The General Principle of Execution of a Decree

This article analyzes the General Principle of Execution. The execution of a decree is the final aspect and the fruit of successful litigation. It is important because it is the way of implementing the Court’s decision. This article provides an insight into the mechanism of decree execution in Indian legal structure by first introducing and explaining what execution of a decree is.

Then the article proceeds by explaining the intent as well as scope, followed by the judicial precedents relevant in current times. The article talks about who is eligible to file an application for execution, as well as foreign decrees and the limitation period set in law.

Introduction

There are three stages of litigation: initiation, adjudication, and implementation. The implementation of litigation is called execution. When a decree or judgment is passed by the court, the person against whom the judgment is passed (judgment-debtor) is responsible to give effect to the decree to ensure that the decree-holder enjoys the benefits of the judgment.

The judgment-debtor is obligated to carry out the mandate of the decree or order by execution. Execution gives effect to the order or judgment of a court of justice. When the decree-holder receives the benefit of the judgment entitled to him, the execution is said to be complete.

The Intent and Scope

Execution has not been defined in the CPC. The term “execution” can mean implementation, enforcement, or to give effect to an order or a judgment passed by the court of justice. Execution, simply put, is the process of enforcing or giving effect to the decree or judgment of the court, by obligating 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.

Illustration

X files a suit against Y for Rs 20,000 and obtains a decree against him. X is, therefore, the decree-holder, Y is the judgment-debtor, and Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, since the decree is passed against him. If Y refuses to pay this amount to X, X can recover the said amount by execution through the judicial process. Section 36 to Section 74 (substantive law) cover the principles that govern the execution of a decree or order and Order 21 of the code provides for the procedural law.

Who can file an application for execution?

The next necessary question is – Who is eligible to file an application for execution?

The following persons may file an application for execution –

1. First and foremost, the Decree-Holder can file the application, as per Order XXI Rule 10, Civil procedure Code, 1908
2. If the decree-holder has passed away, then Section 146 of the CPC enables the legal representative of the decree-holder to file the application
3. The representative of the decree-holder.
4. An individual who is claiming under the decree-holder.
5. If the conditions mentioned under Section 49 Order XXI Rule 16 CPC are met, then the Transferee of the decree-holder can also file the application. These conditions include-
6. The decree must have been transferred by an assignment in writing or by operation of law
7. The application for execution must have been made to the same court which had passed the decree.
8. The notice and opportunity of hearing must have been given to the transferor and the judgment debtor in case of an assignment by the transfer.

In the case of Brajabashi v. Manik Chandra[1], the court held that the object of issuing a notice is to decide once and for all and in presences of the relevant parties, the validity of the assignment of the transfer.

1. As per Order XXI Rule 15 of the CPC, one or more of the joint decree-holders can file an application for the execution, if the following conditions are met –
2. The decree should not have imposed any condition to the contrary
3. The application should have been made for the execution of the whole decree
4. The application must have been for the benefit of all the joint decree- holders.

Execution proceedings and Judicial Precedents

In Ghan Shyam Das v. Anant Kumar Sinha[2], the Supreme Court, while dealing with provisions of the code that deal with the execution of orders and decree, stated that the Code contains elaborate provisions that deal with questions of execution of a decree in all aspects.

The Court also observed that provisions of Order 21 provided effective remedies to judgment-debtors, decree-holders and claimant objectors. However, in cases where provisions of Order 21 are not sufficient to provide relief, adequate measures, or appropriate time to the aggrieved party, the aggrieved party should file a regular suit in the civil court.

The Court also stated that the judicial quality of remedy under the Civil Procedure Code is superior to other statutes and that the judges are expected to do better as they are entrusted with the administration of justice.

In a recent judgment by the Jammu and Kashmir High Court, it was held that it is the duty of the Executing Court to rectify any discrepancies in order to make a decree executable. In this matter of Suram Singh v. Lal Chand[3], it was held that the Executing Court has nullified, for all intents and purposes, the judgment declaring Decree Holder as owner in possession of the suit, in respect of which the Decree Holder had applied for execution when the Court dismissed the execution petition.

Even if one considers that the application was not strictly in compliance with the mandate of Order 21 Rule 23 of the Civil Procedure Code 1908, the Court should still have instructed the Decree Holder to seek appropriate relief. The Court should not have dismissed the application without giving the Decree Holder any opportunity to file a fresh application for execution seeking appropriate relief.

Similarly, in the case of Pratibha Singh v. Shanti Devi Prasad[4], the Supreme Court held that the executing Court can correct the decree as per Section 152 of the Civil Procedure Code, in order to make the decree executable. The Court had gone on to say that a decree of a competent Court should not, as far as possible, be allowed to be defeated simply due to accidental slip or emotions. Since the decree had become final because the Judgment Debtor had not challenged it, the Executing Court had a duty to correct the decree as per Section 152 CPC so that it does cause any disputes.

