Introduction

The litigation consists of three stages, initiation of litigation, adjudication of litigation,

and implementation of litigation. The last stage of litigation, which is the implementation
of litigation is known as an execution. Once a decree or judgment is passed by the court, it
is the obligation of the person against whom the judgment is passed (judgment-debtor), to
give effect to the decree so as to enable the decree-holder to enjoy the benefits of the
judgment.

By execution, a judgment-debtor is compelled to carry out the mandate of the decree or

order. Execution implies giving effect to an order or judgment of a court of justice. When
the decree-holder gets the thing granted to him by judgment, decree or order, the
execution is complete. 

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing
or enforcing or giving effect to an order or a  judgment passed by the court of justice. In
simple words “execution” means the process of enforcing or giving effect to the decree or
judgment of the court, by compelling 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. Here X would be
called the decree-holder,  Y is the judgment-debtor, and the amount of Rs 20,000 is the
judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him.
Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by
execution through the judicial process. The principles governing the execution of a decree
or order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code
which provides for procedural law.  

Execution proceedings under CrPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of
the code relating to the execution of orders and decree and stated that the Code contains
elaborate provisions which deal with all questions regarding executability of a decree in all
aspects. 
The Court further observed that numerous provisions of Order 21 take care of various
situations providing effective remedies to judgment-debtors, decree-holders and claimant
objectors. In the cases, where provisions are not capable of giving relief inadequate
measures and appropriate time, to an aggrieved party, then filing a regular suit in the civil
court is the solution.

The Court further explained that the judicial quality of the remedy under Civil Procedure
Code is considered to be superior as compared to other statutes therefore, the judges are
expected to do better as they are entrusted with the administration of justice.

Who can make application for execution?

Application for execution can be made by:

1. The decree holder himself.

2. His legal representative if the decree holder is dead.
3. Any person claiming under the decree holder.
4. Transferee of Decree holder who has given notice to transferor and judgement
debtor.
5. Any one or more of the Decree holders where it is for benefit of all and no
contrary intention is indicated.

Against whom the application for execution can be made?

Execution decree can be made only against the judgment debtor, if he is alive or against
legal representatives of judgment debtor.

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 in India

The Code lays down the procedure for execution of foreign judgments and decrees in
India. While enforcing a foreign judgment or decree in India it should be ensured that the
judgment or decree is a conclusive one, given on the merits of the case and by a court
having competent jurisdiction.

Foreign judgment or decree needs to be conclusive

A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays
down the test for conclusiveness of a foreign judgment or decree, which says that a
foreign judgment would be conclusive in all cases except the following:

1. When a court of competent jurisdiction has not pronounced it;

2. When it has not been pronounced on the merits of the case;
3. When it has been based on a wrong view of international law or a refusal to
recognize the law of India in cases in which such law is applicable;
4. When the proceedings carried out while obtaining the judgment are opposed to
natural justice;
5. When such judgment has been obtained by fraud;
6. When it sustains a claim that had been based on a breach of any law in force in
India.

Thus, a foreign judgement or decree shall pass the seven tests mentioned above.
Otherwise, such foreign judgment or decree cannot be enforced in India as such judgment
or decree will not be regarded as conclusive if it fails any of these tests.

Mode of enforcement of a foreign judgment or decree

Two ways in which a decree or foreign judgment can be enforced in India are as follows:
  Where the decree or judgment has been given by a court in a reciprocating
territory;

 Where decree or judgment has been given by a court in a non-reciprocating

territory.

1. Execution of foreign decree of a reciprocating territory in India

According to Section 44A of the CPC, a decree of any superior court of a reciprocating
territory shall be executed in India as that has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside India which the

Central Government has declared to be a reciprocating territory, by notification in the
Official Gazette, and “superior courts“, with reference to any reciprocating territory,
means such courts that would be specified in the said notification.

Therefore, a judgment which has been pronounced by a court of a reciprocating territory

can be enforced in India as an Indian decree by filing an execution application. A certified
copy of a decree of any superior court of a reciprocating territory should be filed in a
District Court, once this is done, the decree shall be executed as if it had been passed by
the District Court of India and the provisions governing execution which are laid down in
Order 21 of the CPC will be applicable to the decree.

While filing the execution application the original certified copy of the decree shall be
filed along with a certificate from the superior court stating the extent to which the
decree has been satisfied or adjusted.

2. Execution in case of decrees from non-reciprocating territories

In the cases where a judgment or decree has not been pronounced by a court of a
reciprocating territory, it can be executed only when a fresh suit on that foreign
judgment is filed in a court of  India which has competent jurisdiction to entertain the
same.

The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine Construction &
Engineering Ltd., observed that when a decree has been pronounced by a court of a non-
reciprocating foreign territory, it cannot be executed unless a fresh suit has been filed by
the decree-holder on that foreign decree or on the original cause of action, or both. The
suit must be filed within a period of three years from the date of the judgment or decree.
The person seeking execution shall show that the foreign decree passes the tests of
Section 13. 

The court further observed that Section 13 of the Code provides substantive law and
Section 44A of the Code is an enabling provision and it enables a decree-holder to put a
decree obtained from a court of a reciprocating territory into execution. Section 13
clearly expresses the principles of private international law, that a court will not enforce a
foreign judgment of a competent court. 

