INJUNCTION(XXXIX)

Introduction

An injunction is a prohibitive writ issued by a court of equity, at the suit of a party

complainant, directed to a party defendant in the action, or to a party made a
defendant for that purpose, forbidding the latter to do some act, or to permit his
servants or agents to do some act, which he is threatening or attempting to
commit, or restraining him in the continuance thereof, such act being unjust and
inequitable, injurious to the plaintiff, and not such as can be adequately redressed
by an action fit law.

For example, if it so happens that a person is demolishing a building you have

possible claims on, you may ask the competent court to order such person to not
demolish the building until the trial for the claim of the building is complete and
judgement goes in his favour.

The law of injunction has been provided for by the Specific Relief Act, 1963
(hereinafter, the Act), and is also regulated by the Code of Civil Procedure, 1908
in India.
Types of Injunctions in the Indian Law

Generally speaking, there are two types of injunctions under the act[2], as
mentioned below:

 Temporary Injunction

 Perpetual/Permanent Injunction

Both the types of injunctions are discussed below.

Temporary Injunction

Temporary injunctions, as the name suggests, are the injunctions that are given
for a specific period of time or until the court gives further order regarding the
matter in concern. They can be obtained during any stage of the trial and are
regulated by the Code of Civil Procedure (CPC), 1908[3]:

Section 94: The section provides for supplemental proceedings, to enable the
court to prevent the ends of justice from being defeated. Section 94(c) states that
a court may grant temporary injunction and in case of disobedience commit the
person guilty thereof to the civil prison and order that his property be attached
and sold. Section 94(e) of the Code enables the court to make interlocutory orders
as may appear to it to be just and convenient.

Section 95: If it is found by the court that there were no sufficient grounds to
grant the injunction, or the plaintiff is defeated in the suit, the court may award
reasonable compensation to the defendant on his application claiming such
compensation.

Order XXXIX:

Rule 1: It enlists the situations when a court may grant temporary injunction.
These are:

Any property in dispute in a suit is in danger of being wasted, damaged or

alienated by any party to the suit, or wrongfully sold in execution of a decree, or

the defendant threatens, or intends, to remove or dispose of his property with a

view to defrauding his creditors,

the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit.

Rule 2: It provides that an interim injunction may be granted for restraining the
defendant from committing a breach of contract or other injury of any kind to the
plaintiff.

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Rule 3: It states that a court shall direct a notice of application to the opposite
party, before granting the injunction to the plaintiff. However, if it seems to the
court that the purpose of the injunction would be defeated by the delay, it may
not provide the notice.

Rule 4: It provides for vacation of already granted temporary injunction.

Rule 5: It states that an injunction directed to a corporation is binding not only on

the corporation itself, but also on all members and officers of the corporation
whose personal action the injunction seeks to restrain.
In the M. Gurudas and Ors. case[4], the Hon’ble Supreme Court of India has
opined, “while considering an application for injunction, the Court would pass an
order thereupon having regard to prima facie, balance of convenience and
irreparable injury.”

1. Prima Facie Case:

Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N.
Banerjee[5], while discussing a the meaning of the ‘prima facie’ case, the court
said:

“A prima facie case does not mean a case proved to the hilt but a case which can
be said to be established if the evidence which is led in support of the same were
believed. While determining whether a prima facie case had been made out the
relevant consideration is whether on the evidence led it was possible to arrive at
the conclusion in question and not whether that was the only conclusion which
could be arrived at on that evidence.”

Prima facie case is a must to be eligible to obtain a temporary injunction.

However, it is not sufficient and temporary injunction cannot be granted if the
damage that will be caused if the injunction is not given is not irreparable.[6]

2. Irreparable Injury:

‘Irreparable injury’ means such injury which cannot be adequately remedied by

damages. The remedy by damages would be inadequate if the compensation
ultimately payable to the plaintiff in case of success in the suit would not place
him in the position in which he was before injunction was refused.[7]

3. Balance of Convenience:

In the case of Anwar Elahi[8], the court has clearly explained the meaning of
‘balance of convenience’. According to the court:

“Balance of convenience means that comparative mischief or inconvenience

which is likely to issue from withholding the injunction will be greater than that
which is likely to arise from granting it. In applying this principle, the Court has
to weigh the amount of substantial mischief that is likely to be done to the
applicant if the injunction is refused and compare it with that which is likely to
be caused to the other side if the injunction is granted.”