In a recent judgment by Orissa High Court, it was held that Order 21 Rule 29 CPC cannot come to the rescue unless sufficient cause is shown to stay the execution case. In the case of Dhoba Moharana v. Lili Moharana,[5] the Court held that simply because another suit was filed, that cannot be a ground to stay the execution case. The court believed that it was unfair to deprive the decree-holder in this situation.

In any case, where the party has relied on undue influence, misrepresentation, fraud, deceit, willful default or breach of trust, in which particulars are necessary, those particulars shall be mentioned in the pleading, as per Order 6 Rule 4 CPC.

Courts which can execute decrees

Section 38 of the Code states that a decree can be executed either by the Court of the first instance or by the Court to which it has been sent for execution.

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

1. The court of the first instance;
2. The court which actually passed the decree in case of appellate decrees;
3. The court which has jurisdiction to try the suit at the time of execution, if the court of first instance ceased to exist;
4. 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.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to execute a decree even in the case of any area being transferred from the jurisdiction of the court of first instance to the jurisdiction of any other court. In such cases, the court to the jurisdiction of which such area has been transferred will also have jurisdiction to execute the decree, provided that the said court had jurisdiction to try the said suit when the application for execution was made.

Execution of Foreign Decrees

When a litigant enters into court proceedings, his sole aim is to get that decree in his favour. The Apex Court has stated through multiple judgments that unjustified delays in the execution of a decree leaves the decree-holder helpless and unable to enjoy the fruition of his litigation efforts. The Supreme Court, in the matter of Satyawati v. Rajinder Singh, held that “We strongly feel that there should not be an unreasonable delay in execution of a decree because if 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…”[6]

Let’s have a look at the enforceability of foreign judgments in India. Foreign decrees are judgments those which have been passed by a court in another country, which is considered capable of being enforced and executed in our country. This is enabled through a process listed in the Civil Procedure Code 1908. As per Section 13(2) of the CPC 1908, a foreign judgment needs to qualify the following criteria, in order to be perceived as ‘conclusive’ to be enforceable in India –

1. It should have been pronounced by a court of competent jurisdiction
2. It should have been passed due to the merits of the case.
3. It should be correct as per international law and must not be inconsistent with Indian laws.
4. The proceedings of the judgment should not be in opposition to natural justice
5. The judgment must not have been attained through fraud.
6. It should not be based on any breach of law that is in force in India.

Once the criteria are met, the judgment will be considered ‘conclusive’. Foreign judgments are categorized into two different classifications – passed from either a reciprocating territory or a non-reciprocating territory.

The procedure for execution of decrees which have been passed by courts of the reciprocating territory is stated in Section 44-A of the CPC. It is crucial to understand why there is a distinction drawn between a reciprocating territory and a non-reciprocating territory, and how it affects the foreign judgments.

A foreign judgment that has been passed by a recognized reciprocating territory will be directly enforced by conducting execution proceedings as per Order 21 of the Civil Procedure Code. Examples of notified reciprocating territories by India include the United Kingdom, New Zealand, Bangladesh, U.A.E, Hong Kong, Singapore, Malaysia, Fiji, Trinidad & Tobago, Papua and New Guinea.[7]

After a foreign judgment passes the criteria specified in Section 13 CPC and is considered conclusive, which is a money decree, it needs to be ensured that it is well within the laws of limitation of India.

Limitation Period of Execution of Decrees

Article 136 of the Limitation Act states the period of execution for decrees in India. For any application, which does not have a defined period prescribed, the limit is three years, as per Article 137 of the Limitation Act. However, the decree of mandatory injunction has a limit of 12 years.

In the case of Bank of Baroda v. Kotak Mahindra Bank Ltd[8], the Supreme Court held that Article 136 of the Limitation Act can be applied only to decrees passed by Indian courts. Even though a new law of limitation was enacted in 1963 which failed to mention any sections for the execution of foreign decrees, the intention of the legislation was understood to be that foreign decrees will be guided as per Section 44-A of Civil Procedure Code. It was implied that the limitation period would start after such an application was filed.

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[1] Brajabashi v. Manik Chandra, AIR 1927 Cal. 964

[2] Ghan Shyam Das v. Anant Kumar Sinha, AIR 1991 SC 2251

[3] Suram Singh v. Lal Chand, CR. No. 26 of 2018

[4] Pratibha Singh v. Shanti Devi Prasad, (2003) 2 SCC 330

[5] Dhoba Moharana v. Lili Moharana, 2019 SCC OnLine Ori 164

[6] Satyawati v. Rajinder Singh, (2013) 9 SCC 491

[7] Sanjeev Kumar and Anshul Sehgal, Execution of a Decree: When does the clock start ticking?, Available Here

[8] Bank of Baroda v. Kotak Mahindra Bank Ltd., 2020 SCC Online SC 324

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1. Civil Procedure Code
2. Inherent Powers of the Court under CPC