By which court decree may be executed? What are the modes of execution of a decree?

Question: By which court decree may be executed? What are the modes of execution of a decree?

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Answer

According to Section 38, a decree may be executed either by the court which passed it or by the court to which it is sent for execution.

“Court which passed the decree”

Section 37 defines the expression “court which passed the decree”. According to Kasturi Rao v. Mehar Singh, AIR 1959 Punj 350, the section enlarged the scope of the expression “court which passed a decree” with the object of giving greater facilities to a decree holder to realize the fruits of the decree passed in his favour. The following courts fall within the aforesaid expression:

1. The court of first instance which actually passed the decree;
2. the court of first instance, where the decree to be executed has been passed in the exercise of appellate jurisdiction,
3. where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

“Court to which it is sent for execution”

Generally, 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 either of its own motion or on the application of the decree holder if any of the following grounds exists:

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 other Court, or
2. if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
3. if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
4. if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

Modes of execution of a decree

The various modes of the execution of a decree are as under –

1. Delivery of Property
   1. According to Rule 31 of Order XXI, where the decree is for any specific movable property , it may be executed 1) the seizure, if practicable, of the movable or share, and by the delivery or 2) by the detention in the civil prison of the judgment-debtor, or 3) by the attachment of his property, or 4) by both. For the application of this rule, the property must be in possession of the judgment debtor.
   2. Immovable property – According to Rule 35 and 36, where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
      Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.
2. Attachment and sale of property

Section 60 of the Code of Civil Procedure states the list of properties which are liable to attachment and sale in execution of the decree. The list which is liable to be attached for enforcement of decree according to this Section is:

1. 1. Land;
   2. Houses or other buildings;
   3. Goods and Money;
   4. Banknotes and cheques;
   5. Bill of exchanges and promissory notes;
   6. Hundis;
   7. Government Securities, bonds and other securities for money;
   8. Debts;
   9. Shares in the corporation;
   10. All other saleable property that belongs to the judgment-debtor which can be movable or immovable.

Section 61 of the Code of Civil Procedure states a partial exemption of agricultural produce.

Order XXI, Rule 3 of the Code of Civil Procedure provides that if the immovable property is located in more than the local limits of the jurisdiction of one or more courts, then one of the Court can sell and attach the property. According to Order XXI, Rule 13, there has to be certain information in the application for attachment of immovable property.

3. Arrest and detention

One of the mode of executing a decree is arrest and detention in civil prison of the judgment-debtor. However, this should be read subject to proviso to Section 51.

The proviso lays down that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied—

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,— (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree. the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. These provisions are mandatory in nature and must be strictly complied with.

4. Appointment of receiver

Execution by appointment of receiver is known as equitable execution and is entirely within the discretion of the court. It cannot be claimed as of right. The appointment of receiver in execution is proceedings is considered to be an exceptional remedy and a very strong case must be made out in support of it.

The decree holder before resorting to this mode must show that there is no effective remedy for obtaining relief by the usual statutory modes of execution. The court must also be satisfied that the appointment of a receiver is likely to benefit both the decree holder and the judgment debtor rather than a sale of the attached property.

5. By such other manner as the nature of the relief granted may require-

Section 51, the fifth and the last mode of execution is based on equity and it is the discretion of the court.

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