INTRODUCTION

Execution means giving effect to the Decree which is produced before an Executing Court. The Code does not define "execution" of decrees and orders. In general legal sense, execution means enforcement of decrees and orders by the Court itself through its processes so that the decree holder realises the fruits of decrees or orders. Sections 36-74 and Order 21 of the Code of Civil Procedure, 1908 deals with execution of decrees and orders.

In Ghanshyam Das. v. Anant Kumar Sinha, dealing with provision of the Code of Civil Procedure relating to execution of decree and Orders, stated, "so far as the question of executability of decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all aspects.

The numerous rules of Order 21 of the code take care of different situations proving effective remedies not only to judgment-debtors and decree holders but also to claimant objectors, as the case may be.

In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measures and appropriate time, the answer is a regular suit in the Civil Court".

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 judgment-debtor, and the amount of Rs 10,000 is the judgment-

debt or the decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000 to A. If B fails or refuses to pay the decretal amount to A, he will recover the said amount from B by executing the decree through judicial process.

Where the holder of decree desires to execute it, he shall apply to the court which passed the decree or to the officer appointed on this behalf, or such other competent court

And where the decree is for the payment of money, the decree can be executed on the oral request of the decree-holder at the time of passing decree by the court.

COURTS BY WHICH DECREES MAY BE EXECUTED AND PROCEDURE OF EXECUTION

The provisions of this Code relating to the execution of Decree (including provisions relating to payment under a decree) shall so far as they are applicable be deemed to apply to the execution of Orders (including payment under an Order).

Section 37 provides definition of the Court which passed a decree. The expression "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:

• Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
• Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such a suit.

Explanation: The Court of first instance

does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.

Sections 38-45 and Rules 3-9 of Order 21 of the Code inter alia deal with the Courts by which decrees may be executed and also the procedure for execution of decrees and orders.

Section 38 lays down the general provision regarding Courts by which decree may be executed and provides that a decree may be executed

• Either by the Court which passed it, or 
• By the Court to which it is sent for execution.

Sections 39-42 of the Code inter alia deals with transfer of decree. These provisions also deal with the powers and duties of the transferring and transferee Court with regard to execution of decrees.

Transfer of Decree: Section 39 deals with the power of transfer of decree by the Court which passed it.

• Section 39 (1) provides that the Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction.
• If the person against whom the decree is
• passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
• If such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
• If the decree directs the sale or delivery of immovable property situated outside the local limits of the jurisdiction of the Court which passed it, or
• If the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

Section 39(2) provides that the Court which passed a decree may, of its own motion, send it for execution to any subordinate Court of competent jurisdiction.

Section 39(3) creates legal fiction with regard to competence of Court and provides that, for the purposes of Section 39, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.

Section 39(4) is in the nature of a saving clause and provides that nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.

Section 40 inter alia deals with the Transfer of decree to Court in another State and provides that where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.

Section 41 of the Code deals with the certification of the result of execution proceedings and provides that the Court to which a decree is sent for execution shall

• Certify to the Court which passed it the fact of such execution, or
• Where the former Court fails to execute the same the circumstances attending such failure.

Section 42 inter alia deals with the powers of Court in executing transferred decree.

Section 42(1) provides that:

• The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself.
• All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree.
• The order of such Court in executing such decree shall be subject to the same rules in respect of appeal as if the decree had passed by itself.
• Section 42(2) provides that, without prejudice to the generality of the provisions of Section 42(1), the powers of the Court under Section 42(1) shall include the following powers of the Court which passed the decree, namely;

1. Power to send the decree for execution to another Court under Section 39.
2. Power to execute the decree against the legal representative of the deceased judgment-debtor under section 50.
3. Power to order attachment of a decree.

Section 42(3) provides that a Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.

Section 42(4) provides that nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution any of the following powers, namely

• Power to order execution at the instance of the transferee of the decree;
• In the case of a decree passed against a firm, power to grant leave to execute such decree against any person, other than a person referred to in Rule 50(1)(b) or Rule 50(1) (c) of Order 21 of the Code.

