Section 36 of the CPC - An Oft-Overlooked Executioners Sword

Introduction

The lengthiest Order in the Civil Procedure Code, 1908 (hereinafter “CPC”) is Order XXI, which lays down the procedure for execution of decrees and orders passed by a civil court. Order XXI is a self-contained code, which exhaustively covers all the steps in execution of decrees and orders.

Albeit Order XXI is titled “Execution of Decrees and Orders”, the procedure envisaged in the Rules thereunder is (prima facie) confined to decrees. This wording of the Rules is perhaps the root for the colloquial misconception that Order XXI pertains to execution of decrees alone.

This misconception flies in the face of Section 36 of the CPC, which in no uncertain terms clarifies that the procedure for execution of decrees also applies to execution of Orders. In other words, Section 36 effectively makes applicable the comprehensive procedure outlined under Order XXI for Rules.

“Inherent Executability” of Orders

Prima facie, it appears that Section 36 is merely a clarificatory provision wherein the sole objective is to clarify that Order XXI extends to the execution of Interlocutory Orders as well. However, the provision has far-reaching implications, which are often overlooked.

Effectively, Section 36 recognizes the inherently executable value of an Order passed by the Court. In comparison with Section 151 of the CPC which broadly recognizes the inherent powers of civil Courts, Section 36 is more niche and ensures that Orders of the Court are not mere “Paper Orders”. This laudable object has been recognized by the Delhi High Court in Rohit Shekhar vs. Narayan Dutt Tiwari and Anr. [1]

While resort is often made to Section 151 for seeking reliefs from the Court in the absence of alternate remedies, Section 36 is often overlooked in practice, even though it offers litigants the compelling alternative remedy of execution. The provision is thus an “executioner’s sword”, which is rarely put to use, therefore diluting its very purport.

The “Executioner’s Sword” as A Viable Alternative

The use of Section 36 for seeking the relief of execution of a Court Order is contingent on such Order falling within the purview of the definition of “Order” as provided under Section 2(14) of the CPC. Fortunately, the aforementioned definition is broadly worded, therefore widening the scope of applicability of Section 36.

Under Section 2(14) of the CPC, an “order” means the formal expression of any decision of a Civil Court which is not a decree. It is based on this definition that the Supreme Court and High Courts have adjudicated on whether certain Orders can be executed by virtue of Section 36. However, barring a few Orders on which the law is settled, the executability of other Orders under Section 36 of the CPC has been subject to debate.

For instance, the Calcutta High Court in D. Das and Brothers and Anr. v. Secretary, Land Reforms and Refugee Relief and Rehabilitation Dept., Govt. of West Bengal and Ors. [2] , held that an Order passed by the High Court in its writ jurisdiction is an executable Order in terms of Section 36. However, in the past, orders passed in the writ jurisdiction of the High Court were held to be outside the purview of Section 36, owing to the writ jurisdiction being of an extraordinary nature. [3]

Similarly, an Order awarding mesne profits has consistently been held to be executable on a conjoint reading of Sections 2(14) and 36 of the CPC [4] , whereas based on the same principles, Orders on consent terms and Orders in contempt proceedings have been held non-executable [5].

As is evident from the abovementioned judgements, whether or not a Court Order is executable, is left to judicial determination based on a reading of the definition under Section 2(14). However, the inconsistency in the rulings also indicates that the Court will not be disinclined from granting the relief of execution when it is convinced that an Order falls under the aforesaid definition. Take for instance, the judgement of the Punjab and Haryana High Court in Ranbir Singh v. Inderjit Kaur and Ors. [6] , where the Court effectively recognized the execution of an Order under Section 36 as an alternative to filing an appeal or a review.

Therefore, it is evident that there is a dearth in the number of judicial observations qua the applicability, scope and extent of Section 36 and its usage as an alternative to other remedies under the CPC. However, the provision, as it stands, is indubitably a viable alternative available to litigants; in other words, a sword befitting an “executioner”.

References:

[1] Rohit Shekhar vs. Narayan Dutt Tiwari and Anr., AIR 2012 DEL 151
[2] D. Das and Brothers and Anr. v. Secretary, Land Reforms and Refugee Relief and Rehabilitation Dept., Govt. of West Bengal and Ors., 2023 SCC OnLine Cal 2018
[3] Charanlal Sunderlal Vaishya v. Lal Bahadur Shastri Harijan Samuhik Krishi Sahakari Sanstha, 1981 MP LJ 26
[4] Pushpavatibai v. Ratansi, AIR 1941 PC 128.; Keduram and Ors. v. Supetkaur and Ors., ILR 1971 MP 80
[5] Re Siddharth Srivastava v. K.K. Modi Investment and Financial Services Pvt. Ltd., AIR 2002 Bom 494; Sir Sobha Singh and Sons Pvt. Ltd. v. Shashi Mohan Kapur (D) through LRs, (2020) 2 SCC 798
[6] Ranbir Singh v. Inderjit Kaur and Ors., PLR (2012) 166 P&H 459