Permanent Injunction
A permanent injunction can be granted by the court by passing a decree made at
the hearing and upon the merits of the suit. Once such decree is passed, the
defendant is permanently prohibited from the assertion of a right, or from the
commission of an act, which would be contrary to the rights of the plaintiff.[9]

When can a permanent injunction be granted?

A permanent injunction may be granted:

a. To the plaintiff in a suit to prevent a breach of an obligation existing in his
favour, whether implicit or explicit.[10] However, in a case where such an
obligation arises out of a contract, the court follows the rules as specified by
Chapter II of the Act.[11] Chapter II, under Section 9 provides that a person may
claim relief in respect to a contract, by pleading in his defense, any of the ground
available to him under any law relating to contracts.

b. In a case where the plaintiff invades or threatens to invade the the plaintiff’s
right to, or enjoyment of, property, the court may grant a permanent injunction
where:

The defendant is trustee of the property for the plaintiff;

there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;

the invasion is such that compensation in money would not afford adequate relief;

the injunction is necessary to prevent a multiplicity of judicial proceedings.[12]

Mandatory Injunction

If the court finds it necessary and within its capability, to compel the performance
of an act, to prevent the breach of an obligation, it may do so granting a mandatory
injunction to the plaintiff, compelling the defendant to perform the requisite
acts.[13]

Damages In Lieu of, or in Addition to Injunction

If the plaintiff claims for any additional damages along with the injunction sought
for, either perpetual or mandatory, or in substitution of the said injunction, the
court may award him such damages, if it thinks fit[14]. If no damages have been
claimed, the court may allow the plaintiff to make the required amendments to
the plaint and claim damages[15].

However, it is highly recommended to claim damages in the plaint before

submitting it, as permission for further amendments rests solely at the discretion
of the court.

The dismissal of a suit to prevent the breach of an obligation existing in favor of

the plaintiff bars his right to sue for damages for such breach.[16]

Injunction to Perform Negative Agreement

The court can grant an injunction to not do certain acts, which are prohibited by
the contract to do. The court may do so even if it is unable to compel the
performance of the affirmative terms of the contract, i.e. the terms that requires
the defendant to do (perform) certain acts. However, it is subject to the fact,
whether the plaintiff has performed the terms of the contract binding on him or
not. Non performance by the plaintiff dis-entitles him from obtaining such an
injunction.[17]

Case Laws Regarding Permanent Injunction

In the case of Jujhar Singh vs. Giani Talok Singh[18] where a permanent
injunction was sought for by a son to prevent his father who happened to be the
Karta of the Hindu Undivided Family (HUF), from selling the HUF property was
set aside. It was not maintainable because the son, also a coparcener, had got the
remedy of challenging the sale and getting it set aside in a suit subsequent to the
completion of the sale.

On the other hand, granting the injunction sought would allow the son to use the
injunction to prevent the father from selling the property even if he is compelled
to do so, due to legal necessities.

Where in the case of Cotton Corporation Of India vs. United Industrial Bank, an
injunction was sought for to restrain the defendants from presenting a winding-
up petition under the Companies Act, 1956 or under the Banking Regulation Act,
1949, the court dismissed the petition as it was not competent to grant, as a relief,
a temporary injunction restraining a person from instituting a proceeding in a
court not subordinate to it.

The court here was of the view that if a perpetual injunction cannot be granted
for the subject matter of the case under Section 41(b) of the act, ipso facto
temporary injunction cannot be granted.[19]

Grounds for Rejection of an Application for Injunction

On the following grounds, an injunction cannot be granted:

To restraint a person from prosecuting a pending judicial proceeding, unless it is

to prevent multiplicity of the proceeding.

To restraint a person from instituting or prosecuting a judicial proceeding in a

court, where the injunction is sought from a court subordinate to that court.
To restrain any person from applying to any legislative body.

To restrain any person from instituting or prosecuting any proceeding in a

criminal matter.

To prevent the breach of a contract the performance of which would not be

specifically enforced (Illustration: a contract between a master and servant,
requiring the servant to render personal services to the master cannot be
specifically enforced by the master or the servant. Hence, an injunction cannot be
granted in this situation)

Where it is not reasonably clear that an act it nuisance, to prevent such an act on
the ground of nuisance.

To prevent a continuing breach in which the plaintiff has acquiesced, as the

general rule is that an acquiescence is an implied consent by remaining silent.

Where except in the case of breach of trust, equally efficacious relief can certainly
be obtained by any other usual mode of proceeding.

When the conduct of the plaintiff or his agents has been such as to dis-entitle him
to the assistance of the court.

When the plaintiff has no personal interest in the matter.