Order 21, Rule 3 of the Code deals with execution in respect of a land situated in more than one jurisdiction and provides that where immovable property forms one estate or tenure situated within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate or tenure.

Order 21, Rule 4 deals with transfer of decrees to the Court of Small Causes and provides that where a decree has been passed in a suit of which the value as set forth in the plaint did not exceed two thousand rupees and which, as regards its subject-matter, is not excepted by the law for the time being in force from the cognizance of either a Presidency or a Provincial Court of Small Causes, and the Court which passed it wishes it to be executed in Calcutta, Madras or Bombay such Court may send to the Court of Small Causes in Calcutta, Madras or Bombay, as the case may be, the copies and certificates mentioned in Order21 Rule 6; and such Court of Small Causes shall thereupon execute the decree as if it had been passed by itself.

Order 21, Rule 5 deals with the mode of transfer and provides that where a decree is to be sent for execution to another Court, the Court which passed such decree shall send the decree directly to such other Court whether or not such other Court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction.

Order 21, Rule 6 deals with the procedure where the Court desires that its own decree shall be executed by another Court and provides that the Court sending a decree for execution shall send:

• A copy of the decree;
• A certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and
• A copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

Order 21, Rules 7 & 8 are the consequential provisions of Order 21, Rule 6. Order 21, Rule 7 provides that the Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.

Order 21, Rule 8 provides that where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction.

Order 21, Rule 9 deals with Execution by High Court of decree transferred by other Court and provides that where the Court to which the decree is sent for execution is a High Court, the decree shall be executed by such Court in the same manner as if it had been passed by such Court in the exercise of its ordinary original civil jurisdiction.

FOREIGN DECREES

Sections 43-44A inter alia deal with the execution of foreign decrees (decrees passed by Civil Courts in places to which the Code does not extend) in India.

Section 43 provides that a Civil Court in India has also the power to execute a decree passed by a Court:

• Established in India to which the provisions of the Code do not extend, or 
• Established or continued outside India by the authority of the Central Government.

Section 44 deals with execution of decrees passed by Revenue Courts in places to which the Code does not extend and provides that the State Government may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend, or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State.

Section 44A deals with execution of decrees passed by Courts in reciprocating territory.

• Section 44A(1) creates legal fiction and provides that where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
• Section 44A(2) provides that a certificate from such superior Court along with the certified copy of the decree shall be filed stating the extent, if any, to which the decree has been satisfied or adjusted. Furthermore, for the purposes of proceedings under Section 44A, such certificate shall be conclusive proof of the extent of such satisfaction or adjustment.
• Section 44A(3) provides that, as from the filing of the certified copy of the decree, the provisions of section 47 shall apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified from Sections 13(a)- 13(f).

Explanation 1 of Section 44A defines "Reciprocating territory" and "Superior Courts". As per the Explanation,

1. "Reciprocating territory" means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and,
2. "Superior Courts", with reference to any reciprocating territory, means such Courts as may be specified in the said notification.

Explanation 2 of Section 44A defines a "Decree" with reference to a superior Court to mean any decree or judgment of such Court under which a sum of money is payable. Howevercer, such sum must not be a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty. Explanation 2 further provides that "Decree" with reference to a superior Court, does not include an arbitration award, even if such an award is enforceable as a decree or judgment.

Section 45 deals with execution of decrees outside India and provides that so much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established by the authority of the Central Government outside India to which the State Government has by notification in the Official Gazette declared this section to apply.

QUESTIONS TO BE DETERMINED BY EXECUTING COURT

Section 47(1) provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

Section 47(2) stands omitted vide the CPC Amendment Act of 1976.

Section 47(3) provides that where a question arises as to whether any person is E or is not the representative of a party, such question shall, for the purposes of Section 47, be determined by the Court.

Explanation I of Section 47 provides that for the purposes of Section 47, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II of Section 47 creates legal fiction and provides that

• For the purposes of Section 47, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
• All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of Section 47 of the Code.

MODES OF EXECUTING DECREE

Section 51 read with Order 21 of CPC deals with various modes of execution. Section 51 specifies different modes while Order 21 deals with the procedural aspect of executing such a decree.

