CIVIL PROCEDURE CODE 1908

PART I – Suits in General [Section 09 – 35B]

 Part I deals with Suits. It is the foundation of CPC, and so all the provisions shall be dealt
with exhaustively.

PART II – Execution [Section 36 – 74]

 Section 38: Provides that Decree can be executed by which Courts.

 Section 39: Deals with the transfer of decrees.
 Section 42: Deals with the power of the Courts to execute transferred decrees.
 Section 46: Precepts
 Section 50: Legal Representatives
 Section 51: Power of Courts to order execution
 Section 54: Partition of estate
 Section 55: Arrest and detention for the execution of the decree
 Section 56: Women prohibited from arrest in execution
 Section 60: Property that can be attached in execution*
 Section 73: Proceeds to be distributed ratably amongst decree – holders
 Section 74: Resistance to execution

PART III – Incidental Proceedings [Section 75 – 78]

 Section 75: Court’s power to issue Commissions; clauses (a) – (g)*

 Section 77: Letter of request

PART IV – Suits in Particular Cases [Section 79 – 88]

 Section 79: Suits by or against Central and State Government.

 Section 80: Notice to be sent to Government before instituting suit
 Section 82: Deals with the execution of a decree against the Government
 Section 88: Interpleader Suit – concept and when they can be filed

PART V – Special Proceedings [Section 89 – 93]

 Section 89: Settlement of disputes through Arbitration, Mediation, etc

 Section 91 and 92: Brief reading on public nuisances and public charities

PART VII – Appeals [Section 96 – 112]*

PART VIII – Reference, Review and Revision [Section 113 – 115]*

PART X – Rules [Section 121 – 131]

  Section 122: Power of High Courts to make rules
 Section 123: Rules Committee

PART XI – Miscellaneous [Section 132 – 158]

 Section 132 – 135A: Exemptions to certain classes

 Section 144: Application for Restitution.
 Section 148: Time enlargement by Court.
 Section 148A: Caveat – concept and when it is filed
 Section 151: Inherent powers of the Court
 Section 152: Amendments in Orders and Decrees by Court
 Section 153: General Powers of Court to amend

EXECUTION OF DECREES AND ORDERS

(FINAL STAGE OF LITIGATION)
PART II: SECTIONS 36 – 74 AND SECTIONS 144 – 146 [ORDERS 21]

General Principles of Execution [Section – 38,39,41,46,47,51,52,55,60,65]

Orders can be divided into six parts. If the courts deal with executions while considering the
application/objections topic wise, it would be easy for them to adjudicate the matter easily. The
main classification is as under;-

1) Applications for execution and the process to be applied.

2) Stay of executions.
3) Mode of executions.
4) Sale of immovable property and movable property.
5) Adjudication of the claims and objections.
6) Resistance and delivery of possession.

Section 36 states that provisions of the Code relating to the execution of decrees apply to the
execution of orders as well. (relating to payment under a decree or an order)

Section 38 states decree can be executed either by the court of the first instance or by the Court
to which it has been sent for execution. *(courts by which decrees may be executed)*

Section 37 of the code further establishes the scope of expression “court which passed a
decree” with the object of enabling a decree – holder to recover the fruits of the decree.

1. Court of first instance which actually passed the decree

2. Court of first instance in case of appellate decrees
3. Court of first instance has ceased to exist, the court which would have jurisdiction to try
the suit at the time of execution
4. Court of first instance has ceased to have jurisdiction to execute the decree the court
which at the time of execution would have had jurisdiction to try the suit

Section 39 – when a decree – holder makes an application to the court of the first instance to
send decree for execution to another court (transfer of decree for execution)

*(Section 39(2) states that the Court of first instance may suo motu send it for execution to any
subordinate court of competent jurisdiction.)*

Section 40 Transfer of decree to Court in another State.

Section 41 states that court that receives a decree of execution must certify the results of the
execution proceedings to the court that passed the decree. *(this section also applies to
Arbitration Act)*

 *(Transfer of Decree for Execution section 39 – 42; Order 21 Rules 3 – 9 )*

  Notice of Execution Rule 22
 Limitation for Execution – 12 years from the date of the decree(other than mandatory
injunction); for the execution of a decree for mandatory injunction is 3 years from the
date of the decree
 When executing court may stay execution? Rule 26 – power to stay a execution of a
decree is not similar to the power of the court which passes decree – the transferor court
can grant absolute stay, the transferee court can stay execution for a reasonable time to
enable the judgment - debtor to apply to the transferor court or to appellate court to
grant stay against the execution.
 Rule 28 - transferee court is bound by an order made by the court which passed the
decree or by an appellate court in relation to execution of such decree.
 Rule 29 – Stay of Execution Pending Suit – btwn decree – holder and judgment debtor(in
case of a second pending suit only)-discretion of court-only in the same court where two
suits are being proceeded – eg: Suppose a court has passed a decree in favor of A (the
decree-holder) against B (the judgment-debtor). However, B later files a suit against A in
the same court, challenging some aspects related to the decree. In such a situation, B can
request the court to stay the execution of the decree until the newly filed suit is resolved.
The court, using its discretion, may grant the stay if it believes that the outcome of the
pending suit could affect the execution of the decree.

