EXECUTION OF DECREE UNDER ORDER 21 OF CPC

EXECUTION OF DECREE UNDER ORDER 21 OF CPC 1908, EXPLAINED BY DR. TUSHAR MANDLEKAR IN EPISODE 75.
Execution of Decrees and Orders (Order XXI, Rules 1-106)
Introduction: The term “execution” has not been defined in the Code. In its widest sense, the expression “execution” signifies the enforcement or giving effect to a judgment or order of a Court of justice. Stated simply, “execution” means the process for enforcing or giving effect to the judgment of the Court. In other words, execution is the enforcement of decrees and orders by the process of the Court, so as to enable the decree- holder to realise 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. (See: Overseas Aviation Engg. (G.B.) Ltd. In re, (1962) 3 WLR 594)
In Ghan Shyam Das v. Anant Kumar Sinha, (1991) 4 SCC 379, dealing with the provisions of the Code, relating to execution of decrees and orders, the Hon’ble Supreme
Court stated:
“So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of order XXI of the Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with admin- istration of justice, is expected to
do better.”
In Satyawati v. Rajinder Singh & Anr., (2013) 9 SCC 491, the Hon’ble Supreme Court held that there should not be unreasonable delay in execution of a decree because the decree-holder is unable to enjoy the fruits of his success by getting the decree executed,
the entire effort of successful litigant would be in vain.
Scheme of Execution: Important Heads
Courts which may Execute Decrees
Application for Execution
Stay of Execution
Mode of Execution
Arrest and Detention
Attachment of Property
Questions to be determined by Executing Court
Adjudication of Claims
Sale of Property
Delivery of Possession
Distribution of Assets
General Rules (Civil and Criminal), 2018:
Provisions relating to Execution of
Decrees:- Section 37: Definition of Court which passed a decree
The section enlarges the scope of the expression “court which passed a decree” with the object of giving greater facilities to a decree-holder to realise the fruits of the decree passed in his favour.
(See: Ramankutty Guptan v. Avara, (1994) 2 SCC 642)
B. Section 38: Court by which decree may be executed
A decree may be executed either by the Court which passed it, or by the Court to
which it is sent for execution.
Where the court of first instance has ceased to exist or ceased to have jurisdiction to execute the decree, the decree can be executed by the court which at the time of making the execution application would have jurisdiction in the matter. (See:
Merla Ramanna v. Nallaparaju, AIR 1956 SC 87)
C. Transfer of Decree for Execution: Sections 39-42, Order XXI Rules 3-9
Section 39 provides for the transfer of a decree by the Court which has passed it
and lays down the conditions therefor.
As a general rule, the Court which passed the decree is primarily the court to execute it, but such court may send the decree for execution to another court {1} The judgment-debtor actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such court; or {2} The judgment-debtor does not have any property sufficient to satisfy the decree within the local limits of the jurisdiction of the court which passed the decree but has property within the local limits
E. Section 42: Powers of Executing Court
It expressly confers upon the court executing a decree sent to it the same powers the same powers as if it has been passed by itself. It is thus the power and duty of the executing court to see that the defendant gives the plaintiff the very thing the decree directs and nothing more or nothing less. (See: Jai Narain v. Kedar Nath,
AIR 1956 SC 359 at p. 363)
Other powers were:
Power to send the decree for execution to another Court U/s 39;
Power to execute the decree against the legal representative of the deceased
judgment-debtor U/s 50;
• Power to order attachment of a decree.

[gitanjalisonerao]

Geetanjali R sonerao Advocate in the Gujarat High court Ahmedabad. Very good. Nice explanation.thank you.

[chandraranjani]

Sir,
I Have understood execution is a tiring task. Thanks fo

[chandraranjani]

My brother has decree but he is not able to execute since three years

[Indialeadsoverall]

Sir what if decree holder fails to file execution within 12year ? Is there any remedy

[ansunibatein]

Section 9 dicree ke adhar par me execution file karke kya meri wife property me hissa pa sakta hu