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Execution of Decree

  1. Meaning: -

The term execution has not been defined in the code. Execution signifies the enforcement or giving effect to a judgment or order of a court of justice. Execution is the enforcement of decree & order by the process of the court, to unable the decree holder to realise the fruits of the decree. It is the last stage of civil litigation. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or order.
For Eg.
                                          A      B
                                             And have a dispute of Rs. 30,000,
Here A wins the case

A will be called as                                           B will be called as

  1. Judgment Creditor                                            1. Judgment Debtor
  2. Decree Holder

 



And 30,000 will be Judgment Debt

Therefore, If “B” refuses to give the money to “A” then “A” can recover the money by executing the decree through judicial process.
1.2 Provisions Under CPC: -
Section 36 to 74 &Order 21 (Total 106 Rules) deals with the provisions of execution of Decree.

2.COURTS WHICH MAY EXECUTE DECREE (Sec.37 to 45)
2.1 Section 37: - Court which passed a decree, the following are: -

  1. The court actually passed a Decree at first instance.
  2. The court in case of appellate Decree at first instance.
  3. The court of first instance who passed the decree is ceased to exist, so the court which have some jurisdiction to stay the suit at the execution.
  4. The court of first instance who passed the decree have ceased to have jurisdiction to execute decree, the court which at the time of execution would have had jurisdiction to stay the suit.

2.2 Section 38: - Court by which Decree may be executed
A decree may be executed by the court which passed it as well as by the court to which the decree is send for execution.
2.3 Other Situations: -
If “A” Court passed a decree, and thereafter a part of area of jurisdiction is passes to court “B”. then in this situation two question arises  :-

  1. Whether court “A” continues to have issues to entertain an application for execution?
  2. Whether Court “B” can also entertain an application for execution without a formal transmission of the decree by the court A to B ?

There high court of Calcutta, have two views. But now it is settled practice that both the said courts will have the jurisdiction to entertain the execution Application.

  1. TRANSFER OF DECREE FOR EXECUTION: -

Can be transfer on: -

  1. Suo Moto
  2. Application of decree holder  

3.1 Grounds

  1. The judgement debtor who lives or carries his business, or personally works of gains, within the local jurisdiction of such court.
  2. If the judgment debtor does not have the sufficient property in the local jurisdiction of the court who passed the decree but have sufficient property in the local jurisdiction of such other court.
  3. The decree directing the sale or delivery of immovable property situated outside the local limit (of passing decree court).
  4. Any other reason deemed necessary to execute the decree. (should be recorded in writing.)

3.2 Section 43-44 (A):  - Execution of foreign decree in India.

  1. Established by central government outside India.
  2. Indian court, but the code does not apply.
  3. Revenue court in India, but code does not apply.
  4. Superior courts of any reciprocating territory.

Therefore, Sec. 45 deals with the certain circumstances in which Indian decree can be executed in the foreign countries. The decree can be executed at more than one place in the interest of justice.

4.PROCEDURE OF EXECUTION

  1. A copy of decree
  2. A certificate of non-satisfaction or part-satisfaction of the decree.
  3. A copy of the order for the execution of decree.

Are given to transferee court to execute decree.
The jurisdiction of the transferor court ends as soon as the execution is transferred to other court. Once the execution is transferred to the transferee then that court have full jurisdiction over the subject matter.

EXECUTION OF DECREE

  1. Meaning: -

The term execution has not been defined in the code. Execution signifies the enforcement or giving effect to a judgment or order of a court of justice. Execution is the enforcement of decree & order by the process of the court, to unable the decree holder to realise the fruits of the decree. It is the last stage of civil litigation. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or order.
For Eg.
A      B
And have a dispute of Rs. 30,000,
Here A wins the case

A will be called as                                           B will be called as

  1. Judgment Creditor                                            1. Judgment Debtor
  2. Decree Holder

 



And 30,000 will be Judgment Debt

Therefore, If “B” refuses to give the money to “A” then “A” can recover the money by executing the decree through judicial process.
1.2 Provisions Under CPC: -
Section 36 to 74 &Order 21 (Total 106 Rules) deals with the provisions of execution of Decree.

2.COURTS WHICH MAY EXECUTE DECREE (Sec.37 to 45)
2.1 Section 37: - Court which passed a decree, the following are: -

  1. The court actually passed a Decree at first instance.
  2. The court in case of appellate Decree at first instance.
  3. The court of first instance who passed the decree is ceased to exist, so the court which have some jurisdiction to stay the suit at the execution.
  4. The court of first instance who passed the decree have ceased to have jurisdiction to execute decree, the court which at the time of execution would have had jurisdiction to stay the suit.

2.2 Section 38: - Court by which Decree may be executed
A decree may be executed by the court which passed it as well as by the court to which the decree is send for execution.
2.3 Other Situations: -
If “A” Court passed a decree, and thereafter a part of area of jurisdiction is passes to court “B”. then in this situation two question arises  :-

  1. Whether court “A” continues to have issues to entertain an application for execution?
  2. Whether Court “B” can also entertain an application for execution without a formal transmission of the decree by the court A to B ?

There high court of Calcutta, have two views. But now it is settled practice that both the said courts will have the jurisdiction to entertain the execution Application.

  1. TRANSFER OF DECREE FOR EXECUTION: -

Can be transfer on: -

  1. Suo Moto
  2. Application of decree holder  

3.1 Grounds

  1. The judgement debtor who lives or carries his business, or personally works of gains, within the local jurisdiction of such court.
  2. If the judgment debtor does not have the sufficient property in the local jurisdiction of the court who passed the decree but have sufficient property in the local jurisdiction of such other court.
  3. The decree directing the sale or delivery of immovable property situated outside the local limit (of passing decree court).
  4. Any other reason deemed necessary to execute the decree. (should be recorded in writing.)

3.2 Section 43-44 (A):  - Execution of foreign decree in India.

  1. Established by central government outside India.
  2. Indian court, but the code does not apply.
  3. Revenue court in India, but code does not apply.
  4. Superior courts of any reciprocating territory.

Therefore, Sec. 45 deals with the certain circumstances in which Indian decree can be executed in the foreign countries. The decree can be executed at more than one place in the interest of justice.

4.PROCEDURE OF EXECUTION

  1. A copy of decree
  2. A certificate of non-satisfaction or part-satisfaction of the decree.
  3. A copy of the order for the execution of decree.

Are given to transferee court to execute decree.
The jurisdiction of the transferor court ends as soon as the execution is transferred to other court. Once the execution is transferred to the transferee then that court have full jurisdiction over the subject matter.

 

Submitted by LP Team

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