Execution of Indian decrees in a foreign territory

Section 45 of the Code is related to the execution of decrees outside the territory of
India. It states that a Court has the power to send a decree for execution to a Court
outside India which has been established by the Central Government’s authority. It should
be ensured that the State has, by notification in the Official Gazette, declared the said
section can apply to such Court. A plain reading of the aforesaid  provision yields the
following features:

1. The decree which has to be executed should be of an Indian Court and it should be
for execution in a foreign territory.

2. The Central Government should have established the transferee court in such
foreign territory.

3. The State Government should have declared by notification in the Official Gazette
that this section will apply to the said foreign Court.

The provision, therefore, prescribes the prerequisite conditions for the execution of an
Indian decree outside the country. Therefore, in the absence of either of the aforesaid
conditions in Section 45, an Indian Court has no jurisdiction to send its decree for
execution to a Court not situated in India.

Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from executing a decree
simultaneously at more than one place against the property of the judgment-debtor.

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court observed that
“simultaneous execution proceeding in more than one place is possible but the power shall
be used in a restricted manner, in exceptional cases by imposing proper terms so that the
judgment debtors do not face any hardship because of several executions are being
allowed to be proceeded with at the same time.” Therefore, simultaneous execution
proceedings are not without jurisdiction or illegal. 

Moreover, as per Section 39 of the Code, simultaneous execution of a decree is permissive

in nature as it provides for execution of a decree either by the Court of first instance or
by the Court to which it is sent for execution. 

Procedure in execution

Section 51 to 54 of the Code talks about the procedure in execution.

Section 51

The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may
execute decree as per the mode of implementation prayed by the decree-holder or as the
court deems fit.

Mode of executing decree

1. By delivery of any property (movable or immovable) specifically decreed. 

2. By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power to
attach the property.
3. By arrest and detention. However, this mode should not be exercised without giving
a reasonable opportunity to the judgment-debtor, in the form of a show-cause
notice as to why he should not be imprisoned. 
4. Execution by appointing a receiver
5. If any other mode apart from the ones mentioned in clause(a) to (c) needs to be
used in the execution of a decree then clause(e) comes into play.

Section 52

This section deals with the cases where the decree is passed against the legal
representative of the judgment-debtor (deceased). So long as the property of the
deceased remains in the hands of a legal representative, a decree can be executed against
the property, if it is for the payment of money out of the property of the deceased and if
the decree has been passed against the party as the legal representative of the deceased
person.
In a situation where the property which is in the possession of the judgement-debtor
came in the hands of the legal representative and it has not been duly applied by him, the
court will enforce the execution of the decree against him as if the decree was to the
extent passed against him personally.

Section 53

The Section states that when a property is liable for payment of a debt of a deceased
ancestor and it is in the hands of a son and descendant, then the property will be deemed
to be of the deceased which has as his legal representative come into the hands of the son
or other descendants.

Section 54

When a decree has been passed for partition or for the separate possession of a share of
an undivided estate for the payment of revenue to the government, this section comes into
play. The partition of the estate or share needs to be made by the collector, but if the
collector denies making the partition of the revenue paying property, then the civil court
can do so. To attract the provisions of this section, the plaintiff asking for the division of
government revenue is not deemed as an essential condition.

Powers of the transferor court

Once a court which has passed a decree and transferred it to another court of competent
jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute the
decree. Then, only the transferee court can entertain an application for execution.

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has
been sent for execution to another district, it may be executed by either the district
court to which it was sent or by a subordinate court which has competent jurisdiction, to
which the district court may refer it.

Section 42 provides for the powers of the transferee court and states that the Court to
which a decree has been sent for execution shall have the same powers in execution of
such decree as if it had been passed by itself.

The Court has the power to punish the persons who cause obstructions in the execution of
the decree and the power shall be exercised by the court as if the decree has been passed
by it. The main object of giving such powers to the transferee court is to ensure that the
judgment-debtor pays the money or gives such other thing to the decree-holder as would
be directed by the decree.

The Court will have the following powers, namely:

1. To send the decree for execution to another Court under section 39.

2. To enforce execution of a decree against the legal representative of the deceased
judgment-debtor under section 50.
3. To order attachment of a decree.

However, the court to which a decree is sent for execution will not have the power to
order execution at the instance of the transferee of the decree and the power to grant
leave to execute a decree passed against a firm against any person, other than a person
referred to in Rule 50 of Order 21.

Powers of executing court

The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may
execute decree as per the mode of implementation prayed by the decree-holder or as the
court deems fit.

Conclusion

It clearly appears from the above discussion, that execution means implementing or
enforcing or giving effect to an order or a judgment passed by the court of justice. The
provisions contained in Order 21 covers different types of situation and provide effective
remedies to the judgment-debtors, claimant objectors and third parties apart from the
decree-holder.

The Code takes care of the rights of judgment-debtors too. Various modes of execution
of a decree are also provided by the Code which includes arrest, detention of the
judgment-debtor, delivery of possession, attachment of the property, by sale, partition,
the appointment of receiver and payment of money etc. Thus, the provisions are rendered
effective or capable of giving relief to an aggrieved party.