The Court may, on the application of the decree-holder, order execution of the decree in the following manner:

• By delivery of any property specifically decreed;
• By attachment and sale or by the salt without attachment of any property;
• By arrest and detention in prison [for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section];
• By appointing a receiver; or
• In such other manner as the nature of the relief granted may require:

By Delivery of any Property Specifically Decreed

Execution In Case of Movable Property

• Rule 31 of Order 21 deals with execution of decree for specific movable property.
• A decree for specific movable property or a share in it can be executed by seizing and delivering the property to the entitled party or their appointee.
• Alternatively, the judgment-debtor may be detained in civil prison, or their property may be attached, or both methods may be used.
• If the attachment remains in force for three months and the judgment-debtor does not comply with the decree, the decree-holder can apply to have the property sold.
• The proceeds from the sale may be used to pay the decree-holder the amount fixed by the decree, if specified, or compensate the decree-holder as the court deems fit.

1. Any remaining balance is to be paid to the judgment-debtor upon their application.
2. The attachment ceases if the judgment-debtor obeys the decree and pays all execution costs, or if no application to sell the property is made within three months, or if made, it is refused.

Execution In Case of Immovable Property

• Rule 35 of Order 21 deals with execution of decree of immovable property. For a decree involving the delivery of immovable property, possession is delivered to the entitled party or their appointee, and if necessary, by removing any person bound by the decree who refuses to vacate.
• For joint possession, possession is delivered by affixing a copy of the warrant on the property and proclaiming the decree publicly.
• If the person in possession of a building does not allow access, the Court may, after providing reasonable warning and ensuring the privacy of any women as per customs, take necessary actions to deliver possession to the decree-holder.

RESISTANCE OF DELIVERY OF POSSESSION TO DECREE-HOLDER OR PURCHASER

As per Rule 97(1), where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

Further as per Rule 97(2), where any application is made under sub-rule (1) of Rule 96, the Court shall proceed to adjudicate upon the application in accordance with the provisions contained in CPC.

Orders After Adjudication

As per Rule 98(1), upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),

• Make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
• Pass such other order as, in the circumstances of the case, it may deem fit.

As per Rule 98(2), where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

Dispossession by Decree Holder or Purchaser

As per Rule 99(1), where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

Further as per Rule 99(2), where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

Order to be Passed Upon Application Complaining of Dispossession

As per Rule 100, upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,

• Make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
• Pass such other order as, in the circumstances of the case, it may deem fit

Question to be Determined

As per Rule 101, all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

Rules not Applicable to Transferee Lite Pendente

As per Rule 102, nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

And as per Explanation of Rule 102, in this rule, "transfer" includes a transfer by operation of law.

By Attachment and Sale of any Property

Sections 60-64 and Rules 41-57 of Order 21 deal with execution by means of attachment of property.

• Attachment means seizure of the property of the judgment-debtor by the legal authority at the instance of the decree holder.
• Attachment of property is a preliminary step to the sale of the property in execution proceedings. The object behind that is to give notice to the judgment-debtor not to alienate his property to anyone and also to the general public not to purchase or deal with such property.
• A decree-holder may opt for the enforcement of his decree by attachment and sale of the property of the judgment-debtor. For that purpose, the decree-holder is required to apply to the court. If such property is situated within the territorial jurisdiction of the court, an order for attachment and sale may be passed.

It must be kept in mind that attachment before judgment as provided under Order 38, Rule 5 is different from the attachment in execution proceedings.

Property Liable to Attachment

As per Section 60(1) of the Code, the following property is liable to attachment and sale in execution of a decree, namely:

• Immovable Property: Lands, houses or other buildings,

• Movable Properties

1. Goods, money, bank-notes,
2. Cheques, bills if exchange, hundis, promissory notes,
3. Government securities, bonds or other securities for money,
4. Debts, shares in a corporation and,

All other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf.