INTERLOCUTORY ORDERS:

Introduction

To meet the ends of justice and to render timely justice to the parties, the
mechanism of filing Interlocutory applications is to an extent indispensable in
civil proceedings.
“Interlocutory application” means an application to the Court in any suit, appeal
or proceeding already instituted in such Court, other than a proceeding for
execution of a decree or order. The orders which are passed in those applications
are called as interlocutory orders[1]. Webster’s New World Dictionary defines
‘interlocutory’ as order other than a final decision. Once an action has been
commenced all subsequent applications are referred to as interlocutory
applications.

The prerogative of a court while dealing with an interlocutory application is not

to delve into serious questions of law which demands detailed arguments and
serious consideration and therefore the courts do not go into the facts the
resolution of which might end up in the determination of the original suit.

The provision dealing with the incidental proceedings is contained under part III
Of the code of civil procedure[2]. But such applications are moved under various
provisions of the Code of civil procedure, 1908 which include applications for
appointment of Commissioner, Temporary Injunctions, Receivers, payment into
court, security for cause, and etc. In fact, there are in total of 382 different
nomenclature of interlocutory applications, as provided on the Hon’ble Supreme
court’s website[3].

Sec 141 of CPC provides, that the procedure provided in the Code of Civil
Procedure, in regard to suit shall be followed, as far as it can be made applicable,
in all proceedings in any court of civil jurisdiction, therefore the procedure with
regard to such applications is the same as that of original suit, in matters like
recording of evidence, examining witnesses etc.

In this write-up, an attempt has been made to cover various aspects of

Interlocutory applications and orders passed pursuant to such applications. It
discusses various provisions under the C.P.C and by referring to various
judgments it tries to elucidate upon the current position of law.

Interlocutory applications for Amendment in pleadings

Principles which govern the granting or disallowing of amendments under Order

6 Rule 17 CPC was discussed in North Eastern Railway Administration,
Gorakhpur v.Bhagwan Das[4]. The court, in this case, stated that Order 6 Rule
17 of the C.P.C postulates amendment of pleadings at any stage of the
proceedings.

Further in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil[5] which still

holds the field, it was held that; “ all amendments ought to be allowed which
satisfy the two conditions: of not working injustice to the other side, and of being
necessary for the purpose of determining the real questions in controversy
between the parties.

Amendments should, therefore, be refused only where the other party cannot be
placed in the same position as if the pleading had been originally correct, but the
amendment would cause him an injury which could not be compensated in costs.”

Although Order VI Rule 17 permits amendment in the pleadings “at any stage of
the proceedings”, but a limitation has been embedded by means of the proviso to
the fact that no application for amendment shall be allowed after the trial is
commenced. Reserving the Court’s jurisdiction to order for allowing the party to
amend pleading on being satisfied that in spite of due diligence the parties could
not have raised the matter before the commencement of trial[6].

Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may)
and leaves it to the court to order the amendment of pleading. The second part is
mandatory (shall) and prompts the court to allow all amendments which are
necessary for the purpose of determining the real question in controversy between
the parties.[7]

The proviso, therefore, to an extent has curtailed absolute discretion to allow

amendment at any stage[8].

Interlocutory Application at the stage where a case is posted for judgment

In Laxminarayan Enterprises vs Laxminarayan Textile[9] the learned single judge

of Karnataka High court allowed the applications under Sub-Rule (4) of Order
XVIII and Order IX Rule 6 C.P.C and observed that the Court may for the reasons
to be recorded, direct or permit any party to examine any witness at any stage.

But after the CPC (Amendment) Act, 1999, Sec 17-A of order XVIII was omitted
which allowed the production of evidence at any stage. The decision rendered by
the division bench of the Karnataka High court in Rabiya Bi Kassim M Vs. The
Country-Wide Consumer Financial Service Ltd[10] has settled the position with
respect to the production of evidence at any stage of the proceedings. Once the
matter has been finally heard and posted for judgment, as held by the Supreme
Court in Arjun Singh vs Mohindra Kumar[11] nothing is required to be done by
the Court except to pronounce the judgment, and therefore the decision in
Laxminarayan enterprises’ has become a nullity.

Application of ‘Res judicata’ in interlocutory applications

As an interlocutory application does not encroach upon the merits of the

controversy between parties an order pursuant to such applications cannot be
regarded as a matter affecting the trial of the suit.

