EXECUTION OF JUDGMENT AND DECREE

This article is written by Manashvi Rawat of 5^th Semester of BBA LLB (Hons.) of Shri Ramswaroop Memorial University, Barabanki, an intern under Legal Vidhiya

ABSTRACT

Execution of judgment and decree are two legal processes that are often used to enforce a court’s decision. Execution of judgment refers to the process of carrying out or enforcing a judgment or court order, while a decree is a formal order issued by a court that outlines the parties’ legal rights and obligations. The process of execution can vary depending on the jurisdiction and the nature of the judgment or court order being enforced. In some cases, execution may involve seizing and selling the assets of a debtor to satisfy a judgment, while in other cases it may involve taking specific actions to comply with a court order. The goal of execution is to ensure that the rights of the parties involved are protected and that justice is served.

Decrees, on the other hand, are often used to resolve disputes and enforce rights in a more formal manner. A decree may be issued by a court after a trial or hearing, and it outlines the parties’ legal rights and obligations. Decrees are often used in family law matters, such as divorce or custody disputes, as well as in civil litigation.

Keywords– Execution, Decree, Judgment, general principles with regard to execution and order, Transference of court’s power, Foreign decree, Foreign judgment.

INTRODUCTION

 There are three phases of litigation:

• First phase: commencement of litigation
• Second phase: Adjudication of litigation
• Third phase: Implementation of litigation

Last stage which is the third stage is also known as ‘Execution’. Once a decree or a judgment has been issued by the court the judgment debtor (The party against whom the decree was issued) has the responsibility of implementing the decree so that the decree holder may benefit from the decision of the court.

Execution is the process of making sure that a court’s decision is followed. It means that the person who lost the case (the judgment-debtor) has to do what the court said. When the person who won the case (the decree-holder) gets what the court said they should get. A decree is a court’s final ruling. It can only be enforced if the parties involved have filed an application requesting its implementation. The court’s role in executing a decree is to facilitate its enforcement, but it is not obligated to do so on its own initiative. If a party does not approach the court, the court is not required to enforce the decree. Generally, the court that issued the decree is responsible for its execution. However, in some exceptional cases, another court with the appropriate jurisdiction may enforce the judgment. Execution is the process by which a person who has won a court case (the decree-holder) forces the person who lost the case (the judgment-debtor) to follow the court’s decision. This allows the decree-holder to receive what they were awarded by the court. The execution is considered complete when the decree-holder receives the money or other things that were granted to them by the court’s judgment, decree, or order.

Meaning

There is not any definitive meaning of execution given in CPC. The term execution refers to the implementation, enforcement, or giving an effect to the order or judgment passed by the court of justice Execution is the methodical process by which court-issued decrees and orders are effectively enforced, allowing the decree-holder to fully reap the benefits of the judgment. The execution is considered successfully complete when the judgment creditor or decree-holder receives the money or other item that was rightfully granted to them by the judgment, decree, or order.

Example

let’s say A sues B for Rs 10,000 and successfully wins a judgment against him. In this scenario, A is the rightful decree-holder, while B is the judgment debtor, and the judgment debt (also known as the decretal amount) is Rs 10,000. As a result of the judgment being entered against him, B is obligated to pay A Rs 10,000. However, if B refuses to pay A the amount specified in the decree, A may seek legal reimbursement from B by having the decree enforced through a formal legal process. Sections 36 to 74 of the code (substantive law) and Order 21 (procedural law) cover the rules guiding the execution of decrees and orders.

In Ghan Shyam Das Gupta And Anr vs Anant Kumar Sinha And Ors on 17 September, 1991 The Supreme Court has thoroughly examined the provisions of the Code of Civil Procedure (CPC) that relate to the execution of orders and decrees. The Court has stated that the Code contains comprehensive and detailed provisions that address all aspects of the executability of a decree. In other words, the CPC provides a complete framework for enforcing court orders and judgments. The Court has noted that Order 21 of the Code of Civil Procedure (CPC) contains numerous provisions that address a wide range of situations, providing effective remedies for judgment-debtors, decree-holders, and claimant objectors. In cases where these provisions are not capable of providing adequate relief in a timely manner to an aggrieved party, the solution is to file a regular suit in a civil court. Simply put, if the existing provisions of Order 21 are not sufficient to address a particular situation, the affected party can seek redress through the normal legal process.

