Meaning of Execution and the Court which Executes
Chapter Twenty-Nine
Syllabus topic 3.1, "Meaning of execution"
Pages 163 to 167 of 365
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:
Meaning of Execution and the Court which Executes
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance; and
(b) where the Court of first instance has ceased to exist, or has ceased to have jurisdiction to execute it, the Court which, if the suit in which the decree was passed were instituted at the time of making the application for execution, would have jurisdiction to try that suit.
Take the two limbs separately, because each answers a real problem.
Limb (a) stops appellate decrees becoming unenforceable in practice. When the High Court allows an appeal and passes a decree, that decree is not executed by the High Court. The trial court executes it. Without this deeming provision a successful appellant would have to go back to a court that never passed the decree and had no power over it.
Limb (b) deals with courts that are abolished or reorganised, which happens whenever districts are redrawn. The decree does not die with the court. The court which would today have jurisdiction to try that suit takes over.
The Explanation to the section adds that the Court of first instance does not cease to have jurisdiction to execute a decree merely because, after the institution of the suit, the local limits of its jurisdiction have been altered and the subject matter has fallen within the limits of another Court.
So the safe two-sentence answer is: the expression means the court that actually passed the decree, and is deemed also to include the court of first instance where the decree was passed in appeal, and the court which would now have jurisdiction to try the suit where the court of first instance has ceased to exist or to have jurisdiction.
How execution is set in motion: Order XXI Rules 10 to 11A
Rule 10: where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree, or, where the decree has been sent to another Court, to that Court or to the proper officer of it.
Rule 11(1) allows an oral application in one narrow case: where a decree is for the payment of money, the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution by the arrest of the judgment-debtor, before the preparation of a warrant, if he is within the precincts of the Court.
Rule 11(2) is the general rule: in all other cases the application shall be in writing, signed and verified, and shall contain in a tabular form the particulars the rule lists, which include the number of the suit, the names of the parties, the date of the decree, whether any appeal has been preferred, whether any payment or adjustment has been made between the parties subsequent to the decree, whether any previous applications for execution have been made and their dates and results, the amount with interest or other relief granted, the name of the person against whom execution is sought, and the mode in which the assistance of the Court is required.
Meaning of Execution and the Court which Executes
Rule 11A requires that where an application is for the arrest of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.
Rule 17 governs the procedure on receiving the application: the Court shall ascertain whether the requirements of Rules 11 to 14 have been complied with, and if they have not, may reject the application or allow the defect to be remedied then and there or within a time fixed. Where the defect is remedied, the application is deemed to have been an application in accordance with law and presented on the date when it was first presented.
That last sentence matters for limitation, and it is the sort of detail an examiner likes.
A worked example
Uday obtains a decree for Rs. 6,00,000 against Vandana from the Civil Judge at Kalyan. Vandana appeals to the District Court, which dismisses the appeal and passes its own decree.
Which court executes? Under section 37(a), "the Court which passed the decree" is deemed to include the Court of first instance, so the decree is executed by the Civil Judge at Kalyan, not by the District Court.
Suppose the Kalyan court has since been abolished in a reorganisation. Section 37(b): the court which, if the suit were instituted today, would have jurisdiction to try it, executes the decree.
Suppose instead the local limits have merely been redrawn and the property now falls in another court's area. The Explanation applies: the Court of first instance does not cease to have jurisdiction merely because of that alteration.
How does Uday start? By a written application under Order XXI Rule 11(2), signed and verified, setting out in tabular form the suit number, the parties, the date of the decree, whether an appeal was preferred, any payment or adjustment since the decree, any previous execution applications and their results, the amount with interest, the person against whom execution is sought, and the mode of assistance required.
He wants Vandana arrested. Then Rule 11A applies as well: the application must state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.
Meaning of Execution and the Court which Executes
His application omits the previous execution applications. Rule 17: the Court may reject it, or allow the defect to be remedied. If it is remedied, the application is treated as having been presented on the date it was first presented, which may save it on limitation.
Change the facts. Suppose Uday had obtained not a decree but an order capable of execution. Section 36 applies the same machinery, so nothing changes.
What it does not mean
Execution is not part of the trial. It is a separate stage with its own machinery, and its own court.
The appellate court does not execute its own decree. Section 37(a) sends it to the court of first instance.
A decree does not die with the court that passed it. Section 37(b) supplies the successor.
A redrawing of local limits does not oust the trial court. The Explanation says so expressly.
An oral application is not generally allowed. Only in the narrow case in Rule 11(1), for a money decree, at the moment the decree is passed, where the judgment-debtor is in the precincts of the Court.
A defective application is not necessarily dead. Rule 17 allows the defect to be remedied, and the application then relates back to its original presentation.
Quick revision
Execution is the enforcement of a decree, governed by sections 36 to 74 and Order XXI.
Section 36: the execution provisions apply to orders as well as decrees.
Section 38: a decree may be executed by the Court which passed it, or by the Court to which it is sent.
Section 37: "the Court which passed a decree" is deemed to include (a) the Court of first instance where the decree was passed in appellate jurisdiction, and (b) where that court has ceased to exist or to have jurisdiction, the Court which would now have jurisdiction to try the suit. Explanation: a mere alteration of local limits after the institution of the suit does not oust the court of first instance.
Order XXI Rule 10: apply to the court which passed the decree, or the court to which it was sent. Rule 11(1): oral application only for a money decree, at the passing of the decree, for arrest, where the judgment-debtor is in the precincts. Rule 11(2): otherwise a written, signed and verified application in tabular form, with the particulars listed. Rule 11A: grounds for arrest to be stated or affidavited. Rule 17: defects may be remedied, and the application then relates back to the date of first presentation.
Meaning of Execution and the Court which Executes
Test yourself
1. What is meant by execution? Execution is the process by which a decree-holder compels the judgment-debtor to carry out the mandate of the decree, so that the decree-holder obtains the relief awarded to him. It is governed by sections 36 to 74 of the Code and by Order XXI.
2. What is meant by "the Court which passed a decree"? The court that actually passed it, and by section 37 it is deemed also to include the Court of first instance where the decree was passed in the exercise of appellate jurisdiction, and, where the Court of first instance has ceased to exist or to have jurisdiction to execute the decree, the Court which would have jurisdiction to try the suit if it were instituted at the time of the application for execution.
3. Which courts may execute a decree? Under section 38, the Court which passed it and the Court to which it is sent for execution.
4. Does a change in the local limits of a court's jurisdiction stop it executing its own decree? No. The Explanation to section 37 provides that the Court of first instance does not cease to have jurisdiction to execute a decree merely because, after the institution of the suit, the local limits of its jurisdiction have been altered and the subject matter has fallen within the limits of another court.
5. How is an application for execution made? In writing, signed and verified, in a tabular form containing the particulars listed in Order XXI Rule 11(2). An oral application is allowed only under Rule 11(1), where the decree is for the payment of money and the decree-holder applies at the time of the passing of the decree for the immediate arrest of the judgment-debtor, who is within the precincts of the court.
6. What happens if the execution application is defective? Under Order XXI Rule 17 the Court may reject it, or allow the defect to be remedied then and there or within a time fixed. Where the defect is remedied, the application is deemed to have been made in accordance with law and to have been presented on the date when it was first presented.
7. Do the execution provisions apply to orders? Yes. Section 36 provides that the provisions of the Code relating to the execution of decrees, including provisions relating to payment under a decree, apply so far as applicable to the execution of orders.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.