An interlocutory order in like of an issue of injunction, or appointment of a

receiver, or an order of attachment before judgment cannot be viewed as an issue
affecting the trial of the suit. Therefore where the question arose that whether
adding a defendant to suit by amending the pleadings was a matter affecting the
trial of the suit, the Hon’ble Rajasthan High Court stated that “Such an order
could not be taken to be a step in the trial of the suit. Whether a party should or
should not be impleaded did not encroach on merits of the controversy between
parties. It is a matter of a formal nature and could not in any way determine their
respective rights[12]”

Until and unless the issue is not decided on merits, the plea of principles of res
judicata has no application, as per the judgment reported in Erach Boman Khavar
vs Tukaram Sridhar Bhat & Ors, wherein the Hon’ble Supreme Court held as
follows:

“It is clear as crystal that to attract the doctrine of res judicata it must be manifest
that there has been a conscious adjudication of an issue. A plea of res judicata
cannot be taken the aid of unless there is an expression of an opinion on the
merits. It is well settled in law that principle of res judicata is applicable between
the two stages of the same litigation but the question or issue involved must have
been decided at an earlier stage of the same litigation.”

An order staying the suit under Section 10, C.P.C. does not prevent the Court
from making interlocutory orders such as orders for a Receiver or an injunction
or an order for attachment before judgment[14].

As the interlocutory orders do not decide any matter in issue arising in the suit
nor do they put an end to the litigation and do not decide the legal rights of the
parties to the litigation, the principle of res judicata does not apply to the findings
on which these orders are based. If a similar application is made for similar relief
on the basis of same facts after the earlier application has been disposed of, the
court would be justified in rejecting the application as an abuse of process of the
court. But when there are changed circumstances the court is perfectly justified
in entertaining a second application[15].

Interlocutory orders
Interlocutory orders are passed by the courts to prevent irreparable harm from
occurring to a person or property during the pendency of a lawsuit or proceeding.

Rules 6 to 10 of Order 39 mention certain interlocutory orders[16], which include

the court’s power to order the interim sale of movable property, to order the
detention, preservation or inspection of any property which is the subject-matter
of such suit. Similarly, when the land in the suit is liable to Government revenue
or is tenure liable to the sale and the party in possession neglects to pay the
revenue or rent, the court may order any other party to the suit in case of sale of
the land to be put in immediate possession of the property.

Revision of Interlocutory orders

The 1999 amendment to the CPC added a proviso to Section 115 which reads:

“Provided that the High Court shall not, under this Section, vary or reverse any
order made, or any order deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made in favor of the party
applying for revision, would have finally disposed of the suit or other
proceedings.”

In Tek Singh vs. Shashi Verma[17], the interlocutory application filed under
Order 39 Rule 1 CPC was dismissed by Trial Court holding that the relief asked
for could not be granted as it would amount to decreeing the Suit itself. The
Appellate Court dismissed the appeal and in the revision petition filed under
Section 115 CPC, the High Court set aside the concurrent findings of fact and
allowed it. The Supreme court set aside the ruling of the appellate court observing
that “every legal canon has been thrown to the winds by the impugned judgment”
and restored the judgment of the Courts below.

Therefore the position of law is well settled and hence, revision petitions can lie
against an interlocutory order with the sole purpose to correct jurisdictional errors
only[18].
Therefore an order granting or refusing to grant amendment of pleadings is not
revisable under Section 115 of the Code of Civil Procedure, particularly after its
amendment in the year 2002[19].

Appeals against interlocutory orders

Generally speaking, no appeal lies against an interlocutory order, but certain

interlocutory orders can still be challenged in appeal against decree on the ground
that such orders are of such character as would alter the decision of the court on
merits and hence, can be challenged.

Section 105 reads as:-“Save as otherwise expressly provided no appeal shall lie
from any order made by a court in the exercise of its original or appellate
jurisdiction, but, where a decree is appealed from, any error, defect or irregularity
in any order affecting the decision of the case, may be set forth as a ground of
objection in the memorandum of appeal.”[20]:

While the first part of the sub-section states that no appeal would lie against any
order unless they fall into any of the provisions contained in Section 104 and
Order 43, R. 1 the second part states that objections can be raised against the
interlocutory order in the memorandum of appeal filed against the decree in the
suit in which the interlocutory order was made, if the error, defect or irregularity
in making the same affects the decision of the case on the merits.

The error, defect or irregularly within the meaning of Section 105, therefore, must
mean an error, defect or irregularity in procedure in law and not in a matter of
fact.
Appeal under latter patents

Clause 15 of Letters Patent [21] provides for intra-court appeals against the
judgment of Single Judge of the High Court. The right to file an L.P.A depends
upon whether or not the decision of the Single Judge appealed from affects the
merits of the question between the parties and their valuable rights.