Execution of Foreign Decrees in India

The code lays down the procedure for execution of foreign judgments and decrees in India.
While enforcing a foreign judgment or decree in India it should be ensured that the judgment or
decree is a conclusive one, courts having competent jurisdiction.

Foreign judgment and a foreign decree – Section 2(6) defines foreign judgment as a
judgment of a foreign court. Section 2(5) – foreign court implies a court which is situated
outside India and which is not established or continued by the authority of the Central
Government.

Foreign decree defined in explanation II to section 44A of the CPC as a decree or judgment of
such court and which directs that a sum of money is payable.

Section 13 of CPC lays down the test for conclusiveness of a foreign judgment or decree, which
says that a foreign judgment would be conclusive in except some cases.
*[competent court has not pronounced the judgment, not pronounced on merits of case, based
on wrong view of international law or refusal to recognize the law of India, judgment which are
opposed to natural justice, obtained by fraud, based on breach of any law in force in India]*
Mode of enforcement of a foreign judgment or decree:
+Decree or judgment has been given by a court in a reciprocating territory; - Section 44A
*Reciprocating territory” any territory or country outside India which Central Government has
declared to be a reciprocating territory by notification in the Official Gazette*
+Decree or judgment has been given by a court in a non-reciprocating territory. (not
pronounced by a court of reciprocating territory, can be executed only when a fresh suit on that
foreign judgment is filed in court of India which has competent jurisdiction to entertain the
same)
Section 45 of the code is related to the execution of decrees outside the territory of India. It
states that a court has power to send a decree for execution to court outside India which has
been established by the Central Government. (Therefore, in the absence of either of the
aforesaid conditions in section 45, an Indian court has no jurisdiction to send its decree for
execution to a Court not situated in India).
PROCEDURE IN EXECUTION SECTION 51 – 54
Section 51 states the Jurisdiction and power of the court in executing a decree. An application
for execution of the decree can either be oral or written. The court may execute decree as per
mode of implementation prayed by the decree – holder or as the court deems fit.
Mode of executing decree S – 51
 By delivery of any property (movable or immovable) specifically decreed.
 By sale of the property with or without the attachment of the property
 By arrest and detention. (should not be exercised without giving a reasonable opportunity
to judgment – debtor)
 By appointing a receiver
Section 46 Percepts – It is a directive or order issued by the Court that has issued a decree to
another competent court, instructing it to attach any property owned by the judgment – debtor.
I. The application of the decree – holder the court which passed the decree may whenever it
thinks fit, issue a precept to any other Court which would be competent to execute such
decree to attach any property belonging to the judgment – debtor and specified in the
precept
II. Court to which a precept is sent shall proceed to attach the property in the manner
prescribed in regard to the attachment of property in execution of a decree

Provided that and attachment under a precept shall continue for more than two months unless
the period of attachment is extended by an order of the court which passed the decree or unless
before the determination of such attachment the decree has been transferred to the Court by
which the attachment has been made and the decree – holder has applied for an order for the
sale of such property.

