Lawwatch

Execution of a Decree in a Nutshell

Introduction

The term execution of a decree refers to the process for enforcing
or giving effect to the judgment, decree or order of the court.

The execution is the mechanism though which the decree holder
realises the fruits of the decree
ordered by the court. It comes to a
close when the decree holder gets the relief awarded to him by the
court.

The decree holder is the person in whose favour a decree has been
passed, and the judgment debtor is the person against whom a decree
has been passed.

Legal provisions on execution

The Sections 36 to 74 of the Civil Procedure Code, 1908 (CPC), lay
down the basic legal framework for execution of decrees and orders.

The Order 21 Rules 1 to 106 provides for the procedural details in
regard to execution under CPC.

The Rules 272 to 369 of the Civil Rules of Practice Kerala provides the
procedures relating to execution of decrees.

Article 135 & 136 of the Limitation Act, 1963 put the limitation period
of enforcement of a decree. The former one provides 3 years for a decree
granting a mandatory injunction and the latter one provides 12 years for
any decree or order other than a decree granting a mandatory injunction.

The court executing the decree

A decree can be executed by either the court which passed it or
the court to which it is sent for execution.

The term ‘court which passed the decree’ means the ‘court of first
instance’ in case of a decree of that court or the appellate decree of
an appeal court. If a court of first instance ceases to exist or ceases
to have jurisdiction to execute the decree, the court which would have
jurisdiction at the time of execution of the decree can execute it.

The ‘court which passed the decree’ can send the decree for execution to
another court either of its own motion or on the application of
the decree holder
if the judgment debtor resides or doing business or
his property situates at the jurisdiction of another court.

A decree can also be executed simultaneously at different places
when the property of the judgment debtor situates in different
locations.

Powers of the executing court

The executing (transferee) court has all the powers needed to execute
the decree
once the decree is transferred to that court for execution.
But it does have no power either to alter the substantive rights of
the parties or to function as a court passing the decree
, in regard to
the content of the decree.

The question of validity of the decree cannot be agitated in the
executing court
as it is not a matter relating to execution. The
executing court cannot go behind the decree and correct the mistake
in the decree.

However, a decree passed by a court without jurisdiction is a
nullity
. Therefore the invalid nature of such a decree can be set
up during execution.

If a decree is ambiguous the executing court can ascertain its clear
meaning by going through the pleading and the judgment. But in the
guise of interpretation
the executing court cannot make a new
decree
.

Similarly, if a decree is obtained against a dead person the executing
court can refuse to execute the decree as it is a nullity. But a decree
passed in favour of a dead person is not at all a nullity.

The court executing the decree will decide every objection
relating to execution
, discharge and satisfaction of the decree,
arising between the parties to the suit.

Application for execution

The execution proceedings start with by filing an application for
execution by the decree holder. The application for execution should be
made to the court which passed the decree or the court where the decree
has been transferred to for execution of it.

Decree holder, his representative or his legal representative, any
person who has any claim under the decree or any assignee (transferee)
of the decree can make an application. No other person can apply for
execution of a decree.

The execution is taken out against the judgment debtor, his
representative or his legal representative, any person claiming under
the judgment debtor or his surety.

The application for execution shall be in writing, signed and verified
by the applicant or by someone acquainted with the facts, except for
money suit. For the payment of money oral application is sufficient.

The application should contain necessary particulars of the suit,
inventory of the moveable property to be attached, description of the
immoveable property owned by judgment debtor but possessed by the decree
holder, the details of the person and the grounds for arrest in case
arrest is needed, certified extract of the register of the land to be
attached, as the case may be. The application should include a certified
copy of the decree as well.

In case the application is defective when presented, the court must
allow the defect to be cured within a specified time. If the defect is
not cured within the specified time, the application would be rejected.

The period of limitation for execution of a decree for mandatory
injunction is three years and for other decrees twelve years.