Order must be a ‘Judgement’

In order to ascertain whether an order to is a ‘judgment’ or an ‘interlocutory

order’, it must of the parties have an effect of affecting the rights of the parties
and further, it would also depend on whether or not, it has finally decided the
rights. For an order to be a ‘judgment’, it is not always necessary that it should
put an end to the controversy or terminate the suit. An ‘interlocutory order’
determining the rights of the parties in one way or other is also a ‘judgment’.

In Life Insurance Corporation of India vs Sanjeev builders Pvt. Ltd. and ors[22].,
the court held that the order allowing the application[23] impleading respondent
as assignee after 27 years of the filing of the suit vitally affects the valuable rights
of the appellant. The order allowing amendment of the plaint by impleading
respondent No.3 as ‘Plaintiff No.3’ decides a vital question which concerns the
rights of the parties and hence is a ‘judgment‘ to maintainable under the Letters
Patent Appeal.
Further, in Shah Babulal Khimji v. Jayaben D. Kania and Anr[24], the above
point was reiterated as the Hon’ble court observed that ‘whenever a trial Judge
decides a controversy which affects valuable rights of one of the parties, it must
be treated to be a judgment within the meaning of the letters patent’.

In the course of the trial a trial Judge may pass a number of orders whereby some
of the various steps to be taken by the parties in prosecution of the suit may be of
a routine nature while other orders may cause some inconvenience to one party
or the other, e.g., an order refusing an adjournment, an order refusing to summon
an additional witness or documents, an order refusing to condone delay in filing
documents, after the first date of hearing an order of costs to one of the parties
for its default or an order exercising discretion in respect of a procedural matter
against one party or the other.

It was thus held that –

“Such orders are purely interlocutory and cannot constitute judgments because it
will always be open to the aggrieved party to make a grievance of the order passed
against the party concerned in the appeal against the final judgment passed by the
trial Judge[25]”

Interlocutory applications – an inbuilt mechanism to cause the delay?

Delay in dispensing justice is a malaise that has frustrated the judiciary of this
country and which has created a considerable outcry from the diligent litigants,
stay of proceedings is one of the specially inbuilt delay mechanisms in civil cases.
The delay is oftentimes due to protracted arguments on interlocutory applications.
This practice ends up affecting the original suit and therefore speedy disposal
ends up becoming a farce as the courts keep on entertaining endless arguments
on motions for interim reliefs.

The practice of filling I.As has become a matter of routine for the lawyers and is
resorted to many a time to thwart the proceedings in a suit or to evade the
compliance of any order passed against such party. There is an umpteen number
of cases where unscrupulous litigants take undue advantage by invoking the
jurisdiction of the Court by Filing interlocutory applications. Frivolous litigation
clogs the wheels of justice making it difficult for the courts to provide speedy
justice to the genuine litigants. A lot of judgments or orders of the Court are not
permitted to acquire finality. It is one of the serious issues concerning the sanctity
and credibility of the judicial system in general.

Frivolous applications and sanctions attached against it

The present system of imposing meager costs in civil matters, no doubt, is wholly
unsatisfactory and does not act as a deterrent to tactics like “buying-time”, or
evading compliance of court orders. More realistic approach relating to costs may
be the need of the hour[26].

The law commission of India in its report[27] had proposed amendments in CPC
to curb such practice by imposing heavy costs on such applicants.
“Section 35A (Compensatory costs for false or vexatious claim/defense) should
be recast as set out in paragraph 8.19 to have a better check against false and
frivolous litigation. The thrust of the proposed amendment is to raise the ceiling
from Rupees three thousand to Rupees One lakh “

An important principle was laid down in Grape vs. Loam[28] and is still followed
even now in the United Kingdom in recent cases. The headnote in the above case
reads thus: “Repeated frivolous applications for the purpose of impeaching a
judgment having been made by the same parties, the Court of Appeals made an
order prohibiting any further application without leave of the Court.

Even the law commission has tried to address the growing menace of vexatious
litigations[29] in the high courts and courts subordinate to high courts. The Law
Commission on ‘Prevention of Vexatious Litigation’ in our High Courts and
Courts subordinate to the High Courts. Earlier, a law on this subject was enacted
in the former State of Madras[30] and has been in force as the, and also in the
State of Maharashtra[31] wherein it is called the 1971 but similar enactments
have not been enacted in the other States.

There are not much of riders on such unscrupulous litigants as even if a party
doesn’t appear on the fixed date, and therefore arrives late he is still entitled to
have his suit or application restored upon showing sufficient cause or on payment
of costs[32].

