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 Code of Civil Procedure, 1908 (CPC).
The term execution of a decree refers to the process of enforcing or giving effect to the judgment, decree, or order of the court. The execution is the mechanism through which the decree holder realises the fruits of the decree ordered by the court. It ends 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 following statutory provisions govern execution of decrees:
- Sections 36 to 74 of the CPC, 1908 lay down the basic legal framework for execution of decrees and orders.
- Order XXI Rules 1 to 106 provide for the procedural details in regard to execution under CPC.
- Rules 272 to 369 of the Civil Rules of Practice Kerala (CRP Kerala) provide the procedures relating to execution of decrees as applicable in Kerala Courts.
- Article 135 of the Limitation Act, 1963 prescribes a period of three years for enforcement of a decree granting a mandatory injunction.
- Article 136 of the Limitation Act, 1963 provides a period of twelve 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, under Section 38 CPC.
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 carries on business or his property is situated within the jurisdiction of another court.
A decree can also be executed simultaneously at different places when the property of the judgment debtor is situated 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. However, it has no power either to alter the substantive rights of the parties or to function as a court passing the decree regarding the content of the decree.
The question of validity of the decree cannot be raised in the executing court as it is not a matter relating to execution. The executing court cannot go behind the decree and correct any 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 raised during execution. If a decree is ambiguous, the executing court can ascertain its clear meaning by going through the pleadings 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 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 for its execution, under Order XXI Rule 10 CPC.
Who may apply
The 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.
Form of application
The application for execution shall be in writing, signed and verified by the applicant or by someone acquainted with the facts, except for money suits. For the payment of money an oral application is sufficient under Order XXI Rule 11 (1) CPC.
In other cases, the application should be in written form. Such an application, in Form No 6 of Appendix E to the First Schedule of CPC, should contain necessary particulars of the suit, inventory of the moveable property to be attached, description of the immoveable property owned by the judgment debtor but possessed by the decree holder, 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 and a certified copy of the decree, under Order XXI Rule 11 (2) CPC.
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.
Limitation period
The period of limitation for execution of a decree for mandatory injunction is three years under Article 135 of the Limitation Act 1963, and for other decrees it is twelve years under Article 136 of the Limitation Act 1963.
- 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, under Order XXI Rules 5 to 9 CPC.
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. However, under Order XXI Rule 22 of the CPC the court executing the decree shall issue a notice to the opposite parties in the following cases:
- Where the application is made after more than two years from the date of the decree;
- Where the interest of the decree holder has been transferred by assignment; and
- Where the execution applied for is against the legal representatives of the judgment debtor.
The object of notice under 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 statute.
- 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 which 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 the officer is unable to make the endorsement on the 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 the decree has reached finality it is not open to the judgment debtor to plead new facts in execution proceedings. The executing court cannot travel beyond the decree under execution.
However, 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 and 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 this purpose. The court shall hear the matters as if in a suit, after recording all oral and documentary evidence, and record its judgment and draw up its order.
- Stay of Execution
The executing (transferee) court can stay execution for a reasonable time to enable the judgement debtor to apply to the court which passed the decree or any other court, 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, under Order XXI Rule 26 CPC.
The transferee court can allow a temporary stay but the transferor court can grant an absolute stay.
An application seeking stay of the execution proceedings until the disposal of it, can be filed when any suit is pending between the judgment debtor and the decree holder and the court can grant stay as it thinks fit, under Order XXI Rule 29 CPC.
- Mode of Execution
The Section 51 of the CPC enumerates different modes of execution in general. The decree holder can choose a particular mode for executing a decree. However, 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 property (Section 51(a), Rule 31);
- By delivery of immoveable property (Rules 35 to 36);
- By attachment and sale or by sale without attachment, of the property (Section 51 (b));
- By arrest and detention of the judgment debtor in civil prison (Section 51 (c);
- By appointment of a receiver for realisation, management, protection, preservation and improvement of the property, and the collection of the rents and profits thereon — done at the discretion of the court (Section 51(d));
- By partition for separation of shares in case of a decree for partition (Section 54);
- By raising set-off against cross decrees and mutual claims (Rules 18 to Rule 20);
- By payment of money in court or out of court ( Rules 2 and 30);
- By specific performance of contract, when the judgment debtor wilfully disobeys (Rule 32);
- By injunction (Rule 32);
- By execution of documents by court (Rule 34);
- By endorsement of negotiable instruments (Rule 34); and
- By attachment of rent, mesne profits, (rule 42), 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, under Order XXI Rules 37 to 40 CPC.