Execution of decrees by different courts

 Section 37: of the Code of Civil Procedure (CPC) explicitly defines the scope of the term “court which passed a decree” with the primary objective of enabling a decree-holder to successfully recover the benefits of the decree. The courts that fall within this definition are as follows:

• The original court of first instance;
• The court that actually passed the decree in the case of appellate decrees;
• The court that has jurisdiction to try the suit at the time of execution, if the court of first instance has ceased to exist;
• The court that, 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.

These provisions are designed to ensure that a decree-holder is able to effectively recover the benefits of the decree through the appropriate legal channels.

Section 38 of the Code of Civil Procedure (CPC): a decree may be enforced either by the original court of first instance or by the court to which it has been transferred for execution. This means that the decree-holder has the option to seek enforcement of the decree through either the court that originally issued it or through another court that has been designated to handle its execution.

Transfer of Decree for execution

Section 39 of the Code of Civil Procedure: the court of first instance has the authority to grant a decree holder’s request to transfer the decree for execution to another court. This may occur if any of the following conditions are met: 

•  If the judgment debtor conducts business, resides, or personally works for gain within the jurisdiction of the other court;
• If the judgment debtor’s property is not located within the jurisdiction of the court that passed the decree but is located within the local limits of the jurisdiction of the other court;
• If the decision mandates the transfer or sale of real estate located outside the court’s territorial jurisdiction; or
• If the court that passed the decree considers that it should be executed by another court and records its reasons for doing so in writing.

Any of these conditions are fulfilled, the court may permit the transfer of a decree for execution to another court.

Section 39(2) of the Code of Civil Procedure: the Court of First Instance has the discretion to refer the execution of a decree to any subordinate court with jurisdiction over it. Furthermore, the section specifies that the court passing the decree lacks the authority to execute it if it is being enforced against a person or property located outside its territorial jurisdiction. In simple terms if the person or property against which the decree is being executed is located outside the jurisdiction of the court that passed it, that court does not be able to carry out the decree.

In Mahadeo Prasad Singh & Anr vs Ram Lochan & Ors on 16 September, 1980. The Supreme court ruled that the provisions of Section 39 of the Code of Civil Procedure are not legally binding, as the court retains judicial discretion over the situation. This means that the decree holder does not have a vested or substantive right to have the decree transferred to another court. the court has the power to decide whether or not to grant a decree holder’s request to transfer the decree for execution to another court, and the decree holder does not have a legal right to demand that this be done.

General Principles with regard to Execution of Decree and Order

The principles regarding the execution of a decree and order refer to the guidelines and procedures that must be followed when enforcing a court’s judgment or decision. These principles ensure that the execution of a decree or order is carried out in a fair and just manner, in accordance with the law. 

• The provisions of the Code of Civil Procedure (CPC) regarding the execution of judgments and orders must be applied to both the appeal and the original lawsuit.
• A decree may be executed either by the court that issued it or by another court that has the authority to execute the judgment issued by that other court. In other words, a court may enforce its own decree or transfer it to another court for execution, provided that the other court has the power to carry out the judgment.
• The court that issued the decree has the authority to transfer it to another court for execution, either upon the request of the applicant (the decree holder) or at its own discretion.
• A court may order the execution of a decree on the application of the decree holder in one of several ways, depending on the circumstances and the nature of the decree:

1. including by delivering any property that the judgment debtor was in possession of and for which a specific decree has been passed;
2. by attaching and selling the judgment debtor’s property;
3. by arresting and detaining the judgment debtor (civil imprisonment);
4. by appointing a receiver; or in any other manner that depends on the circumstances. The court may also issue a “percept” to any other court that is qualified to carry out the execution of the decree at the request of the decree holder.
5. It is important to note that all disputes between the parties to the decree must be resolved by the court during the execution of the decree, rather than through a separate lawsuit.

