Execution of Decrees

Execution of decrees implies the enforcement or implementation of the decrees. Simply

“execution” means the process for enforcing or giving effect to the judgement of the court.
Execution is the enforcement of decrees and orders by the process of court, so as to enable the
decree-holder to realise the fruits of the decree. The execution is complete when the judgement-
creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or
order. The Code of Civil Procedure provides for various modes through which decrees or orders
may be executed.

Who may execute the decrees and against whom

Decree may be executed by:

1. Decree holder
2. One of the several decree holders where there are joint decree holders and the application
is for execution of the whole decree and for benefit of all joint decree holders
3. Legal Representative of the deceased decree holder
4. Representative of the Decree holder
5. Transferee of the decree holder provided notice is given to the transferor and the
judgment debtor

Against whom decree can be executed

1. The judgment debtor

2. Legal Representative of the deceased judgment debtor (to the extent of the shares
inherited by them)
3. Representative of the judgment debtor
4. Surety of the judgment debtor

Which Court can execute a decree

The decree can be executed by the court which passed the decree (sec. 38) or to the court to
which the decree is transferred (sec. 39). The court which passed the decree is generally the court
of first instance even in case of an appellate decree. (sec. 37)
Stay of Execution

stay of execution comprises 4 rules, namely, Rules 26 to 29. A perusal of these rules will show
that the first three rules i.e. Rules 26 to 28 deal with the powers and duties of a Court to which a
decree has been sent for execution. Under Rule 26, that Court can stay the execution of the
decree transferred to it for execution for a reasonable time to enable the judgment-debtor to
apply to the Court by which the decree was passed or to any Court having appellate jurisdiction
over the former for an order to stay execution or for any other order relating to the decree or
execution which might have been made by the Court of first instance or the appellate Court. It
will be seen, therefore, that under Rule 26 the transferee Court has a limited power to stay
execution before it. Moreover, under sub rule (2) if any property is seized by it in the course of
execution, it may even order the restitution of the property pending the result of the application
made by the judgment-debtor to the Court of the first instance or to the appellate Court. Rule 27
says that any such restitution made under sub-rule (2) of Rule 26 will not prevent the property of
the 6 judgment-debtor from being retaken in execution of the decree sent for execution. Rule 28
provides that any order of the Court by which the decree was passed, in relation to the execution
of such decree, shall be binding upon the Court to which the decree was sent for execution. And
then we have Rule 29 which deals with a different situation. The rule is as follows:
“Where a suit is pending in any Court against the holder of a decree of such Court, on the part of
the person against whom the decree was passed the Court may, on such terms as to security or
otherwise, as it thinks fit stay execution of the decree until the pending suit has been decided.”
It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings
in one Court. One is the proceeding in execution at the instance of the decree-holder against the
judgment-debtor and the other a suit at the instance of the judgment-debtor against the decree
holder. That is a condition under which the Court in which the suit is pending may stay the
execution before it.

Modes of Execution
Section 51, gives the power to court to enforce the decree in general. This section defines the
jurisdiction and power of the court to enforce execution. Application for execution of decree
under this section may be either oral (order 21 rule 10) or written (order 21, rule 11). Party has to
choose the mode of implementation of decree. Court may execute decree as per the choice
prayed by the decree-holder or as court may thinks fit.

Mode of executing decree under section 51:

 By delivery of any property specifically decreed. Property may be movable or

immovable. By attachment and sale of the property or by sale without attachment of the
property.
 Court can execute decree by mode of arrest and detention. no execution of decree by
arrest or detention of judgement-debtor unless reasonable opportunity is given in the form
of show cause notice as why he should not be imprisoned.
 It can be executed by appointing a receiver.
 Clause (e) is the residuary clause and comes into play only when the decree cannot be
executed in any of the modes prescribed under clause (a) to (d).

1. Arrest and Detention

Procedure: (sec 55 to 59, o.21 r. 37 to 40)

A judgement-debtor may be arrested at any time and on any day in execution of a decree. After
his arrest, he must be brought before the Court as soon as practicable

For the purpose of making arrest, no dwelling house may be entered after sunset or before
sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling
house is in the occupation of the judgment-debtor and he refuses or prevents access thereto.

Again, where the room is in the actual occupancy of a Pardanashin woman who is not the
judgement- debtor, reasonable time and facility should be given to her to withdraw there from.

No order to detention of the judgement-debtor shall be made where the decretal amount does not
exceed rupees five hundred. No judgement-debtor may be arrested unless and until the decree
holder pays into Court the subsistence allowance as fixed by the Court. Where the judgement-
debtor pays the decretal amount and costs of arrest to the officer, he should be released at once.
Notice: (r. 37)
Where the decree is payment of money and the application is made for arrest and detention of the
judgement-debtor, the Court shall, instead of issuing a warrant for arrest, issue a notice called
upon the judgement-debtor to appear and show cause why he should not be committed to civil
prison in execution of the decree. The underlying object of “issuing notice is to” afford
protection to honest debtors incapable of paying dues for reasons beyond their control.

Where the judgement-debtor appears before the Court in obedience to such notice, and if the
Court is satisfied that he is unable to pay the decretal amount, the Court may reject the
application for arrest.

On the other hand, where the judgement-debtor appears but fails to show cause to the satisfaction
of the Court against the arrest and detention, the Court may, subject to the provisions of the
Code, make an order of detention.

Where the judgement-debtor does not appear in obedience to the notice under Rule 37, the Court
shall, if the decree-holder so requires, issue a warrant for the arrest of the Judgement-debtor.

Where a money decree has remained unsatisfied for a period of thirty days, the Court may, on
the application of the decree holder, require the judgement-debtor to make an affidavit stating the
particulars of his assets. The person disobeying the order may be detained upto three months.

Who cannot be arrested?

The following classes of persons cannot be arrested or detained in civil prison,

(i) A woman in case of money decrees , (sec. 56)

(ii) Judicial officers, while going to preside in or returning from the Courts, (sec 135)

(iii) The parties, their pleaders, mukhtars, revenue agents and recognised agents and their
witnesses acting in obedience to a summons, while going to, or attending, or returning from the
Court, (sec 135)

(iv) Members of legislative bodies; and (sec 135 A)

(v) Any person or class of persons, whose arrest according to the State Government might be
attended with danger or inconvenience to the public.{sec 55(2)}
(vi) Where the amount of decree is less than 2000 Rs. {sec 58 (1)(a)}

(vii) where the decree to be executed is for restitution of conjugal rights. (r. 32, o.21)

Period of Detention:
The period of detention of the judgement-debtor in the civil prison shall be (a) upto three
months, where the decretal amount exceeds rupees five thousand; and (b) upto six weeks, where
the decretal amount exceeds rupees 2000/- but does not exceed rupees 5000/-.

Release of Judgment-Debtor:
A Judgement-debtor shall be released before the expiry of the period of detention on the
following grounds:

(i) on the amount mentioned in the warrant being paid; OR

(ii) on the decree against him being otherwise fully satisfied; OR

(iii) on the request of the decree-holder; OR

(iv) on the omission by the decree-holder to pay subsistence allowance.

Such release, however, does not discharge the judgement-debtor from his debt, but he cannot re-
arrested on the same ground.

The Judgement-debtor may also be released by the Court or by the Government on the ground of
illness.

The provisions of Section 59 are based on purely humanitarian grounds. If the judgement-debtor
is suffering from serious illness, the Court should release him so as to escape from the moral
responsibility in case anything happens to him.

Being a beneficial provision, Section 59 should be construed liberally and humanitarian impulse
should not be lost sight of when applying it to the facts of the case.

Case law: Jolly Verghese v. Bank of Cochin AIR 1980 470

The SC referred to Art. 11 and 21 of the International Covenant on Civil and Political Rights and
held that arrest and detention cannot be used on a simple default to discharge the debt. Some
element of bad faith is necessary and not mere indifference. There must be some dishonest
intention of the judgement debtor.

Attachment of Property

A decree may also be executed on the application of the decree-holder by attachment and sale
only sale without attachment of property. Attachment is a means by which the judgment debtor is
stopped from dealing with his property freely.The code recognizes the right of the decree-holder
to attach the property of the judgement debtor in execution proceeding and lays down the
procedure to effect attachment. Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the
subject of attachment of property. The code enumerates properties which are liable to be attached
and sold in execution of a decree. It also specifies properties which are not liable to be attached
or sold. It also prescribes the procedure where the same property is attached in execution of
decrees by more than one court. The code also declares that a private alienation of property after
attachment is void.

Section 60(1) declares what properties are liable to attachment and sale in execution of a decree,
and what properties are exempt therefrom. All saleable property( movable or immovable)
belonging to the judgement-debtor or over which or the portion of which he has a disposing
power which he may exercise for his own benefit may be attached and sold in execution of a
decree against him.

Section 61 deals where the judgement-debtor is agriculturist, the state government may exempt
some portion or class of agricultural produce from attachment

Section 63 where two different courts have attached the same property through different decree,
then it will be looked, that which court is superior. If the courts are of same grade then the court
which attached the property first will receive the property

Section 64 provides that an alienation of a property under attachment will be void as regards any
claims under the attachment
PRECEPT

Section 46- “precept” means a command, an order, a writ or a warrant. A precept is an order or
direction given by court which passed the decree to a court which would be competent to execute
the decree to attach any property belonging to the judgement-debtor.

Section 46 provides that court which passed a decree may, upon an application by the decree-
holder, issue a percept to that court within whose jurisdiction the property of the judgement-
debtor is lying to attach any property specified in the percept.

A percept seeks to prevent alienation of property of the judgement-debtor not located within the
jurisdiction of the court which passed the decree so that interest of the decree-holder is
safeguarded and protected.

It is interim attachment of the property which lies outside the jurisdiction of court which has
passed the order. To protect the interest of the decree holder on his application will issue percept
to the court in whose jurisdiction property is situated to attach the property of the judgement-
debtor. The interim order for attachment is valid for the period of only 2 months.

GARNISHEE ORDER

It is the proceeding by which the decree-holder seeks to reach money or property of the
judgement-debtor in the hands of a third party (debtor of judgement-debtor).

Suppose A owes Rs 1000 to B and B owes Rs 1000 to C. By a garnishee order, the court may
require A not to pay money owed by him to B, but instead to pay C, since B owes the said
amount to C, who has obtained the order.

“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the
judgement-debtor because the latter is indebted to the garnisher.
Sale of Property

A decree may be executed by attachment and sale or sale without attachment of any property.
Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable
and immovable property.

 Power of court: Rule 64-65

Rule 64: a court may sell the property, which he has taken into custody under an attachment
under order 60.

Rule 65: appointment of officer by the court who will be charged to sell the property. Officer
will be the representative of the court and will sell the property for execution of decree.

 Proclamation of sale: Rule 66-67

It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s says that
people can participate in auction and sale. Proclamation can be in writing or by customary mode.

Contents of proclamation:-

1. Time and place of sale

2. Property to be sold
3. Revenue, if any, assessed upon the property;
4. Encumbrance, if any, to which property is liable;
5. Amount to be recovered;
6. Details relating to property, such as title deed, length etc.

 Time of sale: Rule 68

No sale without the consent in writing of the judgement-debtor can take place before fifteen days
in case of immovable property and before 7 days in case of movable property from the date of
proclamation in the courthouse. A sell can be conducted immediately if the property is of
perishable nature.

 Adjournment of sale: rule 69

If the judgement-debtor after the issue of proclamation and before sell has paid the amount, or
has partly promised to pay on the given date before completion of public order, if there is any
justified reason, in those circumstances, court has discretionary power to postponed the sell. If it
has been postponed for period of 30 days, fresh proclamation has to be issued and again the
process of rule 67, 68 and 69 will follow.

Sell cannot be postponed where judgement-debtor dies before the date of sell or after the issue of
proclamation, or on the date of auction.

 Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the property sold
in execution of his own decree.

A mortgagee of immovable property cannot, without the leave of the court, purchase the property
sold in execution of decree on the mortgage.

Any officer or other person having any duty to perform in connection with the execution sale
cannot either directly or indirectly, acquire or any attempt to acquire any interest in the property
sold in execution.

Rule 78-78 talks about sale of movable property. Rules 74 and 75 relates to the sale of
agricultural produce and growing crops. Rule 76 covers negotiable instruments and shares. Sale
of movable property should be held by public auction. A sale of movable property will not be
said aside on the ground of irregularity in publishing or conducting the sale (rule 78).

Rule 82-94 talks about sale of immovable property. Rule 83 enables the executing court to
postpone sale to enable the judgement-debtor to raise decretal dues by private alienation.
Rule 84-85 provide for payment of purchase money by auction-purchaser. Rule 86 talks about
cases of default by auction-purchaser in making requisite payment and resale of property. Rule
89-91 and 93 deals with setting aside sale and effect thereof. Rules 92-94 provide confirmation
of sale and issuance of sale- certificate.

Other Modes:

In case the above methods cannot be employed then there are other methods for execution o a
decree like appointment of receiver, delivery of property, where property is movable, delivery of
possession where property is immovable

Questions to be determined by executing court

Section 47 of CPC

All the questions relating to execution, discharge and satisfaction of the decree are to be decided
by the Executing Court and even the decision of the complicated questions is also not prohibited.
All questions arising between the parties to the suit in the decree shall be determined by the court
while executing the decree and not by separate suit.

Section 47 of the Civil Procedure Code provides for disposal of all the questions arising between
the parties to the suit, in the decree was passed, or their representatives, and relating to the
execution, discharge or satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit. The conditions to be fulfilled for an executing court to take
cognizance of a matter are:
 The question must be arising between the parties to the suit in which the decree is passed,
or their representatives and
 It must relate to the execution, discharge or satisfaction of the decree.
Thus questions which can be decided by an executing court are:
  executability of a decree i.e whether the decree can be executed?
 whether the decree is satisfied,
 whether an application to set aside sale is maintainable,
 whether a person is or not a representative of a party,
 whether the decree has been validly assigned etc are some questions which can be
decided by the executing court.
 Whether particular property is included in a decree
 Whether a party is entitled to restitution etc.
However, there are certain questions which do not relate to discharge , execution or satisfaction
of a decree and therefore cannot be determined by the executing court like:
 A question relating to the validity of the decree
 whether decree is fraudulent
 A question relating to the territorial jurisdiction of the court which passed the decree
 An order appointing or refusing to appoint a commissioner for partition
 An order granting or refusing to grant instalments etc.
 Whether auction purchaser can recover possession.

A determination of any question under section 47 is no longer (after amendment in 1976)

deemed to be a decree and therefore is not appealable under section 96 or 100. However, a
revision application under section 115 may be filed if the conditions under the section are
fulfilled.

Adjudication of claims

Order 21,Rule 58, provides for persons who object to any attachment made under the execution
to raise their objections before the executing court. The court will hold a complete inquiry as to
right, title , interest of the applicant. The orders passed by the court shall be subject to appeal as
if it were a decree. Thus, even a third party may raise an objection under this rule. This is the
basic difference between this provision and section 47 which applies to the parties to the suit or
their representatives.
Difference between sec 47 and rule 58 (order 21)

Sec. 47 Rule 58

Only questions between the parties or their Even third party objections can be dealt with
representatives can be determined

Order passed not subject to appeal Order passed under the purview of this rule is
made appealable like a decree

Section 47 bars a subsequent suit so that any Where a question is determined under rule 58,
question related to the execution should be generally a suit is barred but if the objection is
decided by the executing court only. not entertained by the court on the ground that
the objection is raised after sale then a suit can
be filed.