Transmission to another court

If the application is admitted the applicant should deposit in court the
postage charges for transmitting the application, to the court of the
lowest grade competent to execute it.

Once the application is transmitted for execution, the decree holder
should make an application to the latter court within six months. If no
application is made within that period the latter court will return the
application to the former one.

Notice before ordering execution

No notice is generally issued to the party against whom execution is
applied for.

But in the following cases the court executing the decree shall issue a
notice to the opposite parties, under Order 21 Rule 22 of the CPC.

  1. Where the application is made after more than two years of the date
    of the decree

  2. Where the interest of the decree holder has been transferred by
    assignment

  3. Where the execution applied for is against the legal representatives
    of the judgment debtor.

The object of notice under the Rule 22 is to give the judgment
debtor an opportunity to show why the execution should not be
proceeded
with.

No notice is needed when the transfer of the right to execution is by
operation of statutory laws.

Process of execution

When the preliminary measures have been taken the court shall issue its
process for the execution of the decree.

In every such process a day shall be specified on or before it shall be
executed and it shall be returned to the court. The officer entrusted
with the execution of the process shall endorse the day on which it was
executed. If there is inability for the officer in executing the
endorsement on process, the court shall examine it and record the
result.

The executing court can seek police help even in execution of a decree
for possession.

Questions determined by the executing court

No new plea can be allowed to be raised for the first time in execution
proceedings. Once decree reached finality it is not open to judgment
debtor to plead new facts in execution proceedings. The executing court
cannot travel beyond decree under execution.

But all questions arising between the parties to the suit or their
representatives and relating to the execution, discharge or satisfaction
of the decree, falling under Section 47 of the CPC, shall be determined
by the executing court as part of the execution of decree but not as a
separate suit.

The plaintiffs and the defendants in the original suit are parties to
the suit for the purpose of this section. Similarly the purchaser or his
representatives are parties for the purpose.

The matters must be heard as if in a suit after recording all oral and
documentary and record its judgment and draw up its order.

Stay of execution

The executing (transferee) court can stay execution for a reasonable
time when any sufficient cause is shown.

Such a stay is granted to enable the judgment debtor to apply to the
(transferor) court which passed the decree or an appellate court for
obtaining an order to stay
execution or for any other order relating
to the decree or execution.

The transferee court can allow a temporary stay but the transferor court
can grant an absolute stay.

The stay application can be filed when there exist claim
petitions
in which the judgment debtor and the decree holder have to
mutually adjust claims between them, in some other pending suit.

Mode of execution

The decree holder can choose a particular mode for executing a
decree.

But the court has discretion to disallow execution against the person
and his property simultaneously.

The following are the important modes of execution:-

  • By delivery of moveable and immoveable property

  • By attachment and sale or by sale without attachment, of the
    property

  • By arrest and detention of the judgment debtor in civil prison

  • By appointment of a receiver for realization, management,
    protection, preservation and improvement of the property, and the
    collection of the rents/profits thereon. This is done at the
    discretion of the court

  • By partition for separation of shares in case of a decree for
    partition

  • By raising set off against cross decrees/mutual claims

  • By payment of money in court or out of court

  • By specific performance of contract, when judgment debtor
    willfully disobeys

  • By execution of document by court

  • By endorsement of negotiable instruments

  • By attachment of rent, mesne profits etc

Arrest and detention of judgment debtor

One mode of execution of a decree for payment of money, exceeding Rupees
two thousand, is arrest and detention of the judgment debtor in a
civil prison.

When decree holder files an application along with an affidavit stating
the grounds for arrest and detention, the court will issue a notice to
the judgment debtor to appear before the court on a day and show cause
why he should not be committed to civil prison. No notice as above is
required if the judgment debtor is likely to abscond or leave the local
jurisdiction of the court.