The practice of filing frivolous applications is not just limited to ordinary litigants
but the same is also done by people occupying high posts. Another example of
obstructive litigation undertaken to avoid responsibility is one of the then Chief
Minister of Bihar, Mr. Nitish Kumar. An interlocutory application was filed in a
copyright infringement suit by Nitish Kumar under Order I Rule 10(2) of the
Code of Civil Procedure, 1908, seeking to strike off his name from the array of
Defendants, the Delhi High Court finding the application frivolous had imposed
cost of Rs.20,000 on the Bihar Chief Minister for filing the application[33].

Repeated interlocutory applications is clearly an abuse of the process of law and

would have the far-reaching adverse impact on the dispensation of justice.

Indian Council for Enviro-Legal Action Vs UOI and ors

A classic example of keeping the litigation alive by filing I.As can be found in
the case of Indian Council for Enviro-Legal Action Vs UOI and others.[34] Very
strange and extraordinary litigation where even after fifteen years of the final
judgment of the court the litigation was intentionally kept alive by filing one
interlocutory application or the other in order to avoid compliance of the
judgment. The applicants in this case through Interlocutory Applications tried to
evade the payment of the amounts as remedial measures by reopening issues
already settled by the Hon’ble Supreme court. Therefore the court on finding
these interlocutory applications being totally devoid of any merit accordingly
dismissed with costs of Rs. 10 lakhs in both the Interlocutory Applications.
EXECUTION OF DECREES(XXI)

INTRODUCTION

Execution is the last stage of any civil litigation. There are three stages in
litigation:

1. Institution of litigation.

2. Adjudication of litigation.

3. Implementation of litigation.

Implementation of litigation is also known as execution. A decree will come into

existence where the civil litigation has been instituted with the presentment of the
plaint. The decree means operation or conclusiveness of judgment.
Implementation 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.[i]

CHAPTER 1: EXECUTION IN GENERAL

Execution: Meaning

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.[ii] Simply “execution” means the
process for enforcing or giving effect to the judgment of the court.[iii] 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.

Illustration:

A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is
the decree-holder. B is the judgment-debtor, and the amount of Rs 10,000 is the
judgment- debt or the decretal amount. Since the decree is passed against B, he is
bound to pay Rs 10,000 to A. Suppose in spite of the decree, B refuses to pay the
decretal amount to A, and A can recover the said amount from B by executing
the decree through judicial process. The principle governing the execution of
decree and orders are dealt with in Sections 36to 74 ( substantive law) and Order
21 of the code( procedural law).

Supreme Court in Ghanshyam Das v. Anant Kumar Sinha[iv] dealing with

provision of the code relating to execution of decree and orders, stated, “ so far
as the question of executability of a decree is concerned, the Civil Procedure Code
contains elaborate and exhaustive provisions for dealing with it in all aspects. The
numerous rules of Order 21 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 inadequate measures
and appropriate time, the answer is a regular suit in the civil court.
CHAPTER 2: PRINCIPLES WITH REGARD TO EXECUTION OF DECREE
AND ORDER

 Provision of CPC relating to execution of decree and order shall be made

applicable to both Appeal and Sue.

 A decree may be executed by the court which passed the judgment and
decree or by some other court which is having competency to implement
the judgment passed by such other court.

 The court which passed the decree may send it for execution to other court
either on application of the applicant (decree-holder) or by the court itself.

 A court may order for execution of decree on the application of decree on

the application of decree holder (a) by delivery of any property which was
in possession of judgment-debtor and decree has been specifically passed
concerning such property (b) by attachment and sale of the property of the
judgement-debtor (c) by arrest and detention (civil imprisonment) (d) by
appointing a receiver (e) in such other manner which depends upon nature
of relief granted by the court.

 Upon the application of decree-holder, the court may issue “percept” to any
other court which is competent in that regard.

 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 a separate
suit.

 Where a decree is passed against a party as the “legal representative” of a

deceased person and decree is for payment of money out of the property of
deceased person, it may be executed by attachment and sale of any such
property.
  A judgment-debtor may be arrested at any time and on any date shall
required to be brought before the court which has passed the decree and his
detention may be in civil prison of the district where decree shall have to
be executed.

