When the adjudication of a dispute is over, a decree is passed by the court which determines the rights of the party to a dispute. A person in whose favour a decree is passed is called decree-holder and the person against whom the decree is passed is called judgment debtor.
In civil suits usually, the judgement debtor must satisfy the decree by paying a sum of money to the decree-holder. In case it is paid, parties have no obligations towards each other but in case judgement debtor fails to comply with the decree either intentionally or owning to some reasons, the decree holder can apply for the execution of the decree.
Meaning of Execution
Execution of a decree is basically giving effect to the decree passed by the court. Execution, thus, is the last stage of any litigation. The court orders execution based on the application filed by the decree-holder. By an order of execution, the judgement debtor is legally compelled by the court to act upon the decree and enables the implementation of the decree. Execution in civil suits is governed by the provisions contained in Civil Procedure Code, 1908 (hereinafter CPC, 1908).
Execution of Order and Decree:
“Decree means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.” (Section 2(2) of CPC,1908.)
“Order means the formal expression of any decision of a Civil Court which is not a decree.” (Section 2(14) of CPC,1908.)
According to Section 36 of CPC, 1908, The provisions of this Code (CPC,1908) relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders.
Although there is difference between order and a decree, but the execution of both decree and an order are governed by same provisions. So, the modes adopted for execution of a decree are applicable to the execution of any order as well. Like a decree, an order , for its execution can be sent to another court for execution.
Which Court may execute the decree?
According to Section 38 of CPC, 1908, the decree is executed either by the
(a)Court which passed the decree or
(b) Court to which the decree is sent for execution.
The court which passed the decree: The decree-holder may file an application before the court which passed the decree, thus, making it the court of the first instance. In case, the judgement is challenged in the appellate court and the appellate court affirmed the judgement, in that case too, the court which first passed the decree that is the court of the first instance will execute it.
Section 37 clarifies that if the court of the first instance has ceased to exist (say by an Act of Parliament) or it no longer has the jurisdiction to execute the decree, the court which is instituted in place of that court would have the power to execute it.
Court to which it is sent: A decree for its execution may be sent to another court by the court which passed it. It is done by:
According to Section 40 of CPC, 1908, When a decree is sent to another court( transferee court) for execution , the transferee court has to certify the transferor court ( the court which passed the decree) whether the decree is successfully executed and if not , give the reason of such failure to the transferor court.
Powers of the transferee court
The powers of the transferee court that is the court to which the decree is sent for execution, are the same as those available to the court which passed the decree. These powers include the:
Modes of Execution
The decree may be executed in any of the modes given under Section 51 of CPC, 1908. For this, the decree-holder must file an application before the court. The decree-holder may choose any of the modes given under Section 51. No one can compel him to choose one or another mode of execution. [1] But the court is not bound to execute the decree in the mode preferred by the decree-holder in the application since the court must decide it according to the rules given under Order 21 of CPC, 1908.
The modes of execution of property are as follow:
Period of detention: It depends upon the decretal amount that is the amount to be paid to satisfy the decree. If the amount is
Less than Rs 2000: No order of detention can be made.
Between Rs 2000 to 5000: Detention can be ordered for a maximum period of six weeks.
Above Rs 2000: Detention can be ordered for a maximum period of three months.
Conditions for detention: The judgement debtor is to be detained in a Civil Prison and the allowances for the same are to be borne by the decree-holder. Provided that the judgement debtor is to be released immediately if:
(i) he pays the decretal amount
(ii) the decree-holder wants so and requests that the judgement debtor should be released before the court since it was the decree-holder on basis of whose application the judgement debtor was detained.
(iii) the decree-holder fails to pay the subsistence allowances
(iv) the judgement debtor has serious health issues.
A receiver is an impartial person, and he is not a party to the suit. It may be inappropriate or a very rare case that the receiver is a party to the dispute. Moreover, the receiver is duly paid for his services, but the receiver is also liable for any loss which may occur to the property owing to the negligence of the receiver. The powers of a receiver include the power to collect the rents and profits arising out of the property.
Conclusion
Execution is thus a mode adopted by the courts to enforce a decree in favour of decree-holder. Since mere passing of a decree is not enough, the decree-holder must be provided with a sufficient remedy in case the judgement debtor does not satisfy the decree. For this, various modes are given under Section 51 of CPC, 1908 and the purpose of these modes is to legally compel the judgement debtor to satisfy the decree. Since these modes are harsh enough like detention so judgement debtor is left with no option but to pay the decretal amount or to do the same which the decree demands.