Section 47 – applies only to matters arising subsequent to the passing of a decree and deals with
objections to execution, discharge or satisfaction – lays down the principle that matters relating
to the execution, discharge or satisfaction of a decree arising between the parties or their
representatives, should be determined in execution proceedings and not by a separate suit.
*(An order under Section 47 does not amount to a decree, it is not appealable under Section 96
and 100. A revision application under Section 115 of the Code is, therefore, maintainable
provided the conditions laid down in Section 115 are satisfied)*
 Section 47 and Order 21 Rule 58 Distinction
– the rule postulates that where any property is attached in execution of a decree, it
is always open to the parties, their representatives or third parties having some right, title
or interest in or possessed of the property attached, to raise objection against such
attachment
– if the objection is raised by a party or his representative, the question falls under
section 47 and should be decided by the executing court and not by a separate suit.
 Section 47 applies to parties to the suit or their representatives whereas, Order 21 rule 58
applies to third parties or their representatives. The section not only bars a suit but also
bars an appeal; on the other hand, the rule bars a suit not an appeal.
 Order 21 Rule 58 and Order 21 Rules 97 & 99 Distinction
– Rule 58 deals with objections made by parties to the suit or third party with respect
to the attachment of the property in execution of a decree
– Rule 97 objections made by decree – holder or auction purchaser of immovable
property after they are resisted or obstructed by any person in obtaining possession of the
said property delivered to them in execution of a decree
– Rule 99 objections made by third party only when he/she is dispossessed of
immovable property by the decree – holder or auction – purchaser.
Order 21 Rule applies only when the property (whether movable or immovable) is attached in
execution of decree, whereas Order 21 Rules 97 & 98 comes into play only when the
immovable property alone is delivered to judgment – holder or auction – purchaser in execution
of a decree.
 An order passed under Order 21 Rule 98 or 100 on application under Order 21 Rule 97 or
98, respectively, is always subject to appeal and hence, can be challenged in appeal. But,
any said order being passed summarily without making any inquiry or framing issues
under Order 21 Rule 101, the aggrieved would be left with only one remedy i.e. Revision
not appeal
Section 50 Legal Representatives – defined under section 2(11) of CPC – S - 50 defines the
representative which can be enforceable against for the execution of the decree in a suit in the
case of the deceased judgment holder.

I. Judgment - debtor dies before the decree has been fully satisfied the holder of the decree
may apply to the court which passed it to execute the same against the legal
representative of the deceased
II. The decree is executed against such legal representatives, shall be liable only to the
extent of the property of the deceased which has come to his hands and has not been duly
disposed of; and for the propose of ascertaining such liability the court executing the
decree may of its own motion or on the application of the decree – holder, compel such
legal representative to produce such accounts as it thinks fit.
  Section 54 Partition of estate (or separation of a share in such an estate) *refer the
decree to the collector* Partition of an undivided estate assessed to the payment of
revenue to the Government or for the separate possession of a share of such estate the
partition of the estate or the separation of the share shall be made by the collector or any
gazette subordinate of the collector deputed by him

Example: If a family owns an undivided agricultural estate and a member of the family files a
suit for partition to get their share, the court may pass a decree in favor of the partition.
However, since the property involves agricultural land, the court would refer the matter to the
Collector. The Collector would then execute the partition by dividing the land according to the
decree and relevant land revenue laws.

This section ensures that specialized revenue officers, who are experienced in land matters,
handle partitions involving agricultural estates.

Section 55 - 59 Arrest and Detention for the execution: of a judgment debtor in civil prison
as part of the execution of a decree particularly for non – payment of money.

Section 55:

I. When arrest is permitted

II. Exemption for small debts – cannot be arrested if the amount due is less than 2000 rupees
under the decree relates to the payment of maintenance
III. Maximum period of Detention up to six weeks below 500 rupees and 3 months for sums
exceeding 500 rupees
IV. No Release from Debt – detention does not discharge the judgment debtor from the
liability to pay the amount due under the decree

Section 56: Prohibition of Arrest or Detention of women but not in case of maintenance arrest
is not prohibited

Section 57: Subsistence Allowance – decree – holder is required to pay this amount to court to
cover the basic needs of the debtor during the detention, the subsistence allowance rate will be
fixed by the court

Section 58: Detention and Release – the section clarifies the period of detention based on the
amount due under the decree and when the amount is paid the JD can be released.

Section 59: Release on Grounds of Illness (does not affect the JD’s liability to pay the decree
amount.

Example:
  If a person (A) obtains a decree for ₹50,000 against B and B fails to comply, A can apply
for B’s arrest. The court, after investigating B’s financial position, determines that B has
the means to pay but is refusing to do so. The court may then order B’s arrest and
detention in civil prison for up to three months, unless B pays the amount.

Section 60 – 64 Order 21 Rules 41 - 57: Property that can be attached in execution (The
decree described in this section is not a mortgage decree it is merely a money decree.)

Section 60 Property liable to attachment and sale in execution of decree – All movable and
immovable properties – exemptions:

 necessary household items,

 tools of artisans and
 agricultural implements,
 cattle used in agriculture,
 salaries and wages below certain threshold, except specific decrees like maintenance,
 pension, provident funds and government stipends, property of religious or charitable
institutions
 agricultural land

Section 61 Partial Exemption of Agricultural Produce – if court deems it necessary for

subsistence of the JD and their family

Section 62 Seizure of Property in Dwelling House – cannot enter JD’s house without giving
due notice to the debtor or other adult members of the household and complying with local laws
governing such entry

Section 63 Property Attached in Execution of Decrees of Several Court – in case of multiple

courts have issued decrees against the same judgment debtor and seek to attach the same
property the court that attaches the property first retains the right to proceed with execution &
other courts must wait for the proceeds.