• When a court orders the sale of real estate, the sale is considered final. The purchaser is deemed to be a party to the lawsuit and the property is considered to be vested in their favour.
• Additionally, the court to which a decree is sent for execution must provide certification to the court that passed the decree, detailing how the decree has been executed and confirming that such execution has taken place. when a court orders the sale of real estate, the sale is binding and the purchaser acquires legal rights to the property. The court responsible for executing the decree must also report back to the court that issued it, providing information about how the decree has been carried out.

Execution of foreign decrees in India

The execution of foreign decrees in India refers to the process by which a decree or judgment issued by a court outside of India is enforced within the country. This process is governed by the Code of Civil Procedure, which sets out the requirements and procedures for executing foreign decrees in India.

The process for carrying out foreign judgments and decrees in India is outlined in the Code of Civil Procedure. When enforcing a foreign judgment or decree in India, it is important to ensure that the judgment or decree is conclusive, meaning that it has been given on the merits of the case by a court with competent jurisdiction. before a foreign judgment or decree can be enforced in India, it must meet certain requirements to ensure that it is valid and legally binding. 

Foreign judgment and Foreign decree

Section 2(6) of the Code of Civil Procedure (CPC): a foreign judgment is defined as a judgment that has been passed by a foreign court. In accordance with Section 2(5) of the CPC, a foreign court refers to a court that is located outside of India and has not been established or continued by the authority of the Central Government. Explanation II to Section 44A of the Code of Civil Procedure (CPC), defines a foreign decree as a decree or judgment passed by a foreign court that orders the payment of a specific sum of money. However, this sum of money should not include any taxes, charges of a similar nature, penalties, or fines. Additionally, an arbitral award is not considered a foreign decree, even if it is enforceable as one. 

A foreign judgement or decree must be final and binding. It will be considered conclusive in all situations, except for those specified in Section 13 of the CPC. This section outlines the criteria for determining the conclusiveness of a foreign judgement or decree.

A foreign judgement or decree may not be considered conclusive in the following situations:

• If it has not been determined by a court with the appropriate jurisdiction.
• If no decision has been made on the merits of the case.
• If it is based on an incorrect interpretation of international law or a refusal to recognize Indian law when applicable.
• If the procedures used to obtain the judgement were contrary to natural justice.
• If the judgement was obtained through fraud.
• If it supports a claim that is based on a breach of any law currently in force in India. 

Method of enforcing a foreign judgment or order

A foreign judgement or decree can be enforced in India under two circumstances:

1. If it was passed by a court in a territory that has a reciprocal agreement with India; and
2. If it was passed by a court in a territory that does not have a reciprocal agreement with India. 

Execution of a foreign ruling in a territory with reciprocity in India

Section 44A of the CPC: a decree passed by a superior court of a reciprocating territory must be executed in India as if it were passed by the district court. In this context, “superior courts” refers to the courts specified in the relevant notification for a reciprocating territory. Any nation or territory outside of India that has been designated as such by the Central Government through a notification in the Official Gazette is referred to as a “reciprocating territory.”  

The provisions for execution established in Order 21 of the CPC will apply to a decree after a certified copy of it has been filed in a District Court from a superior court of a reciprocating region. The decree will then be executed as if it were passed by the District Court of India. When filing the application for execution, the original certified copy of the decree must be accompanied by a certificate from the superior court stating that the decree has been fully satisfied or adjusted.

Execution in the event that a non-reciprocating territory issues a decree

In the case of Coastal Marine Construction & Engineering Ltd. v. Marine Geotechnics LLC. Company Petition No. 69 of 2013 Decided On, 05 March 2014 the Bombay High Court stated that a judgement passed by a court in a non-reciprocating foreign territory cannot be enforced in India unless a new suit is filed by the party who obtained the judgement, based on the foreign judgement, the original cause of action, or both. This suit must be filed within three years from the date of the judgement or decree. 