 Where immovable property has been sold by the court in execution of a

decree such sell shall be absolute. The property shall be deemed to be
invested in the favour of purchaser, and the purchaser shall be deemed as
a party to litigation.[v]

 The court to which decree is sent for execution shall require certifying to
the court which has passed decree stating the manner in which decree has
been implementing concerning the fact of such execution.[vi]

CHAPTER 3. PROCEDURE IN EXECUTION:

Section 51 to 54 talks about the procedure in execution or mode for execution

Section 51: this section gives the power to the court to enforce the decree in
general. This section defines the jurisdiction and power of the court to enforce
execution. Application for execution of the 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 the decree. The court may execute decree as per
the choice prayed by the decree-holder or as the court may think fit.

Mode of executing decree under section 51:

(a). By delivery of any property specifically decreed. Property may be movable

or immovable (b). By attachment and sale of the property or by sale without
attachment of the property. Under clause (B) of Section 51, it is within the power
of the court to attach the property if it is situated within its jurisdiction.
(c). Court can execute decree by mode of arrest and detention. no execution of
decree by arrest or detention of judgment-debtor unless reasonable opportunity is
given in the form of show cause notice as for why he should not be imprisoned.

(d). It can be executed by appointing a receiver. Within the purview of this

section, it is permissible to appoint decree-holder himself as the receiver of the
judgment-debtors land.

(e). 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).[vii]

Section 52: Enforcement of decree against Legal representative

Section 52 deals with a case where the decree is passed against the legal
representative of the judgment-debtor.

Section 52 (1) empowers a creditor to execute his decree against the property of
deceased in the hands of legal representative so long as it remains in his hand.
For application of this clause, the decree should have passed against the party as
the legal representative of the deceased person, and it should be for the payment
of money out of the property of the deceased.

Section 52 (2) empowers a creditor to execute his decree against the legal
representative personally if he fails to accounts for the properties received by him
from deceased person.

Exception to section 52: Court can implement the decree against the personal
property of the legal representative provided if he is avoiding, neglecting or
evading to make the payment from the property of deceased. Where he has mis-
utilized the property of the deceased and where the legal representative has
alienated the property of the deceased person.[viii]

Section 53: Liability of ancestral property

No legal representative should be held personally accountable where the suit has
been filed against a joint Hindu family unless he has received some property of a
joint Hindu family.

Under pious obligation, if has received the property of joint Hindu family then
will be held liable. Where the decree has been passed against Karta, no execution
be made against the son under pious obligation if the decree is passed after
partition. Event after partition a son can be held liable if the suit was pending
before partition.

The son will be held accountable if after the death of Karta the decree has been
executed and son has distributed the property of Karta among themselves. The
member of the joint Hindu family will be held liable if Karta has taken debt for
moral purpose or family purpose.

The nature of suits determines how decree should be implemented.

Illustration: a promissory note has been executed by the father for the purpose of
borrowing money. After the death of the father, the creditor instituted proceeding
against son.

Where suit is filed basing on promissory note first it will be seen that whether suit
is maintainable or not- if it is filed within three years then the suit will be
maintainable. General rule is that son will be held liable if they have received
ancestral property.

Where the son is not having knowledge about the execution of the promissory
note, in such case will not be held liable even though has received the ancestral
property.[ix]

Section 54: Partition of estate or separation of share

Section 54 comes into play when a decree has been passed for partition, or for the
separate possession of a share of an undivided state paying revenue to the
government, that is the partition of the state or share will be made by the collector.
However if the collector refuses to make the partition of the revenue paying
property, the civil court can do so.[x] To attract the provision of this section it is
not necessary that the plaintiff should ask for the division of government revenue.

Section 54 deals with a case where though the civil court has the power to pass a
decree yet it is not competent to execute the same. Under this section, the
execution of decree shall be made by collector.

CHAPTER 4: PROCESS FOR EXECUTION

Order 21 rule 24 and 25 talks about the process for execution.

Rule 24: process for execution

The court has inherent power to defer the issue of process as envisaged
under Rule 24 and can give time to judgment-debtor in appropriate cases.

Rule 24 prescribes the procedure in case of execution of decree. In these matters,

the [xi]court exercises judicial discretion, which cannot be interfered with by the
district judge by issuing administrative order.

According to 24(3), execution must be completed by the date specified on the

process for the purpose- Warrants for delivery of possession, therefore, ceased to
be executable after the expiry of the date appearing on the warrant.

After the process of execution is issued, Rule 17 of Order 21 cannot be invoked

for amendment of execution application. If the amendment seeks to change the
nature of execution, the power underSection 151 and 153, also cannot be invoked.