• Section 60(1) is not exhaustive. After enumerating various kinds of properties liable to attachment and sale, the Section enunciates a general principle under which all other properties which are saleable and over which the judgment-debtor has disposing power exercisable for his own benefit are liable to attachment and sale.
• Hence, in the absence of any provision in the CPC, the right to occupy a flat in a tenant co-partnership housing society is liable to attachment and sale in execution of a decree against a member in whose favour or for whose benefit the same has been allotted by the society.
• Example of Saleable Property: Share of a partner in Partnership business; the right, title and interest of a Hindu father in a Joint family property; Equity of redemption of a mortgagor in mortgaged property, etc.

Object of Section 60 is three fold:

For Knowledge of Decree Holder: Decree-holders must be aware as to which properties are liable to attachment. So that he can move applications accordingly and obtain court's order against such properties only.

To Safeguard the Interest of Judgment Debtor

• It protects a judgment-debtor by granting exemption to certain properties from attachment and sale.
• It is ensured that the judgment-debtor gets a certain minimum income for his survival.

To Restrict the Rights of Decree-Holder: Such declaration of properties as attachable and non-attachable, restricts the rights of decree holders to realise the amount of the decree from the property of the judgment debtor.

PROPERTY

The term "property" includes both movable and immovable property. The term 'property' used in Section 60 is in Its widest and most generic legal sense. It is indicative and descriptive of every possible interest or right a person can have in anything which is of physical possession and subject of ownership. The Section uses the term "property" and not claim or right.

The term "property" includes not only tangible property but also an intangible interest therein.

mean "Property" does not only proprietorship rather it includes any right and power in respect of the same, for example, the right of a tenant is a property if the easement of tenancy is not restricted to the tenant personally.

Property not Liable to Attachment

As per the Proviso to Section 60(1), the roperty of following particulars shall not be able to attachment or sale, namely:

• The necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman.
• Tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the Section 61;
• Houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to and occupied by. (In Parvathy v. Indian Bank, it was held that the right under
• Section 60 (1)(c) is a personal right available to an agriculturist or a labourer or domestic servant, it is neither heritable nor alienable.

1. An agriculturist, or
2. A labourer, or
3. A domestic servant.

Books of accounts can not be attached in execution of a decree. But a Judgment debtor may be required to produce his books of accounts in court.

A mere right to sue for damages.

Any right of personal service.

Political pensions and stipends & gratuities:

1. Allowed to pensioners of the Government or of a local authority or of any other employer,
2. Payable out of any service family pension fund notified in the Official Gazette the Central Government or the State Government on this behalf.

The wages of labourers and domestic servants, whether payable in money or in kind;

Salary to the extent of the first one thousand rupees and two third of the remainder in execution of any decree other than a decree for maintenance.

Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently,

for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree.

One-third of the salary in execution of any decree for maintenance.

The pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act, 1950, or the Navy Act, 1957 applies.

All compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment.

All deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968, for the time being applies, in so far as they are declared by the said Act as not to be liable to attachment;

All moneys payable under a policy of insurance on the life of the judgment-debtor;

The interest of a lessee of a residential of building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;

Any allowance forming part of the emoluments of any government servant or servant of railway company/local authority which the Appropriate Government may by notification in the Official Gazette declare to be exempted from attachment, and any subsistence grant or allowance made to any such servant while under suspension.

An expectancy of succession by survivorship or other merely contingent or possible right or interest.

A right to future maintenance.

Any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a decree; and

Where the judgment-debtor is a person liable for the payment of land-revenue; any movable property which, under any law for the time being applicable to him, is exempted from sale for the recovery of an arrear of such revenue.

Sale how Made

Rule 65 provides that every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint on this behalf, and shall be made by public auction in manner prescribed.

Proclamation of Sales by Public Auction: Rule 66 provides the method of conducting sale through proclamation. It shall specify following things:

Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible:

• the property to be sold [or, where a part of the property would be sufficient to satisfy the decree, such part];
• the revenue assessed upon the estate or past of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
• any incumbrance to which the property is liable;
• the amount for the recovery of which the sale is ordered; and
• every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:

Setting Aside Sale

Once the property is sold, it cannot be set aside except on the grounds mentioned under Rule 89-91 which are as follows:

Rule 89 deals with setting aside sale by making deposits.