When the 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 specified day and show cause why he should not be committed to civil prison. No such notice is required if the judgment debtor is likely to abscond or leave the local jurisdiction of the court.
If the judgment debtor appears, pleads, and proves that he does not have any means to pay the amount, he will not be arrested. 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 that he refused or neglected to pay.
On the other hand, if the judgment debtor does not appear when required, the court will issue a warrant. If the judgment debtor is a government officer, a notice is to be issued to his superior before arresting the officer.
The following persons cannot be arrested or detained (see Sections 56, 58, 135 and 135A of the CPC):
- Women;
- Judicial officers;
- Parties or pleaders going to or returning from court;
- Members of legislative bodies; and
- Other persons specified under the Code.
When a warrant of arrest is returned unexecuted it will be notified on the notice board. If there is sufficient time before the date of hearing, a fresh warrant may be issued on payment of the process fee by the decree holder.
When a judgment debtor arrested in execution of a money 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. 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 no means to pay.
A judgment debtor may be arrested at any time and on any day, but no dwelling house may be entered after sunset or before sunrise for the purpose of arrest. No outer door of a dwelling house may be broken open unless it is in the occupation of the judgment debtor.
The judgment debtor will be placed in civil prison after conducting a 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 the accompanying peon, Rs. 10 per diem towards the subsistence allowance, Rs. 50 for bedding charges and conveyance charges for the debtor from court to prison and from prison to his residence on release, as the court fixes.
When the judgment debtor pays the decretal amount with costs 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 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 provide for provisions relating to treatment of the debtor at the cost of the decree holder and release if he is seriously ill.
- Attachment of Property
Attachment and sale of property can be done in execution of a decree, under Order XXI Rule 41 CPC.
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, who is in possession of them and the estimated value. When attaching moveable properties, the decree holder will have to pay the removal, custody and other maintenance charges for them.
Any private transfer of attached property is void to the extent it creates new rights or liabilities. However, a transfer made pursuant to an agreement executed prior to the attachment is legally valid.
Attachment is effected to give notice to the judgment debtor not to alienate the property and to the public not to buy it. Any property liable to attachment under the law can be attached, while certain properties are exempt under Section 60 of the CPC.
Moveable property should be attached by actual seizure, under Order XXI Rule 42 CPC. If the property thus seized is subject to speedy and natural decay the attaching officer may sell the property, under Order XXI Rule 43 CPC. 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 the attachment at any time.
Agricultural produce is to be attached by affixing a copy of the warrant of attachment on the land on which such crops are grown or on the premises where the grain is stored, under Order XXI Rule 44 CPC.
- Approaching the Garnishee: The Debtor’s Debtor
The decree holder can proceed against the debtor who owes any debt to the judgment debtor (a Garnishee is the debtor’s debtor) by filing an application along with an affidavit to the court, under Order XXI Rules 46 A to 46H CPC.
The court can issue an order asking him to pay the amount to the court if he is residing within the court’s jurisdiction. Otherwise, the case has to be transferred to the district court of that area for enforcing the payment.
If the Garnishee disputes his liability under 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 and the order shall be sent to the disbursing officer or the officer who can instruct him, under Order XXI Rule 48 CPC.
The disbursing officer of salary, on receiving a court order, shall withhold and remit the instalments of salary to the court. If the attachable portion of the salary of the official is already being 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 two-thirds of the remainder from the total salary. Here the salary means the total monthly emoluments, excluding any allowance declared exempt from attachment.
If a warrant of attachment of salary is returned 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 private employees is also possible by an order of the court.
- Attachment of Partnership Property
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 attach the interest of one partner in the firm if the decree is against him alone, under Order XXI Rule 49 CPC.
If the decree is against a firm, the execution is possible against any property of the partnership or against anyone admitted on the pleadings as a partner or anyone who failed to appear before the court upon being served with summons. No partner can be made liable unless he is served with a summons to appear and answer.
- Claims and Objections 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 prejudiced. The parties to the suit can file an application under Section 47 of the CPC, whereas third parties can file either a suit for claims or an application under Order XXI Rule 58 of the CPC. The court shall hear the person, adjudicate upon the claim and allow or disallow it.