The court also stated that Section 44A of the Code is a provision that allows a decree holder to enforce a decree obtained from a court in a reciprocating territory. Section 13 of the Code sets out the substantive law, while Section 44A is an enabling provision.The concept of private international law that a court will not enforce a foreign judgment rendered by a competent court is expressly stated in Section 13. 

Execution of Indian laws in a foreign country

Section 45 of the Code deals with the enforcement of judgements outside India. According to this section, a court may send a judgement for execution to a court outside India that has been authorized by the central government. By publishing a notification in the Official Gazette, the State must declare that the aforementioned section is applicable to the particular court. A straightforward reading of this provision reveals the following characteristics:

• The decree that is to be enforced must have been passed by an Indian court and intended for execution in a foreign country.
• The court to which the decree is being transferred must have been established in that foreign country by the central government.
• The State Government must have notified the said foreign court of the applicability of this provision through a notification in the Official Gazette. 

Execution of the directive in multiple locations

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors on 23 April, 1970 In the case of Prem Lata Agarwal vs. Lakshman Prasad Gupta & Ors, the Supreme Court ruled that “execution proceedings can take place simultaneously in more than one location, but this power should be exercised in a limited manner, in exceptional cases and with appropriate conditions to ensure that the judgement debtors do not face any hardship due to multiple executions being allowed to proceed at the same moment.” Therefore, concurrent executions are neither wrong nor illogical. 

Procedure in execution

Sections 51 to 54 discuss the procedure or mode of execution. Section 51 grants the court the general power to enforce the decree. This section outlines the extent of the court’s power to execute the decree. Both oral (per Order 21 Rule 10) and written (Order 21 Rule 11) applications for execution of the decree under this provision are acceptable. The party must choose the method of enforcing the decree. The court may execute the decree as requested by the decree-holder or as it deems appropriate.

Mode of executing decree

The decree can be enforced in the following ways:

• By delivering any property (movable or immovable) that has been specifically ordered.
• By selling the property, either with or without attachment. The court has the power to attach property if it is located within its territorial jurisdiction.
• By detention and arrest. However, this option should not be used without first giving the judgement debtor a fair opportunity to show cause by way of a show-cause notice.
• By appointing a receiver for execution.
• If a method other than those specified in clauses (a) to © is required to enforce the decree, clause (e) comes into play.

Section 52: deals with situations where a judgement is made against the legal representative of a deceased person. If the judgement requires payment from the deceased person’s property, it can be enforced against that property while it is still in the possession of the legal representative. If the legal representative fails to properly use the property, the court may enforce the decree against them directly. If the legal representative refuses or neglects to make payment from the deceased’s property, the court may enforce the decree against their personal property. This also applies if the legal representative has misappropriated or alienated the deceased’s property.

Section 53: if a joint Hindu family is involved in a legal case, the legal representative will not be held personally liable unless they have received some of the family’s property. If someone receives property from a joint Hindu family, they are obligated to fulfil their pious obligation. If a decree is issued against the Karta after partition, it cannot be enforced against the son. However, if the case was ongoing before partition, the son may still be held liable. If the decree is enforced after the Karta’s death and the son has divided the Karta’s property among themselves, the son will be held liable. If the Karta has incurred debt for family or moral reasons, a member of the joint Hindu family will be held liable. In other words, if property is needed to pay off a debt owed by a deceased ancestor and it is in the possession of a son or other descendant, that property will be considered to belong to the deceased who has appointed the son or other descendant as their legal representative.

Section 54: applies when a decree for partition or separate possession of a share of an undivided estate paying taxes to the government has been passed. In this case, the collector is responsible for dividing the estate or share. However, if the collector declines to do so, the civil court may divide the revenue-producing property. It is not necessary for the plaintiff to request the distribution of government revenue to invoke this section. This section addresses a situation where a civil court has the power to issue a decree but lacks the power to enforce it. The collector is responsible for executing the decree under this provision.