Execution proceeding on the death of the decree-holder:-

Possession certificate under Section 214 of Indian Succession Act 1925, will not
be necessary for the continuation of proceeding by his legal Heirs, even if legal
Heirs are not brought on record, the execution proceeding will not abate.
Delivery of possession to the decree-holder without notice to Judgement-debtor
is not proper:

Application by judgment-debtor for re-delivery of the possession on the ground

that he had no notice of the execution proceedings, dismissed by the trial court,
however, allowed by the High Court in revision, held, re-delivery of possession
to the judgment-debtor was not proper, however, compensation of Rs, 2,000 was
awarded to the judgment-debtor.

Execution of decree

Notice under Order 21 Rule 21 is necessary only when the decree holder files an
execution of decree for the first time against the legal representative of the
deceased.

Rule 25: Endorsement on the process

The officer who entrusted with the execution of the process shall endorse upon
the same date and the manner in which it was executed and also endorsed upon
in the reason of delay and in case the process was not executed, will also state
reasons thereof. However, a person cannot be re-arrested on the ground of
absence of endorsement.[xii]

CHAPTER 5: MODE OF EXECUTION.

The code lays down various mode of execution. After the decree-holder files an
application for execution of decree, the executing court can enforce execution.

A decree may be enforced by delivery of any property specified in the decree, by

attachment and sale or by sale without attachment of the property, or by arrest
and detention, or by appointing a receiver, or by effecting partition, or any such
manner which the nature of relief requires.

Arrest and Detention

One of the modes of executing a decree is arrest and detention of the judgment-
debtor in civil imprisonment. Where the decree is for payment of money, it can
be executed by arrest and detention of the judgment-debtor.

A judgment-debtor may be arrested at any time on any day in the execution of a

decree. After this 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 occupancy of the judgment-
debtor and he refuses or prevents access thereto.

No order of detention of the judgment-debtor shall be made where the decretal

amount does not exceed Rs.2000. Where the judgment-debtor pays the decretal
amount and costs of arrest to the officer, he should be released once. Women,
judicial officers, the parties, their pleaders, member of legislative bodies, a
judgment-debtor where the decretal amount does not exceed Rs 2,000, this person
cannot be arrested and detained in civil imprisonment.

A decree for money cannot be executed by arrest and detention where the
judgment-debtor is a woman, or a minor, or a legal representative of a deceased
judgment-debtor.[xiii]

Attachment of Property

A decree may also be executed on the application of the decree-holder by

attachment and sale the only sale without attachment of property. The code
recognizes the right of the decree-holder to attach the property of the judgment
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 judgment-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 judgment-debtor is an agriculturalist. It states that

judgment-debtor is an agriculturalist. Any agriculturalist produce is subject
matter of agriculturalist. The quantum of attachment of agricultural product
depends upon the quantum of decretal amount.

Section 63 where two different courts have attached the same property through
different decree, then it will be looked, that which court is superior. The value of
the property will determine whether further attachment can be done or not.[xiv]

Percept

Section 46– “precept” means a command, an order, a writ or a warrant. A percept

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
judgment-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 judgment-debtor is lying to attach any property specified in the
percept.

A percept seeks to prevent alienation of property of the judgment-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 the interim attachment of the property which lies outside the jurisdiction of
the 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 judgment-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 judgment-debtor in the hands of a third party (debtor of judgment-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 judgment-debtor because the latter is indebted to the garnisher.

Sale of the 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 the 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.[xv]

 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 said that people can participate in auction and sale. The
proclamation can be in writing or by customary mode.

Contents of the 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 judgment-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 judgment-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 postpone the sell. If it has
been postponed for a period of 30 days, the fresh proclamation has to be
issued and again the process of Rule 67, 68 and 69 will follow.
Sell cannot be postponed where judgment-debtor dies before the date of
sell or after the issue of proclamation, or on the date of the 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 the 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.

 sale of movable property: Rule 78-78 [xvi]

It 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 the movable property will not
be said aside on the ground of irregularity in publishing or conducting the
sale (Rule 78).

 Sale of immovable property: Rule 82-94 [xvii]

Rule 83 enables the executing court to postpone sale to enable the
judgment-debtor to raise decretal dues by private alienation.[xviii]

 Payment of purchase money by auction-purchaser: Rule 84-85.

Rule 86 talks about cases of default by auction-purchaser in making
requisite payment and resale of the 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. Section 65 declares the effect of
sale.[xix]

CHAPTER6: CONCLUSION

From the above discussion, it clearly appears that 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-
creditor or decree-holder gets money or other thing awarded to him by the
judgment, decree or order.

Order 21 of the code contain elaborate and exhaustive provision for execution of
decrees and order, 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.