If judgment debtor appears, pleads and prove he does not have any
means
to pay the amount, he will not be arrested. When he appears
what the decree holder is required to prove is that the judgment debtor
has or had, since the date of the decree, the means to pay the decree
amount or some substantial portion of it and he refused or neglected to
pay.

On the other hand, if he does not appear when required, the court will
issue warrant. If the judgment debtor is a government officer, a notice
is to be issued to his superior before arresting the officer.

However, a woman, judicial officers, the parties or the pleaders going
to attend or returning a court, members of legislative bodies, etc
cannot be arrested or detained ( See Sections 56, 58, 135 & 135 A of the
CPC).

When a warrant of arrest is returned unexecuted it will be notified in
the notice board. If there is sufficient time before the date of hearing
for execution of warrant fresh warrant may be issued on payment of
process fee by the decree holder.

When a judgment debtor arrested for payment of money in a decree and
brought before the court expresses his intention to apply to be
declared an insolvent
and furnishes security instead, the court may
release him from arrest. But if he fails to do so within one month the
security will be realised and he will be committed to prison. The court
should not order arrest and detention if the judgment debtor has not
means to pay.

A judgment debtor may be arrested at any time and any day, but no
dwelling house may be entered after sunset or before sunrise for the
arrest. No outer door of a dwelling house may be broken open unless it
is in the occupancy of the judgment debtor.

Judgments debtor will be put to civil prison, after conducting medical
examination at the judgment debtor’s or decree holder’s expenses, and
the detention will be for three months only. Re-arrest is not
normally possible. The decree holder will have to pay Travelling
Allowance for accompanying peon, Rs 10 per diem towards the subsistence
allowance, Rs 50 for bedding charges and conveyance charge for the
debtor from court to prison and prison to his residence on release as
the court fixes.

When the judgment debtor pays the decretal amount with cost he should be
released at once. The judgment debtor arrested or committed to prison or
under warrant of arrest will be set free on the ground of his serious
illness. The state government can release a person detained in civil
prison on the ground of any infectious or contagious disease.

The Civil Rules of Practice, Kerala provides for provisions relating to
treatment of debtor at the cost of decree holder and release if he is
sick in a bad condition.

Attachment of property

Attachment and sale of property can be done under execution of a decree.

An attachment is an order prohibiting and restraining the defendant
from transferring the attached property or from creating any charge
over such property by sale / gift or otherwise.

Every application for execution by attachment shall include a list of
properties to be attached, their nature, whose possession they are and
the estimated price. When attaching moveable properties the decree
holder will have to pay the removal and custody and other maintenance
charges for them.

Any private transfer of attached property is void to the extent it
creates new rights or liabilities. But a transfer as per an agreement
executed prior to the attachment is legally valid.

Attachment is being done to give notice to the judgment debtor not to
alienate the property
and the public not to buy it. Any property,
which is not liable to be attached under the law, can be attached. Some
properties cannot be attached, as per Section 60 of the CPC.

Moveable property should be attached by actual seizure. If the property
thus seized is subject to speedy and natural decay the attaching
officer may sell
the property. If due to any default on the part of
the person applying for attachment the moveable items of property cannot
be sold within a reasonable time, the court can withdraw attachment at
any time.

Agricultural produce is to be attached by affixing a copy of warrant of
attachment on the land on which such crops are grown or on the floor
where the grain is stocked.

Approaching the Garnishee: the debtor’s debtor

The decree holder can reach the debtor who owes any debt to the judgment
debtor (a Garnishee is a debtor’s debtor) by filing an application along
with an affidavit to the court.

The court can issue an order asking him to pay the amount to the court
if he is staying within the court’s jurisdiction. Otherwise the case has
to be transferred to the district court of that area for enforcing the
payment.

If Garnishee disputes his liability in the decree the dispute needs to
be tried as if it were an issue in the suit.

Attachment of salary

Salary or allowance of an official of the government, Company,
Government owned Corporation, Railway or Local Authority can be attached
by a court order as provided for by law. The order shall be sent to the
disbursing officer or the officer who can instruct him.