Transferor court’s power

When a court issues a decree and transfers it to another court with the appropriate authority, the original court loses its jurisdiction over the decree and can no longer enforce it. From that

point on, only the transferee court can hear applications for execution of the decree.

Transferee court’s power

According to Order 21 Rule 8 of the Code, a decree issued under Section 39 and transferred to another district for execution can be enforced by either the district court to which it was sent or by a subordinate court to which the district court may refer it. The powers of the transferee court are outlined in Section 42, which states that the court receiving a decree for execution has the same authority to enforce it as if it had been issued by that court independently. The Court has the power to punish those who obstruct the enforcement of a decree, and it can exercise this power as if it had issued the decree itself. The main purpose of granting this power to the transferee court is to ensure that the judgement debtor pays the debt or provides the decree holder with whatever else is required by the decree.

The Court is empowered to take the following actions:

• Transfer a decree to another court for execution under Section 39.
• Enforce a decree against the executor of a deceased judgement debtor in accordance with Section 50.
• Order the attachment of a decree.

The court to which a decree is transferred for execution lacks the authority to grant a transferee of the decree’s request for execution or to order execution at their request permission to enforce a decree passed against a firm against anyone who is not one of the parties listed in Rule 50 of Order XXI.

Conclusion

The above information provides the meaning of the term “Execution” which refers to the process of enforcing, upholding, or giving effect to an order or judgement issued by a court of justice. Order 21 of the Code contains rules that address various situations and provide remedies for judgement debtors, claimant objectors, and other parties besides the decree-holder.

The Code also protects the rights of judgement debtors. It provides several methods for enforcing a judgement, including arrest, detention of the judgement debtor, delivery of possession, attachment of property, sale, partition, appointment of a receiver, payment of money, and more. As a result, the laws are designed to provide redress to parties who have been wronged.

References

• Execution Petition: Process to execute Decree, Law Insider India, available at https://www.lawinsider.in/columns/execution-petition-process-to-execute-decree, last seen on 02/08/2023
• Concept Of Execution, Academike, available at https://www.lawctopus.com/academike/concept-execution, last seen on 02/08/2023
• MARINE GEOTECHNICS LLC v/s Coastal Marine Construction & Engineering Ltd., Lawyer Services, available at https://lawyerservices.in/MARINE-GEOTECHNICS-LLC-Versus-Coastal-Marine-Construction-and-Engineering-Ltd-2014-03-05, last seen on 02/08/2023
• Execution of Decree in Civil Court, legalserviceindia, available at https://www.legalserviceindia.com/legal/article-2628-execution-of-decree-in-civil-court.html, last seen on 03/08/2023
• The General Principles of Execution of a Decree, Law Column, available at https://www.lawcolumn.in/the-general-principles-of-execution-of-a-decree, last seen on 03/08/2023
• Kavita Chandra, Execution of a Decree under Code of Civil Procedure, 1908, ipleaders, available at https://blog.ipleaders.in/execution-decree/, last seen on 03/08/2023
• Execution of a decree under CPC, Indian Law Portal, available at https://indianlawportal.co.in/execution-of-a-decree-under-cpc/, last seen on 03/08/2023
• Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors on 23 April, 1970, Indian Kanoon, available at https://indiankanoon.org/doc/437299, last seen on 04/08/2023
• Mahadeo Prasad Singh & Anr vs Ram Lochan & Ors on 16 September, 1980, Indian Kanoon, available at https://indiankanoon.org/doc/1624821, last seen on 04/08/2023
• Executions, Chandigarh Judicial Academy, available at https://cja.gov.in/data/Executions.pdf, last seen on 04/08/2023
• Civil procedure code rama rao notes, last seen on 05/08/2023
• CPC ck takwani, last seen on 05/08/2023