Delivery of property

Section 74 and rules 97 to 103 of order 21 deals with resistance to delivery of possession. The
decree holder or the auction purchaser can apply to the court under rule 97 of order 21 if they
are resisted from taking possession by any person obtaining possession of the property. The
Court shall hear such applications and as per rule 101, have power to determine all questions
related to right, title, or interest in the property arising between the parties to the proceeding on
an application under rule 97 or their representatives. Simmilarly, if any person other than the
judgment debtor is dispossessed of the immovable property by the decree holder or the auction
purchaser, then he may apply to the court under rule 99 against such dispossession. The court
will take up the application and again as per rule 101, and determine all questions related to
right, title, or interest in the property arising between the parties to the proceeding on an
application under rule 99. The court after hearing the application under rule 97 or 99 as the case
may be pass orders as per rule 98 and 100 :
  Allow the application and directing the applicant to be put in possession
 Dismiss the application
 Pass any other interim order as the court deems fit

The orders passed under rule 98 or 100 would be subject to appeal like a decree (rule 103). If
inspite of the order of the court under rule 98, the applicant (decree holder or auction
purchaser or their representatives) is resisted(by judgment debtor or any person on his
instigation, or by a transferee) to be put in possession , the court may order the obstructor to
be detained in civil prison for upto 30 days

Rateable Distribution of Assets

Section 73 of the Code which provides for rateable distribution of the assets of the judgment
debtor among decree holders. The said provision says that where assets are held by a court and
more persons than one have, before the receipt of such assets made application to the court for
execution of decree for the payment of money passed against the same judgment debtor and have
not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be
rateably distributed among all such persons. Rateable distribution means equitable or
proportionate. Thus if assets are not enough to satisfy every decree holders interest, each must
get something in proportion to his claim.

Example: A obtains a decree against B for Rs 9000 in X court and applies to the court for
execution be attachment and sale of B’s property. The property of B is attached. Thereafter, one
C obtains a decree for Rs 3000 against B in the same court and also applies for execution of his
decree by attachment and sale. The property of B is then sold by the court for Rs 6000. Now, the
court does not have sufficient amount to satisfy both decree holders claims. If it pays complete
sum to C then it will be inequitable for A. Thus the principle of rataeble distribution of assets
will be applied and the court will satisfy the claims of both A and C proportionately (i.e 3:1) and
thus A will get rs. 4500 and C will get Rs 1500

Object: The basic idea is to treat all the decree holders on the same footing and to distribute the
assets realized by the court proportionately to all the decree holders. The object is twofold
namely: to prevent multiplicity of execution proceedings and to place all decree holders on
the same footing by securing equitable distribution of the property among them.
Conditions:

 There are multiple decree holders against the same judgment debtor.
 The applicants for rateable distribution must have obtained a decree against the
judgement debtor and applied to the court for execution
 The application must have been made before the receipt of assets by the court.(i.e. the
court should not have already sold them and realized the monetary value)
 The assets must be held by the court

The term asset usually implies monetary sum with the court realized from sale proceeds, deposit
by defaulting purchaser, salary under attachment, money deposited by surety to release
attachment, money in garnishee proceedings etc.

Suit for refund: incase there is a wrongful distribution of the assets i.e the assets are wrongfully
distributed to a person not entitled to them then the person who is so entitled can file a suit for
refund of the said amount under sec. 73(2).

Priority to Govt. debt : Under section 73(3), priority is given to government debts in pursuance
of the theory of priveledge to the crown for performing sovereign functions. Thus the concept of
rateable distribution may not apply if govt is one of the decree holders and its debts will be given
priority over any other claims.