The disbursing officer of salary, on receiving a court order, shall
withhold and remit the installment of salary to the court. If the
attachable portion of the salary of the official is remitted to a court
in pursuance of a previous court order, the officer shall return the
subsequent order received from another court with a full statement of
particulars to the latter court.

The portion of salary that can be attached in any decree other than the
maintenance decree is arrived at by excluding the first one thousand
rupees and the two third of the remainder from the total salary. Here
the salary means the total monthly emoluments, excluding any allowance
declared exempted from attachment.

If a warrant of attachment of salary is retuned unexecuted as the
attachable portion of salary is already under attachment by a previous
court order, the officer shall send a statement of details to the court
along with the returned warrant.

Attachment of salary of the private employees is possible by an order of
the court.

Attachment of partnership property/ firm

Attachment of property belonging to a partnership firm can be made only
when the decree is against the firm or against the partners in the firm
as such. However the court can charge the interest of one partner in
the firm if the decree is against him.

If decree is against a firm, the execution is possible against any
property of the partnership or anyone admitted on the pleadings as a
partner or anyone who failed to appear before the court on serving
summons.

No partner can be made liable unless he is served with a summons to
appear and answer.

Claims and objection against attachment

Parties to the suit and other third parties can raise objections
against attachment of property in case any interest of such party is
defeated.

The parties to the suit can file application under Section 47 of the CPC
whereas the third parties can file either a suit for claims or an
application under Order 21 Rule 58 of the CPC. The court shall hear the
person, adjudicate upon the claim and allow/disallow it. When a claim
petition is dismissed it cannot be restored under Order 9 Rule 13 of the
CPC, but it can be restored under Section 106 of the CPC.

Any person, who has some right, title or interest in the attached
property at the time of attachment, may lodge a claim or raise an
objection against attachment. A claim petition may be filed in the
executing court which attaches the property

Procedure for sale of property

The court is bound to order sale of property when a property is attached
and a party files an application to order sale. The court has authority
to sell a portion of the property of the judgment debtor necessary to
satisfy the decree. No sale beyond the decretal amount is permissible.
Sale is to be done by the officer of the court by public auction
alone.

The decree holder should apply for sale of the property in form 56 along
with Draft Sale Proclamation (DSP) and for appointment of a person for
conducting the sale. The application should accompany an affidavit with
particulars of the property, the interest of the debtor and others in
the property, the best time for sale, the methods of advertising the
sale, and the market value of the property. Proclamation should be made
after issuing notice to the judgment debtor.

The court will appoint an officer for sale, fix his remuneration,
determine the date and place of sale in an order. The decree holder will
have to pay the estimated expenses for the sale and prescribed fee for
proclamation and warrant of sale.

The object of issuing a proclamation is to give notice to intending
purchasers to know what is to be sold and the names of the parties whose
right, title and interest in it are to be sold. After proclamation the
sale takes place after 15 days in case of immoveable property and 7 days
in case of moveable property, a failure of which will make the sale
void.

The application should include property to be sold or portion thereof,
revenue assessed on the estate, encumbrances to which property is
liable, amount to which sale is ordered, valuation of both parties and
other material things. Proclamation should be published in a local news
paper or beat of drums.

Decree holder should not buy the property without permission of the
court. The mortgagee or the officers of the court also cannot bid at the
sale.

All court sales shall be between 1.45 PM and 3.15 PM. The highest bidder
will be declared as the purchaser and his name will be noted in the sale
warrant. The purchaser will have to subscribe to the sale memorandum.

Court can adjourn sale allowing debtor to sell it

The court can postpone sale in order to allow time for the judgment
debtor to raise decretal dues by private alienation of property such as
sale, mortgage, lease etc. The court can issue certificate to mortgage,
lease or sale, if applies for it.