When a claim petition is dismissed, it cannot be restored under Order IX Rule 13 of the CPC, but it can be restored under Section 151 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, under Order XXI Rules 64 to 88 CPC.
The court has authority to sell only so much of the property of the judgment debtor as is 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 a 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, and determine the date and place of sale in an order. The decree holder will have to pay the estimated expenses for the sale and the 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 fifteen days in case of immoveable property and seven days in case of moveable property; non-compliance with which will render the sale void.
The application should include details of the property to be sold or the portion thereof, the revenue assessed on the estate, encumbrances to which the property is liable, the amount for which sale is ordered, the valuation of both parties and other material particulars. Proclamation should be published in a local newspaper or by beat of drums.
A 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 sign the sale memorandum.
- Court Can Postpone Sale to Allow Debtor to Raise Funds
The court can postpone sale to allow time for the judgment debtor to realise the decretal dues by private alienation of property such as sale, mortgage, or lease. The court can issue a certificate for mortgage, lease, or sale if the judgment debtor applies for it, under Order XXI Rule 83 CPC.
Immediately after the sale the depositor must deposit 25 per cent of the purchase money and the balance amount within fifteen days from the date of the sale, under Order XXI Rules 84 to 87 CPC.
- Setting Aside the Sale
A person having any interest in the property can apply for setting aside the sale under Order XXI Rules 89 to 92 of the CPC on the following grounds:
- On deposit of the purchase price specified in the sale proclamation (Rule 89);
- On the ground of material irregularity or fraud in publishing and conducting the sale (Rule 90);
- When there is substantial injury due to material post-sale irregularity or fraud in conducting the sale (Rule 90); and
- When the decree holder has no saleable interest (Rule 91).
Such an application has to be made within the limitation period of sixty days only. Pre-sale irregularities can be remedied, under Section 47 of the CPC.
If the sale is set aside by the court, the purchaser of the property will get back the purchase money, under Order XXI Rule 93 CPC.
- Deposit of Price After Sale
Immediately after concluding the process of sale, the person declared to be the purchaser must deposit twenty-five per cent of the purchase money.
The balance amount must be paid within fifteen days from the date of the sale; the failure to do so will invalidate the sale, under Order XXI Rules 84 to 87 CPC.
- 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, under Order XXI Rule 92 CPC.
When the sale becomes absolute the court shall grant a 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 issue of the sale certificate, all particulars of the property and the nature of interest sold, under Order XXI Rule 94 CPC.
A copy of the sale certificate will be transmitted to the proper registering office where the property is situated. 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. The purchaser’s title relates back to the date of sale and not the date of confirmation of the sale, under Section 65 of the CPC.
In case of moveable property, the court will issue an order vesting the sold property in the purchaser, under Order XXI Rule 95 CPC.
- Delivery of Property
When the auction purchaser, pursuant to a sale certificate and after confirmation of the sale by the court, applies for being put in possession of the property, the court will issue a Warrant for Delivery of the property on payment of the required process fee, under Order XXI Rules 96 or 97 CPC.
Delivery is to be made by affixing a copy of the Warrant in some conspicuous place on the property.
- Rateable Distribution of Assets
Rateable distribution is the proportionate distribution of the proceeds of an execution sale of the property of the judgment debtor, among two or more decree holders by the court, when the proceeds are held by it. This 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 on government debts over other debts when the amount is left with the court. However, the government cannot lay claim after the distribution has been made.
The section allows filing of a suit for refund of any asset wrongly distributed to a person who is not entitled to receive it. The cause of action arises when the amount is paid. The period of limitation for such a 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. The 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 equity 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 the obtaining of possession of property sold under execution by the court without just cause, the decree holder or auction purchaser can make an application to the court, under Order XXI Rule 97 CPC.
The court can detain the person in civil prison for a term of not more than thirty days. The court can also direct that the decree holder or purchaser be put in possession of the property.
- Role of the Police 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 remain inactive, the aggrieved party can approach the High Court under Article 226 of the Constitution for a direction to the police for discharge of their duty.
Conclusion
Execution of a decree is the most crucial phase of litigation in achieving the fruits of laborious and protracted litigation by the parties in dispute. A judgment would remain as a worthless piece of paper unless it is implemented in its true spirit.
The Kerala High Court and the Supreme Court have consistently emphasised the duty of the executing court to act swiftly and effectively to enforce decrees, while at the same time balancing the rights of the judgment debtor.
