first instance in case of appellate decrees;
c) Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution;
d) Where the court of first instance has ceased to have jurisdiction to execute the decree, the
court which at the time of execution would have had jurisdiction to try the suit.

Section 38 of the code specifics that a decree may be executed either by the Court who passed it
or by the Court to which it is sent for execution while Sections 39 to 45 provide for the transfer
for execution of a decree by the Court which passed the decree to another Court, lay down
conditions for such transfer and also deal with powers of executing Court.

Who may file an application for Execution

All proceeding in Execution commence with the filing of an application for Execution.
Following persons may file an application for Execution:

1. Decree-holder4
2. Legal representative of the decree-holder, if the decree-holder is dead.5
3. Representative of the decree-holder.6
4. Any person claiming under the decree-holder.7
5. Transferee of decree-holder, if the following conditions are satisfied:8
a) The decree must have been transferred by an assignment in writing or by operation of
law.
b) The application for execution must have been made to the court which passed the
decree.
c) Notice and opportunity of hearing must have been given to the transferor and the
judgment-debtor in case of assignment by transfer.

4
Rule 10 Order XXI of the CPC 1908.
5
Section 146 of the CPC 1908.
6
Section 146 of the CPC 1908.
7
Section 146 of the CPC 1908.
8
Section 49 and Rule 16 Order XXI of the CPC 1908.
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6. One or more of the joint decree-holders, provided the following conditions are fulfilled.9
a) The decree should not have imposed any condition to the contrary.
b) The application must have been made for the execution of whole decree.
c) The application must have been made for the benefit of all joint holders.

7. Any person having special interest.

Form and Content of Application

An Application for execution must be in writing except when an oral application is made under
Order XXI, Rule 11(1). Upon an application for execution being filed, the Court shall scrutinize
it to see that all the requirements of Order XXI, Rules 11(2), 12, 13, and 14 of the Code of
Civil Procedure, 1908, have been duly complied with. The application should state distinctly the
mode in which the assistance of the Court is sought and the proceedings should be confined to
that mode, unless any amendment has been allowed. When an application is for the attachment
of immovable property, special care shall be taken that the specification and verification required
by Order XXI, Rule 13, of the Code have been furnished. The Court may also require the
applicant to produce the authenticated extract mentioned in Order XXI, Rule, 14 when the
property is land registered in the Collector’s office.

Limitation Period of Execution

The period of limitation for the execution of a decree (other than a decree granting a mandatory
injunction) is twelve years from the date of the decree.10

The period of limitation for the execution of a decree for mandatory injunction is three years
from the date of the decree.11

9
Rule 15 Order XXI of the CPC 1908.
10
Article 136 of Limitation Act 1963.
11
Article 133 of Limitation Act 1963.
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Period of Pendency

Execution Proceedings will, for statistical purposes, be considered as only pending for the period
during which something is being done towards execution. If the decree-holder has realized his
installment, or obtained the satisfaction asked for in the application for execution, the case
should be struck off, even though a portion of the decree still remains unexecuted. Similarly, the
case should be dismissed if the applicant for execution does not take necessary steps to prosecute
his application. The Court should record its reasons for the action taken in such cases.

Stay of Execution

Provisions for stay of execution of a decree are made in Rule 26 of Order XXI. This rule lays
down that the executing court shall, on sufficient cause being shown and on the judgment-debtor
furnishing security or fulfilling such conditions, as may be imposed on him, stay of execution of
a decree for a reasonable time to enable the judgment-debtor to apply to the court which has
passed the decree or to the appellate court for an order to stay execution.

The power to stay execution of a decree by a transferee court is not similar to the power of the
court which passes a decree. Whereas the transferor court can grant absolute stay, the transferee
court can stay execution for a reasonable time to enable the judgment-debtor to apply to the
transferor court or to the appellate court to grant stay against the execution. Such order can be
made on the application of the judgment-debtor. A transferee court cannot invoke the inherent
powers to grant stay.12

The execution can be stayed by the Court of first instance i.e. the original court which passed the
decree in the first place. It has got absolute power to stay the execution of the order or the decree.
The provisions regarding such stay are enlisted in Order XLI Rule 5 of the Civil Procedure
Code, 1908. Stay of execution is granted if the party can prove substantial loss if such order is
not made. The stay can also be granted if an appeal has been filed against the original decree, in
the appellate court of competent jurisdiction. Though the transferee court is bound by an order
made by the court which passed the decree or by an appellate court in relation to execution of
such decree13, there are also provisions for grant of stay by the transferee court in cases where the
execution proceedings have been transferred to another court. Many times situations such arises
that the parties reside in different places and the execution has to be carried out at some place
other than the place of the court passing the decree. In such cases, the original court passing the
decree may transfer such cases for execution to the required courts where the decree may be
executed. The Transferee Court in such situations has also got certain powers for stay of
execution proceedings, although such power not being absolute, but a qualified one.