Section 64 Private Alienation of Property after Attachment – after attachment of a property for
execution, any private sale or transfer is void

21: *(Order Rules 41 – 57 provisions regarding attachment of property)*

Distribution of Assets amongst the decree – holders; Order 21, Rule 24 - 35

Section 73 provides for the distribution of proceeds of execution sale rateable amongst the
decree – holders is to provide a cheap and expeditious remedy for the execution of money
decree held against the same judgment – debtor by adjusting the claims of rival decree – holders
without the necessity for separate proceedings.
  The provision ensures to prevent an unnecessary multiplicity of proceedings when
dealing with multiple parties holding a decree or claim to be entitled to a share in the
assets.
 To ensure a lawful and equitable distribution of assets among all decree – holders by
providing an equal footing to them

Distribution among Multiple Decree – holders; Order 21 Rule 181 – Rateable Distribution;
when a JD’s property is attached or sold and there are multiple decree – holders the court must
distribute the proceeds rateably among them i.e., in proportion to their decree – holders.

Example: If a judgment-debtor owes ₹10, 00,000 to three decree-holders, and the court realizes
₹5, 00,000 from the debtor, the money will be distributed proportionally among the decree-
holders based on their claims.

Illustration:

 Decree-holder A: ₹4,00,000
 Decree-holder B: ₹3,00,000
 Decree-holder C: ₹3,00,000

The total claim is ₹10, 00,000. If ₹5, 00,000 is realized, the distribution will be as follows:

 A: ₹2,00,000
 B: ₹1,50,000
 C: ₹1,50,000

Exceptions to Rateable Distribution:

– Decrees that are enforced through distinct property or assets of the JD (not forming part of the
same execution process) may be treated differently

– Priority for government dues; if the government or public authority has a claim and their
claims may take precedence over others as per specific laws.

Order 21 Rule 185 – Claims of Persons Not parties to the Decree: Sometimes a third party may
lay claim to the assets being distributed. In such cases the court decides the validity of their
claim before proceeding with distribution.

*Any order under section 73 for the purpose of distribution of assets is not appealable U/S 108*

Section 74 Resistance to Execution: provides for actions that can be taken when someone
obstructs or resists the lawful execution of a decree or order.

 Resistance or Obstruction in Execution

 Court’s satisfaction – the resistance was without just cause – if the resistance has any
legal basis or reasonable grounds the section may not apply
  Consequence of Resistance – Detain the JD or any other person obstructing the execution
in civil prison for a term up to 30 days.
 Order possession of the property to be handed over to the decree – holder or the
purchaser who has faced the resistance.

ORDER 21 RULE 1 CPC: Method of adjustment in money decree – This order and rule
provides for the modes of paying the money decree, it also provides modes for executing the
decrees and implementation of even decrees of specific performance, permanent injunction,
restitution of conjugal rights and possession etc.

ORDER 21 RULE 42 CPC: Attachment before judgment in execution;- attachment before the
Court holds an inquiry as to rent or mesne profits or any other matter, the property or any other
matter, the property of the judgment debtor could be attached, before the amount due is
ascertained in terns if Order 38 Rule 5 CPC *(It states that attachment before judgment shall not
impair the rights of people who are not parties to the suit that existed before the attachment, nor
shall any person holding a decree against the defendant be barred from applying for the sale of
the property under attachment in execution of such a decree)*

ORDER 21 RULE 29 CPC: Whether the decree of other Court could be stayed – The scope of
applicability of this order refers to cases where the execution of the decree held by the Decree
Holder could be stayed. For the applicability of Order 21 Rule 29 CPC two conditions are to be
fulfilled; (1) a proceeding in execution of the decree of that Court started at the instance of
the decree holder against the judgment – debtor and (2) a suit at the instance of the same
judgment – holder of the that Court. Transferee Court has no power to stay the execution of the
decree pending in its Court because the decree is not passed by that court. Subsequent sale in
spite of stay order held valid.
*(A judgment – debtor can ask for setting aside a sale in execution of a decree under section 47
CPC)*. In special. Circumstances which attract the provisions of order XXI rule 90 may also apply to
the Court to set aside the sale on ground of fraud or irregularity.

The scope of rules 26 to 29 of Order 21 CPC; - stay of executions - Rule 26 to 28 deals with
the powers and duties of a Court to which a decree has been sent for execution.