Setting aside the sale

A person having any interest (the term ‘interest’ has a wide import) on
the property can apply for setting aside the sale, under Order 21 Rules
89 to 91 of the CPC, on the following grounds:-

  • On deposit of purchase price specified in the sale proclamation

  • When there is substantial injury due to material post-sale
    irregularity or fraud in conducting sale

  • When decree holder has no saleable interest.

Such an application has to be made within the limitation period of 60
days only. The pre-sale irregularities can be remedied under Section 47
of the CPC.

If sale is set aside by the court, the purchaser of the property will
get the purchase money.

Deposit price after sale

Immediately after concluding the process of sale, the person declared to
be the purchaser must deposit 25 per cent of the purchase money.

The balance amount must be paid within 15 days from the date of the
sale, the failure of which will vitiate the sale.

Sale becomes absolute when court confirms

When no application to set aside the sale is filed in the court, the
sale becomes absolute when the court makes an order of confirmation.

If no application to set aside the sale is made or is disallowed, the
sale becomes absolute and the court can confirm the sale. In case of
moveable property the court will issue an order vesting the sold
property in the purchaser.

When sale becomes absolute the court shall grant Sale Certificate
specifying the property and the name of the purchaser. The Sale
Certificate should contain the name of the court, the number and year of
the suit, the names of parties to the suit, the name of the purchaser,
the sale price, the date of the sale certificate issued, all particulars
of the property, the nature of interest sold etc.

The copy of the sale certificate will be transmitted to the proper
registering office where the property situates. If the court sale order
is set aside subsequently in any appeal or revision, that order will
also be sent to the registering office.

Issue of a Sale Certificate is a ministerial act. Purchaser’s title
relates back to the date of sale and not the date of confirmation of the
sale.

Delivery of property

When the auction purchaser in pursuance of a sale certificate, after
confirmation of the sale by the court, applies for putting him in
possession of the property court will issue a Warrant for delivery of
the property, on payment of the required process fee and delivery to be
made by affixing a copy of the Warrant in some conspicuous place on the
property..

Rateable distribution of assets

Rateable distribution is proportionate distribution of proceeds of
execution sale of a property of the judgment debtor, among two or more
decree holders by the court, when it is held by it. This issue is
described under Section 73 of the CPC.

The cost of realisation of assets is given priority over other debts.
The Section also confers priority to government debts over other debts
when the amount is left with the court. But the government cannot lay
claim after its distribution.

The Section allows filing of suit for refund of any asset wrongly
distributed to a person who is not entitled to receive it as well. The
cause of action arises when the amount is paid. The period of limitation
for such suit is three years after actual payment.

The provision seeks to place all decree holders on an equal footing. It
secures equitable disposition of assets among rival decree holders
without any independent proceeding. Summary process of execution is
followed in such distribution.

This is more an administrative rather than a judicial action of
equitable distribution of assets by ensuring equitability among the
decree holders.

The order under this Section is not appealable as a decree but revision
is possible.

Resistance to execution

If the judgment debtor or any person on his behalf resists obtaining of
possession of the property in sale under execution by the court without
just cause, the decree holder or auction purchaser can make an
application to the court.

The court can detain the person in civil prison for a term of not more
than thirty days. The court can direct the decree holder or purchaser be
put in possession of the property as well.

Role the police should play in execution

A decree can be executed only through officers of the court in the
manner known to law. For such enforcement the court can order assistance
by police under Section 151 of the CPC.

If the police still keep inaction, the aggrieved can approach the High
Court under Article 226 of the Constitution for direction to police for
discharge of their duty (See Kochupenu v Veluthakunju 1992 KHC 270).

Conclusion

Execution of a decree is the most crucial phase of litigation in
achieving the fruits of laborious and monotonous litigation by the
parties in dispute.

A judgment would remain as a worthless piece of paper unless it is
implemented in its true spirit. This write up brings together at one
place an overview of the procedure of execution of a decree by a court
as described in the Civil Procedure Code.

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