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Execution Under Civil Procedure Code, 1908

The document discusses execution under the Civil Procedure Code of 1908 in India. It defines execution as implementing or enforcing a court order or judgment. It discusses which courts can execute decrees, how decrees can be transferred for execution to other courts, and the powers of transferor courts, transferee courts, and executing courts in the execution process. The document also covers execution of foreign decrees in India and Indian decrees in foreign territories.

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Arshi Khan
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517 views10 pages

Execution Under Civil Procedure Code, 1908

The document discusses execution under the Civil Procedure Code of 1908 in India. It defines execution as implementing or enforcing a court order or judgment. It discusses which courts can execute decrees, how decrees can be transferred for execution to other courts, and the powers of transferor courts, transferee courts, and executing courts in the execution process. The document also covers execution of foreign decrees in India and Indian decrees in foreign territories.

Uploaded by

Arshi Khan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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EXECUTION UNDER

CIVIL PROCEDURE
CODE, 1908
Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing
or enforcing or giving effect to an order or a judgment passed by the court of justice. In
simple words “execution” means the process of enforcing or giving effect to the decree or
judgment of the court, by compelling the judgment-debtor to carry out the mandate of the
decree or order and enable the decree-holder to recover the thing granted to him by
judgment.

Execution proceedings under CrPC


In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions
of the code relating to execution of orders and decree and stated that the Code contains
elaborate provisions which deal with all questions regarding executability of a decree in all
aspects.
Courts which can execute decrees
ction 38 of the Code states that a decree can be executed either by the Court of first
stance or by the Court to which it has been sent for execution.

ction 37 of the Code further establishes the scope of the expression “court which
assed a decree” with the object of enabling a decree-holder to recover the fruits of the
cree. The courts which fall within the said expression are as follows:

. The court of the first instance;


. The court which actually passed the decree in case of appellate decrees;
. The court which has jurisdiction to try the suit at the time of execution, if the court
of first instance ceased to exist;
. The court which at the time of execution had jurisdiction to try the suit, if the court
of first instance has ceased to have jurisdiction to execute the decree.
Transfer of decree for execution
Section 39 provides that when a decree-holder makes an application to the court of first instance
to send the decree for execution to another court, the court of first instance may do the same if
any of the following grounds exist:
1) if the judgment-debtor carries on business, or resides or personally works for gain, within
the jurisdiction of such Court;
2) if the property of judgment-debtor does not come under the jurisdiction of the Court of the
first instance but it comes under the local limits of the jurisdiction of such Court;

3) if the decree directs delivery or sale of immovable property situated outside the jurisdiction
of the Court which passed the same;

4) if the Court which had passed the decree considers that the decree should be executed by
another court, but it shall record the reasons in writing for doing the same.
Section 39(2) states that the Court of the first instance may suo motu send it for execution to any
subordinate Court of competent jurisdiction.
The Section further states that if the execution of the decree is against a person or property
outside the territorial jurisdiction.
Execution of foreign decrees in India
The Code lays down the procedure for execution of foreign judgments and decrees in India.
While enforcing a foreign judgment or decree in India it should be ensured that the
judgment or decree is a conclusive one, given on the merits of the case and by a court
having competent jurisdiction.

What is a foreign judgment and a foreign decree?


Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As per
section 2(5) of CPC, a foreign court implies a court which is situated outside India and
which is not established or continued by the authority of the Central Government.
A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or
judgment of such court and which directs that a sum of money is payable. However, such
sum of money shall not be a sum payable in respect of taxes or other charges of a like nature
or in respect of any penalty or fine. It should not include an arbitral award, even if such an
award is enforceable as a decree or judgment.
Execution of foreign decree of a reciprocating territory in
India

According to Section 44A of the CPC, a decree of any superior court of a reciprocating territory shall
be executed in India as that has been passed by the district court.
"Reciprocating territory" signifies, any territory or country outside India which the Central
Government has declared to be a reciprocating territory, by notification in the Official Gazette, and
"superior courts", with reference to any reciprocating territory, means such courts that would be
specified in the said notification.
Therefore, a judgment which has been pronounced by a court of a reciprocating territory can be
enforced in India as an Indian decree by filing an execution application.

Execution in case of decrees from non-reciprocating


territories
In the cases where a judgment or decree has not been pronounced by a court of a reciprocating
territory, it can be executed only when a fresh suit on that foreign judgment is filed in a court of
India which has competent jurisdiction to entertain the same.
Execution of Indian decrees in a foreign territory

Section 45 of the Code is related to the execution of decrees outside the territory of India. It states that
a Court has the power to send a decree for execution to a Court outside India which has been
established by the Central Government’s authority. It should be ensured that the State has, by
notification in the Official Gazette, declared the said section can apply to such Court. A plain reading of
the aforesaid provision yields the following features:

1. The decree which has to be executed should be of an Indian Court and it should be for execution
in a foreign territory.
2. The Central Government should have established the transferee court in such foreign territory.
3. The State Government should have declared by notification in the Official Gazette that this
section will apply to the said foreign Court.
The provision, therefore, prescribes the prerequisite conditions for the execution of an Indian decree
outside the country. Therefore, in the absence of either of the aforesaid conditions in Section 45, an
Indian Court has no jurisdiction to send its decree for execution to a Court not situated in India.
Powers of the transferor court

Once a court which has passed a decree and transferred it to another court of competent jurisdiction, it would cease to
have jurisdiction over that decree and it cannot execute the decree. Then, only the transferee court can entertain an
application for execution.

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has been sent for execution to
another district, it may be executed by either the district court to which it was sent or by a subordinate court which has
competent jurisdiction, to which the district court may refer it.
Section 42 provides for the powers of the transferee court and states that the Court to which a decree has been sent for
execution shall have the same powers in execution of such decree as if it had been passed by itself. The Court has the
power to punish the persons who cause obstructions in the execution of the decree and the power shall be exercised by
the court as if the decree has been passed by it. The main object of giving such powers to the transferee court is to
ensure that the judgment-debtor pays the money or gives such other thing to the decree-holder as would be directed by
the decree.

The Court will have the following powers, namely:—


● To send the decree for execution to another Court under section 39.
● To enforce execution of a decree against the legal representative of the deceased judgment-debtor under section
50.
● To order attachment of a decree.
Powers of executing court
The section states the jurisdiction and power of the court in executing a decree. An application for execution
of the decree can either be oral or written. The court may execute decree as per the mode of implementation
prayed by the decree-holder or as the court deems fit.

Mode of executing decree:

● By delivery of any property (movable or immovable) specifically decreed.


● By sale of the property with or without the attachment of the property. If the property is situated
within the jurisdiction of the court then it has the power to attach the property.
● By arrest and detention. However, this mode should not be exercised without giving a reasonable
opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be
imprisoned.
● Execution by appointing a receiver.
● If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in execution of a
decree then clause(e) comes into play.
Conclusion
It clearly appears from the above discussion, that execution means implementing or
enforcing or giving effect to an order or a judgment passed by the court of justice. The
provisions contained in Order 21 covers different types of situation and provide effective
remedies to the judgment-debtors, claimant objectors and third parties apart from the
decree-holder. The Code takes care of the rights of judgment-debtors too. Various modes
of execution of a decree are also provided by the Code which includes arrest, detention of
the judgment-debtor, delivery of possession, attachment of the property, by sale,
partition, the appointment of receiver and payment of money etc. Thus, the provisions
are rendered effective or capable of giving relief to an aggrieved party.

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