• When immovable property is sold in execution of a decree, anyone with an interest in the property at the time of sale or application can apply to have the sale set aside by depositing in court a sum equal to 5% of the purchase money for the purchaser and the decree amount specified in the sale proclamation for the decree-holder, minus any amount already received.
• If a person applies under rule 90 to set aside the sale, they cannot apply under this rule unless they withdraw the first application. This rule does not relieve the judgment-debtor from any liabilities for costs and interest not covered by the sale proclamation.

Rule 90 deals with setting aside sale on grounds of irregularity or fraud.

• As per Rule 90(1) where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.
• As per Rule 90(2), no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
• And as per Rule 90(3), no application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Rule 91 deals with setting aside of sale on the ground of judgment debtor having no saleable interest.

• The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

PROPERTY ATTACHED IN EXECUTION OF DECREES OF SEVERAL COURTS

As per Section 63, where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realise such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

As per Explanation for the purposes of sub-section (2), "proceeding taken by a Court" does not include an order allowing to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.

Private Alienation of Property After Attachment to be Void

As per Section 64, where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.

As per explanation, for the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

Arrest and Detention

Arrest and detention of the judgment-debtor are one of the modes of execution of decrees and orders. Section 51(c), Sections 55-59, Section 135 and 135A and Rules 37-40 of Order 21 of the Code inter alia deal with execution by arrest and detention.

Section 55 outlines the general procedures for the arrest and detention of a judgment-debtor in the execution of decrees and orders.

Section 55(1) provides that a judgment-debtor can be arrested at any hour and on any day in the execution of a decree. They must be brought before the Court as soon as practicable.

The detention can be in the civil prison of the district where the Court is located, or if that prison lacks suitable accommodation, in another place appointed by the State Government.

Following directions are to be kept in mind while making arrest:

• Arrests cannot be made by entering a dwelling-house after sunset and before sunrise. (First Proviso)
• An outer door of a dwelling-house cannot be broken open unless it is occupied by the judgment-debtor, and they refuse or prevent access. If access to the dwelling-house is gained, any inner door can be broken open if it is believed that the judgment-debtor is inside. (Second Proviso)
• If a room is occupied by a woman who is not the judgment-debtor and does not appear in public according to local customs, the officer must give her notice and allow reasonable time and facility to withdraw before entering the room for making the arrest. (Third Proviso)
• If the decree is for the payment of money and the judgment-debtor pays the decree amount and arrest costs to the arresting
• officer, the officer must immediately release the judgment-debtor. (Fourth Proviso)

Section 55(2): The State Government may declare, via notification in the Official Gazette, that certain persons or classes of persons whose arrest might pose a danger or inconvenience to the public are not liable to arrest in execution of a decree, except in accordance with procedures prescribed by the State Government.

Prohibition of Arrest or Detention of Women in Execution of Decree for Money: Section 56 deals with the prohibition of arrest or detention of women in execution of decree for money and provides that, notwithstanding anything Part II of the Code, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

Subsistence-Allowance: Section 57 deals with subsistence-allowance and provides that the State Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors.

Detention and Release: Section 58 deals with Detention and release of the arrested person.

• Section 58(1) provides that every person detained in the civil prison in execution of a decree shall be so detained
• Where the decree is for the payment of a sum of money exceeding five thousand rupees for a period not exceeding three months, and
• Where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks.

Section 58(1A) declares that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed two thousand rupees.

Section 58(2) provides that a judgment-debtor released from detention under Section 57 shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

Release on Ground of Illness: Section 59 deals with release of the arrested person on grounds of illness.

Section 59(1) provides that, at any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on the ground of his serious illness.

Section 59(2) provides that, where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.

Section 59(3) provides that, where a judgment-debtor has been committed to the civil prison, he may be released therefrom:

• By the State Government, on the ground of the existence of any infectious or contagious disease, or
• By the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness.

Section 59(4) provides that a judgment-debtor released under this section may be re-arrested, but the period of his detention in civil prison shall not in the aggregate exceed that prescribed by section 58.