12
Shaukat Hussain v. Bhuneshwari Devi, (1972) 2 SCC 731: AIR 1973 SC 528
13
Rule 28 Order XXI of CPC 1908.
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Powers of Executing Court

1. Modes of Execution: The various modes in which execution of a decree may be ordered
are as follows:
a) By delivery of any property specifically decreed;
b) By attachment and sale, or by sale, without attachment of any property;
c) By arrest and detention of the judgment-debtor;
d) By appointment of a Receiver; or
e) In such other manner as the nature of the relief may require.14

2. Power of executing Court to question the validity of the decree : An executing Court
cannot go behind the decree or question the jurisdiction of the Court which passed it. Its
function is to execute the decree as it stands. It may, however, refer to the judgment to
ascertain its meaning when the terms of the decree are ambiguous.

3. Power of executing Court to decide question arising in execution : Section 47 of the

Code of Civil Procedure confer wide powers on the executing Court to decide all
question arising between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree.
Such questions must be decided by the executing Court and no separate suit it
maintainable for the purpose.

4. Execution of decree pending appeal: The filing of an appeal from a decree is, by itself,
no bar to its execution, and execution may proceed unless it is stayed by an order of the
Appellate Court or the Court which passed the decree (Order XLI, Rules 5 and 6). It
should be noted, however, that when an order is made for the sale of immovable property
during the tendency of the appeal, and the judgment-debtor applies for stay of the sale,
the Court ordering the sale is bound to stay it, though it can impose much terms as to
security or otherwise as it thinks fit [Order XLI, Rule 6(2)].

5. Security when execution is stayed: When a stay of execution is granted under Order
XXI, Rule 26, Civil Procedure Code, the rules, as amended by the Punjab High Court,
makes it compulsory for the Court to require security or impose such conditions as it
thinks fit unless sufficient cause is shown to the contrary.

6. Decree against Government: Where the decree is against the Government, or the State
of public officer in his official capacity, execution shall not be issued on such decree for a
period of three months and limitation for execution of such decree commences only after
the expiry of three months from the date of decree.
14
Section 51 of CPC 1908.
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Modes of Executing Decrees

There are various ways to execute a decree. The court has to follow the appropriate rules
provided in Order XXI while executing a decree. According to Order XXI Rule 10, an
application has to be filed in the court by the decree-holder if he desires to execute it.

Delivery of property
We can classify delivery of property in two ways. They are a) Delivery of movable property, b)
Delivery of immovable property.

When the decree is for delivery of any specific movable property (Section 51(a), Order XXI
Rule 31), it may executed:

 By the seizure if practicable, of movable or share and 

 By the delivery thereof to the party to whom it has been adjudged, or as to such person as
he appoints to receive delivery on his behalf, or 
 By the detention in the Civil Prison of the Judgment Debtor, or 
 By the Attachment of this property, or 
 By both (Prison & Attachment of Property)15

Again, for the application of this rule, the property must be in the possession of the judgment-
debtor. Where the property is in the possession of a third party, the provisions of this rule do not
apply and the property cannot be attached.16

When the decree is for delivery of any specific immovable property (Order XXI Rules 35-36), 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 17. After such attachment the first step is issuing
proclamation of sale.18 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.
15
Rule 31 Order XXI of CPC 1908.
16
Pudmanund Singh v. Chundi Dat, (1896) I CWN 170.
17
Rule 35 Order XXI of CPC 1908.
18
Rule 36 Order XXI of CPC 1908.
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 Such other particulars which court considers material.

Service of notice is a mandatory requirement and non-compliance will vitiate the entire
proceedings.

Where the person in possession and bound by the decree does not afford free access, the officers
of the court may, after giving reasonable warning and facility to a pardanashin lady to withdraw,
break open into the building and put the decree-holder in possession thereof.19

Attachment and sale of property

Section 51(b) empowers the court to order execution of a decree by attaching and sale or by sale
without attachment of any property. The following properties are liable to attachment and sale in
execution of a decree under Section 60, namely:

1. Lands
2. Houses or other buildings
3. Goods
4. Money
5. Banknotes
6. Cheques
7. Bills of exchange
8. Hundis
9. Promissory notes
10. Government securities
11. Bonds or other securities for money
12. Debts
13. Shares in corporation and
14. All other saleable property movable or immovable.

The words ‘attachment’ and ‘sale’ in Section 51(b) are to be read disjunctively. Hence, the
attachment of the property is not a condition precedent. Sale of property without attachment is
not void or without jurisdiction and does not vitiate such sale. It is merely an irregularity.20

Order XXI Rule 3 provides that if the immovable property is located in more than the local
limits of the jurisdiction of one or more courts, then one of the courts can sell and attach the
property. According to Order XXI Rule 13, there has to be certain information in the
application for attachment of the immovable property.

19
B. Gangadhar v B.G. Rajalingam, (1995) 5 SCC 238
20
Rahim Bux Haji & Sons v. Firm Samiullah & Sons, AIR 1963 All 320.
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Arrest and Detention

Section 55 of the Code of Civil Procedure deals with various rules regarding the arrest and
detention. According to this section:

 The judgment-debtor can be arrested at any time of the day and can be brought before the
Court.
 The detention of the judgment-debtor should be in civil prison.
 No officer can enter the dwelling house after sunset and before sunrise for making an
arrest.
 The officer should release the judgment-debtor once the amount is paid.

