Execution ..

modes of execution
Introduction
There are three stages in any civil litigation:institution of
litigation,adjudication of litigation and implementation or executon of
litigation.
Execution: meaning
Execution means the process for enforcing or giving effect to the
judgement of the court, so as to enable the decree-holder to realise the
fruits of the decree. The execution is complete when the judgementcreditor or decree-holder gets money or other thing awarded to him by
the judgement, decree or order.
Illustration:
A files a suit against b for rs 10,000 and obtains a decree against him.
Here a is the decree-holder. B is the judgement-debtor, and the amount of
rs 10,000 is the judgement- debt or the decretal amount. Since the decree
is passed against b, he is bound to pay rs 10,000 to a. Suppose in spite of
the decree, b refuses to pay the decretal amount to a, and a can recover
the said amount from b by executing the decree through judicial process.
The principle governing execution of decree and orders are dealt
with in
Sections 36 to 74

( substantive law) and

Order 21 of the code ( procedural law).

Procedure in execution:
Section 51 to 54 talks about procedure in execution or mode for
execution.
Section 51 gives the power to court to enforce the decree in general. This
section defines the jurisdiction and power of the court to enforce
execution.
The application for execution of decree under this section may be either
oral (order 21 rule 10) or written (order 21, rule 11)and in strict
compliance with the rules 11(2) to 14 of order 21.
The party has to choose the mode of implementation of decree.
The court may execute decree as per the choice prayed by the decreeholder or as court may thinks fit.
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A decree may be executed either by the court which passed it or by the

court to which it is sent for execution (sec 38).

Mode of executing decree under section 51:

The decree may be enforced by
a. by delivery of any property specifically decreed. Property may be
movable or immovable
b. by attachment and sale of the property or by sale without
attachment of the property. .
c. by mode of arrest and detention.
d. by appointing a receiver..
e. by any such manner as the nature of the relief requires .it is the
residuary clause and comes into play only when the decree cannot
be executed in any of the modes prescribed under clause (a) to (d).
By delivery of any property..moveable and immoveable
Normally execution can be done by delivering to the person it has been
granted, and therefore it will be executed by seizing and delivering that
property. It may be money or specific moveable property
Suppose the judgment debtor refuses to release that property he can be
arrested.
By attachment and sale or sale without attachment
Sometimes mere attachment the property can be made. Rules 41 to 57 of
Order 21 deal with the manner in which various properties are to be attached.

i.

ii.

iii.

.where the
property to be attached is agricultural produce, attachment of
the produce is made by fixing a warrant of attachment in the field
where the property is growing or where it is stored or where the
judgemental debtor(JD) resides or works for gain.
If the produce is subject to speedy decay or when the expense of
keeping it in custody is likely to exceed its value,the attaching office
may at once sell it.(rule 43)
Rules 44 and 45 deal with the attachment of agricultural produce

Rule 46 provides that where the movable property is

(i)

a debt, the attachment would be by prohibiting the recovery of the

debt or the debtor from making payment thereof; or

(ii)

a share in a body corporate, the attachment would be by prohibiting

the transfer of the shares or from receiving any dividend.

(iii)

iv.

v.
vi.

vii.

any other movable property, the attachment would be by

prohibiting the person in possession of the property from giving
possession to the judgment debtor.
In case the judgment debtor has a co-share in a movable property, then the
attachment will be by a notice prohibiting him from transferring his share/interest
or in any manner creating a charge on the share in the property.
In case the property is a negotiable instrument the attachment shall be made
by way of an actual seizure and brought to the court.
Rules 49 and 50 provide for attachment of property of a partnership firm.

Attachment of salary
Firstly, one has to issue a notice to show cause as to why
salary can not be attached and served on the JD .If the JD does
not show sufficient cause, then the court will make an order
attaching one third of the salary of the JD.
The order will require that the employer deducts one third of
the salary and forfeits to the court or the advocate of the
decree holder if the court so directs.The reasoning is that one
third is what a person saves and therefore can afford.

Immoveable property
Order 21 rule 54 and sections 60 to 64 deal with attachment of
immoveable property.
Attachment is by registering a prohibitory order against JD in whose
name the property is registered. The order prohibits the JD from
transferring, charging the property in any way and prohibits 3rd parties
from transferring the property,
The order is against the JD or any party with an interest.
The attachment against immoveable becomes complete and effective
when a copy of the prohibitory order is registered against the title.
Sale(sections 65-67 and order 21,rules 64-73)
After the attachment of the JD property is made,the decree holder may
apply to the court to sell the property and pay the proceeds. sale can only
be conducted by public sale, by an officer (auctioneer) appointed by the
court
a. Proclamation... It is done by publishing in court langauage in local
news papers or in wall posters,by beat of drum and the manner
prescribed. Notice should state date and time and place of sale, and
usually the amount that is intended to be recovered or the

b.

c.

d.
e.

f.
g.

encumbrance of the property, and any other information that is

material as directed by the court.
Time of sale ..The sale is effected after30 days in the case of
immovable property and 15 days in the case of movable property of
publication of notice.These time periods can be changed if the
goods are perishable or subject to decay.
Adjournment...The court still has the discretion to adjourn the sale
and usually the officers in charge of the sale will be served with
notice. If adjourned by more than 7 days a fresh public notice must
be given.
Every sale shall be stopped if before the sale is completed.
The decree holder must not participate at the auction without
the permission of the court and if he participates directly or through
another person, the court may set aside that sale and the court may
set aside the sale if the JD applies or if any other person whose
interests have been affected by the sale applies to the court.
If it turns out that there was improper sale, the cost of that sale and
proceedings will be borne by the decree holder
Confirmation of sale

If no application is filed by any party to set aside the sale under rules
89,90and 91 or any application fled under the above rule is dismissed,
the sale becomes absolute.The sale shall be made absolute after 60
days of sale.The court shall pass an order confirming sale and a sale
certicficate will be issued to the purchaser.
Once the property is sold the proceeds of sale are paid to the decree
holder or his advocate and if there is any balance it is paid to the JD.
If after auctioning the proceeds are not enough to satisfy the decree,
then the decree holder can look for any other property that the JD may
have if the warrants are still valid, one need not make a fresh application.
Arrest and detentions
Arrest
a. Judgement creditor makes an application for execution of money
decree
b. The court issues notice under rule 37 to JD to show cause as to why
he should not be committed to civil jail.
c. The JD may appear before court and plead that he can not pay due
to poverty or other sufficient reasons.(rule40)
d. If the court is satisfied,it can pass an order rejecting the application
for arrest.Otherwise ,the court shall issue a warrant for the arrest of
JD
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e. As per sec 56 of CPC, the court shall not order the arrest and
detention in civil prison of a woman in execution of a decree for
payment of money.
Detention
Every person is detained in civil prison as under
3 months...if payment exceeds above Rs 5000
6 weeks.....if payment is Rs 2500 to 5000
The person can be released before such period if he satisfies terms of
decree.
Appointment of receivers.
Appointment of receivers is an interim measure of mode of execution.

Garnishee proceedings
(Order 21 ,rules 46A to 46I)
Garnishee order is an order of the court ,issuing under order 21 ,rule 46 of
CPC directing the the third party,usually banks to to stop payment to the
customer whose name is mentioned in the order.The creditor at whose
instance the order is issued is called judgement creditor ,the customer
is called judgement debtor and the bank is called the garnishee. A
notice is issued to the bank before issue of any order.
In case of order nisi the banker is prohibited from paying the amount due
to the customer.In case of order absolute the entire balance in the
account of debtor is attached.Garnishee order can be issued only if the
garnishee is residing within the jurisdiction of the court.