Appointment of Receiver

This is another mode of execution of decree as mentioned under Section 51(d) which has been dealt under Order 40 the Code. This remedy depends upon the completion discretion of the Court and no party is allowed to claim it as a matter of right.

The concept of a receiver under the Civil Procedure Code (CPC) pertains to a person appointed by the court to manage and protect property or assets that are the subject of litigation. This appointment is typically made to preserve the property during the pendency of the legal proceedings, ensuring that its value is maintained and the interests of all parties involved are safeguarded.

MISCELLANEOUS PROVISIONS

Decree for Specific Performance, Restitution of Conjugal Rights, or Injunction

Rule 32 outlines the procedures and mechanisms for enforcing court decrees in cases involving specific performance of contracts, restitution of conjugal rights, or injunction.

Enforcement of Decree (Rule 32(1))

• If a party fails to obey a decree for specific performance, restitution of conjugal rights, or an injunction, the decree can be enforced.

Enforcement methods include:

• Attachment of the party's property.
• Detention in civil prison.
• Both attachment and detention.

Corporations (Rule 32(2)): If a decree is against a corporation, it can be enforced by:

• Attachment of the corporation's property. 
• Detention of directors or principal officers with court approval.
• Both attachment and detention.

Attachment Duration and Sale (Rule 32(3)): If the attachment remains for six months without compliance:

• The decree-holder can apply to have the property sold.
• The proceeds can be used to compensate the decree-holder.
• Any balance is paid to the judgment-debtor.

Obeying Decree and Costs (Rule 32(4)); If the judgment-debtor complies with the decree and pays the costs:

• The attachment ceases.
• If no application to sell is made within six months, or if refused, the attachment ceases.
• Explanation: Clarifies that "the act required to be done includes both prohibitory and mandatory injunctions.

Stay of Execution

As per Rule 26(1), the Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto.

Further as per Rule 26(2), where the property or person of the judgment-debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.

As per Rule 26(3), before making an order to stay execution, or for the restitution of property or the discharge of the judgment debtor, the Court shall require such security from, or impose such a condition upon, the judgment-debtor as it thinks fit.

As per Rule 27, no order of restitution or discharge under rule 26 shall prevent the property or person of a judgment-debtor from being retaken in execution of the decree sent for execution.

As per Rule 28, any order of the Court by which the decree was passed, or of such Court of appeal as aforesaid, in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution.

As per Rule 29, where a suit is pending in any Court against the holder of a decree of such Court or of a decree which is being executed by such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided, Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.

Setting Aside Orders Passed Ex Parte

As per Rule 105, the Court, before which an application under any of the foregoing rules of this Order Le., Order 21, is pending, may fix a day for the hearing of the application. Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such an order as it thinks fit.

As per explanation to Rule 105, an application referred to in sub-rule (1) of Rule 105 includes a claim or objection made under Rule 58, 106.

As per Rule 106, the applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance whom the application was called on for hearing, the Court shall set aside the order or such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

Further as per Rule 106(2), no order shall be made on an application under sub-rule

(1) unless notice of the application has been served on the other party.

And as per Rule 106(3), an application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.

What is the meaning of execution of a decree under the Code of Civil Procedure (CPC)?

Execution of a decree refers to the legal process by which a court enforces or implements its judgment. When a decree is passed in favor of a party (called the decree-holder), the court ensures the actual realization of the rights conferred by the decree, such as recovery of money, possession of property, or performance of an act. Execution is governed by Order 21 of the CPC, 1908.

Which court is competent to execute a decree?

Under Sections 37 to 42 of the CPC, a decree can be executed by: • The Court which passed the decree, or • The Court to which the decree is transferred for execution. This includes both original and appellate courts, and courts having jurisdiction over the judgment-debtor or the property involved.

What are the different modes of execution available under CPC?

As per Rule 30 to Rule 36 of Order 21 CPC, a decree may be executed through several modes, including: • Attachment and sale of property (movable or immovable) • Arrest and detention of the judgment-debtor in civil prison • Delivery of possession of immovable property • Appointment of a receiver • Attachment of salary or rent The court chooses an appropriate mode depending on the nature of the decree and the facts of the case.