Order XXI Rule 39 is an important provision that deals with the subsistence allowance. The
decree-holder has to pay a certain sum that is fixed by the Court for the maintenance of the
judgment-debtor in the civil prison from the time of his arrest until he can be brought before the
Court. No judgment-debtor can be arrested if the decree-holder has not paid the subsistence
allowance.

Section 58 deal with the rules regarding the detention and release. According to this section, the
judgment-debtor can be detained in the civil prison:

 For a period not exceeding three months, when the decree amount is more than a
thousand rupees;
 For a period not exceeding six weeks, when the decree amount is for the payment of a
sum of money exceeding five hundred rupees, but not exceeding one thousand rupees.

Order XXI Rule 37 provides discretionary power to the judgment debtor to show cause against
detention in prison. According to this rule:

 Where the application is made for the execution of the decree for the payment of money
by the arrest and detention of a judgment-debtor in the civil prison, then the court
provides an opportunity to the judgment-debtor to show cause why he should not be sent
to the civil prison.
 The Court provides notice to the judgment-debtor to appear before the court on a
specified date and provide show cause.
 The Court will also not provide the notice in certain situations, for example, if the court
feels it would delay the process of execution or the judgment-debtor might abscond
within that time.

Appointment of Receiver
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One of the modes of execution of a decree is the appointment of a receiver. Execution by

appointment of a receiver is known as equitable execution and is entirely at the discretion of
court. It cannot be claimed as of right. It is thus an exception to the general rule that it is for the
decree holder to choose the mode of execution and that the court has no power to refuse the
mode chosen by him.21

The appointment of receiver in execution proceeding is considered to be an exceptional remedy

and a very strong case must be made out in support of it. 22 The decree-holder before resorting to
this mode must show that there is no effective remedy for obtaining relief by the usual statutory
modes of execution. The court also must be satisfied that the appointment of receiver is likely to
benefit decree-holder and judgment-debtor rather than a sale of the attached property.23

Order XL contains various provisions relating to the appointment of a receiver. The Court will
also fix appropriate remuneration for the services provided by the receiver. The Court can
appoint an impartial person known as receiver before or after a decree for:

1. Management and protection of property;

2. Collection of rents and profits;
3. Application and disposal of rents and profits;
4. Execution of documents;
5. The court also provides powers other than the above-mentioned power if it thinks fit.

The court can sometimes attach and sell the property of the receiver in order to recover the loss
occurred because of him and can give the remaining amount to the receiver after compensating
the loss.

Partition
Order XX Rule 18 of the Code deals with the decree in the suit for partition of property. When
the Court passes the decree for partition of any movable or immovable property and if there is
any difficulty in partition, the Court can pass a preliminary decree which clearly demarcates the
different rights of the property. When the decree of partition relates to the estate assessed to the
payment of revenue to the Government, the partition can be made by the Collector or any other
gazette officer who is subordinate to the Collector and the gazette officer has to be appointed by
the Collector themselves.

Other manner as may be required

21
Takwani, C.K., “Civil Procedure with Limitation Act, 1963.” 8th Edition. Eastern Book Company. Pg. 633.
22
Bhagwati Bai v. Padma Bai, AIR 1955 Ajm 58
23
Toolsa Golal v. John Antone, ILR (1887) II Bom 448
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The execution of decree can be made by other manners as may be required other than those
which already discussed. There are:

1. Sentence and Imprisonment

2. Death sentence
3. Life time Imprisonment
4. Compensation and Damages
5. Specific performance of Contract
6. Injunction
7. Declaration
8. Payment of Money
9. Execution of document
10. Endorsement of negotiable instrument
11. Attachment of rent, Mesne profits
12. Payment of coins or currency notes etc.

Conclusion

Execution is the enforcement of decrees and orders by the process of court, so as to enable the
decree-holder to realize the fruits of the decree. The execution is complete when the judgment-
 P a g e | 11

creditor or decree-holder gets money or other thing awarded to him by the judgment, decree or
order.

Order XXI of the Code contains elaborate and exhaustive provisions for execution of decrees and
orders, take care of the different type of situation and provide effective remedies not only to the
decree-holder and judgment-debtors but also to the objectors and third parties.

A decree can be executed by various modes which include delivery of possession, arrest, and
detention of the judgment-debtor, attachment of the property, by sale, by appointment of
receiver, partition, cross-decrees, and cross-claims, payment of money etc. On exceptional
situation, where provisions are rendered ineffective or incapable of giving relief to an aggrieved
party, he can file suit in civil court.

It is the duty of the Court to assess the facts of each and every case and provide appropriate relief
to the decree-holder without any delay. The Court has to follow the procedures which are
provided under the Orders of the Code before executing a decree and choosing appropriate mode
of execution.