Meaning of Execution and the Court which Executes

In one line

Execution is the process by which the winner actually gets what the decree gave him, and this chapter answers the first two questions: what execution is, and which court does it.

Why execution is a separate stage at all

A decree is a piece of paper. It declares that the plaintiff is entitled to possession, or to Rs. 5,00,000, but it does not by itself move anybody out of a house or take money out of an account. The trial establishes the right; execution enforces it.

That separation is deliberate and it matters practically. The suit may have taken five years; the judgment-debtor may have moved to another State, or sold his property, or have nothing left. Execution is a fresh set of problems, and the Code gives it its own machinery, in sections 36 to 74 and in Order XXI, which is the longest Order in the Code.

Notice what that means for this Module. The syllabus expresses Module III in terms of Order XXI, but the powers exercised under it come from the sections, and none of sections 36 to 74 appears in any printed range of the syllabus. They are examined all the same.

The vocabulary

Two definitions from section 2 govern the whole of this Module, and they are set out in [Definitions].

Decree-holder, section 2(3): any person in whose favour a decree has been passed or an order capable of execution has been made.

Judgment-debtor, section 2(10): any person against whom a decree has been passed or such an order made.

Note that neither is confined to a plaintiff or a defendant. A defendant who wins his counterclaim is a decree-holder.

Section 36 then extends the whole machinery: the provisions of the Code relating to the execution of decrees, including provisions relating to payment under a decree, shall so far as applicable be deemed to apply to the execution of orders, including payment under an order. So an executable order is enforced exactly as a decree is.

Which court may execute: section 38

Section 38: a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

Two courts, and no more. Everything else in this part of the Code is about how a decree gets from the first to the second, which is [Transfer of a Decree for Execution].

"The Court which passed a decree": section 37

This is the question MU asked, and the answer is not the obvious one, because the expression is extended by the section.

Section 37: the expression "the Court which passed a decree", or words to that effect, shall in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include: