EXECUTION OF DECREE

EXECUTION OF DECREE

The word ‘Decree’ (1) often appears along with the word ‘Judgment’ in Civil Courts, exercising the original jurisdiction. A Decree is passed after the final adjudication of disputes between the parties and, the law governing the aspect of Execution of Decree is prescribed under the Civil Procedure Code, 1908 (‘Code’) from Sections 36 to 74, 82, 135 and Order XXI (Rules 1 to 106) of the Code.

Similarly, the Award passed by an Arbitral Tribunal is also deemed to be a Decree of a Court and can be executed as a Decree under the Arbitration and Conciliation Act, 1996 (‘Act’) (2). Thus, the Award can be filed for execution before the Court where the assets of the judgment debtor are located as per the procedures established under the Code.

General Principles

While referring to Execution, the reservoir of power of Courts in executing the Decrees or Orders is contemplated under Section 51 of the Code. The magnitude of powers conferred to the Court under Section 51 of the Code are directly in connection under Order XXI of the Code. The Clauses (a) to (e) connected with Order XXI of the Code are provided as under:

1. By delivery of any property specifically decreed- Order XI, Rule 35
2. By attachment and sale or by sale or by sale without attachment of any property- Section 60, 65-67 & Order XI, Rules 41-54, 58 and 64-106.
3. By arrest and detention in prison- Section 55 to 59 and Order XI Rules 11A, 22 and 37 to 40
4. By appointing a receiver- Order XL

At this juncture, it is necessary to throw light on Section 38 of the Code, which speaks about the Court by which decree may be executed, which takes us to Section 37 of the Code.

Which Court can execute a Decree?

In normal course, the Decree is executable by the Court which passed it or by the court to which it is sent for execution (3). The expression ‘Court which passed the Decree’ is usually the Court of first instance i.e., the Trial Court. However, in the event the Decree is passed by the Appellate Court, the Appellate Court is construed to be the Court of first instance (4).

The Court executing the Decree, cannot be guided by the equitable considerations and has to strictly follow the terms of the decree as it stands. Further, the executing court cannot make additions to the decree while executing it. However, the only two situations while the executing court can decree a Decree as nullity when:

1. The Decree is passed without jurisdiction.
2. The Decree is passed against a dead person (5).

Apart from the above-mentioned situations, the Judgment Debtor cannot raise any objection before the executing court and the executing court cannot go behind the decree under execution and must execute the decree as it stands (6). Thus, even a Decree, which is incorrect in law or on facts is executable until it is set aside by a proper proceeding in appeal/ revision or other proceedings provided under the Code.

Can the executing court change or alter the decree in the light of events subsequent to the Decree?

It is no longer res integra that the executing court cannot go beyond the Decree except for the exceptions that either the decree is a nullity, or bad for want of territorial jurisdiction apparent on the face of record or such other matter (7). Therefore, the contentions available to the Judgment are very limited. It is also pertinent to mention here that an erroneous decree cannot be equated with one which is a nullity.

Transfer of Decree (8)

In the event the Judgment Debtor is not available and/or does not hold any properties within the jurisdiction of the Court which passed a Decree, in such scenario, an application has to be moved by the Decree Holder before the Court which passed the Decree in the form of an Execution Application and seek permission of the Court to transfer the Decree to the Court competent to execute. The Court to which such Decree is transferred, shall have the same powers as the Court which passed the Decree and does not possess any power to reconsider the Decree. In relation to Transfer of Decree, Order XI Rules 5 to 8 must be read with, which have lay down the procedure for such transfer. The major amendments to the Code relating to Transfer of Decree were considered by the Apex Court (9).

Merger of Decree

The Decree of the Trial Court merges with the Decree of the Court of appeal irrespective of confirmation, modification on reversal (10). In circumstances when an appeal is dismissed for default or on any other technical grounds amounts to confirmation of the Decree as appealed against. Thus, the Decree is merged with the Decree of the Appellate Decree or order (11).

Stay of Execution (12)

Usually, a stay is granted by the Appellate Court alone, however, for a limited time, a Trial Court can grant stay of execution to facilitate the Judgment Decree for taking necessary steps. However, the precondition for grant of such stay is that the application for stay must be preferred before the expiry of the time for appeal. Therefore, the power of granting stay of execution is only under peculiar circumstances and upon the discretion of the executing Court.

Conclusion

Generally, the litigants resist the execution and methods are adopted to prolong the litigation, which reminds us of the observation by the Privy Council in 1872 that, ‘the difficulties of the litigant begin when one has obtained a decree’. However, not much has changed in the last 150 years and the citizens continue to face problems in execution of Decree passed in their favour. The Apex Court, taking cognizance of the delay in execution of Decrees, directed the Execution Courts to dispose of the execution proceedings within six months from the date of filing.  It was further held that the Court is duty bound to record reasons in writing when it is unable to dispose of the matter within such timeline (13).

In the event the procedure established for execution of a Decree is not followed appropriately, there is every likelihood that the entire sale is set aside by the appellate court in the event the same is appealed against. Therefore, to avoid the years of efforts to be futile, lawyers must be vigilant to use the tools of execution and comply the procedures established.

End Notes

1. Section 2(2) of the Code defines Decree
2. Section 36 of the Act.
3. Section 38 of the Code
4. Ramankutty Vs. Avara- (1994) 2 SCC 642
5. Hira Lal Vs. Kali Nath – AIR 1962 SC 199
6. V.D. Modi Vs. R.A. Rahman (1970)1 SCC 670: AIR 1970 SC 1475
7. Brakewel Automotive Components (India) Pvt. Ltd Vs P.R. Selvam AIR 2017 SC 1577: (2017) 5 SCC 371
8. Section 39 of the Code
9. Salem Bar Association Case 1- AIR 2003 SC 189 and Salem 2- AIR 2005 SC 3353
10. ITC Vs. Amrittal- AIR 1958 SC 868
11. Sheodan Singh Vs. Daryao Kumar AIR 1966 SC 1332
12. Order XXI Rule 26 and 29 of the Code
13. Rahul S. Shah Vs. Jinendra Kumar Gandhi reported in (2021) 6 SCC 418 = AIR 2021 SC 2161