Execution is the last stage of any civil litigation. There are three stages in
- Institution of litigation.
- Adjudication of litigation.
- Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into
existence where the civil litigation has been instituted with the presentment of
the plaint. The decree means operation or conclusiveness of judgment.
Implementation of a decree will be done only when parties have filed an
application in that regard.
A decree or order will be executed by the court as
facilitative and not an obligation. If a party is not approaching the court,
then the court has no obligation to implement it suo motu. A decree will be
executed by the court which has passed the judgment. In exceptional
circumstances, the judgment will be implemented by another court which is having
competency in that regard.
Execution is the medium by which a decree-holder compels the judgment-debtor to
carry out the mandate of the decree or order as the case may be. It enables the
decree-holder to recover the fruits of the judgment.
The term execution
has not been defined in the code. The expression
execution means enforcement or implementation or giving an effect to the order
or judgment passed by the court of justice. Simply execution means the
process for enforcing or giving effect to the judgment of the
Execution is the enforcement of decrees and orders by the process of
the court, so as to enable the decree-holder to realize the fruits of the
decree. The execution is complete when the judgment-creditor or decree-holder
gets money or other thing awarded to him by the judgment, decree or order.
Supreme Court in Ghanshyam Das v. Anant Kumar Sinha
 dealing with provision of
the code relating to execution of decree and orders, stated:
so far as the
question of executability of a 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
providing 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
inadequate measures and appropriate time, the answer is a regular suit in the
The remedy under the Civil Procedure Code is of superior judicial quality then
what is generally available under other statutes and the judge, being entrusted
exclusively with administration of justice, is expected to do better. The Law
Commission in its 14th (1958), 27th (1964) & 44th (1973) reports also considered
the difficulties realised by the decree-holders after obtaining decree from a
competent court of law. It also went into the reasons for unsatisfactory state
of affairs and made several recommendations and suggestions.
Courts Which May Execute Decrees
Section 38 of the Code says that a decree may be executed either by the court
which passed it or by the court to which it is sent for execution. Section 37
defines the phrase courts which passed a decree while Sections 39 to 45 provide
for the transfer for the execution of a decree by the court which passed the
decree to another court, lay down conditions for such transfer and also deal
with the powers of executing court. Therefore, all this needs to be read
A decree may be execute by the court which passed it or by the court to which it
is sent for execution. A court which has neither passed a decree, nor a
decree is transferred for execution, cannot execute it. Where the court of
first instance has ceased to exist or ceased to have jurisdiction to execute the
decree, the decree can be executed by court which at the time of making the
execution application would have jurisdiction in the matter.
Transfer of Decree for Execution: Sections 39-42; Order 21 Rule 3-9
As stated above, a decree may be executed either by the court which passed it or
by the court to which it is sent for execution. Section 39 provides for the
transfer of a decree by the court which has passed it and lays down the
As a general rule, the court which passed the decree is primarily the court to
execute it, but such court may send the decree for execution to another court
either suo motu (of its own motion) or on the application of the decree-holder
if any of the following grounds exists:
- The judgment-debtor actually and voluntarily resides or carries on
business, or personally works for gain, within the local limits of the
jurisdiction of such court; or
- The judgment-debtor does not have property sufficient to satisfy the
decree within the local limits of the jurisdiction of the court which passed
the decree but has property within the local limits of the jurisdiction of
such other court; or
- The decree directs the sale or delivery of immovable property situate
outside the local limits of the jurisdiction of such other court; or
- The court which passed the decree considers it necessary for any other
reason to be recorded in writing that the decree should be executed by such
The provisions of Section 39 are, however, not mandatory and the court has
discretion in the matter which will be judicially exercised by it. The
decree-holder has no vested or substantive right to get the decree transferred
to another court. The right of the decree-holder is to make an application for
transfer which is merely a procedural right.
With regard to the powers and duties of executing courts, the following
fundamental principles should be borne in mind:
- As a general rule, territorial jurisdiction is a condition precedent to
a court executing a decree, and, therefore, no court can execute a decree in
respect of property situate entirely outside its local jurisdiction.
- An executing court cannot go behind the decree. It must take the decree
as it stands and execute it according to its terms. It has no power to vary
or modify the terms. It has no power to question its legality or
correctness. This is based on the principle that a proceeding to enforce a
judgment is collateral to the judgment and therefore, no inquiry into its
regularity or correctness can be permitted in such a proceeding.
- In case of inherent lack of jurisdiction, the decree passed by the court
is a nullity and its invalidity could be set up wherever and whenever it is
sought to be enforced, whether in execution or in collateral
proceedings. In such a case, there is no question of going behind the
decree, for really in the eye of the law there is no decree at all.
- Inherent lack of jurisdiction, however, must appear on the face of the
Record. Hence, if the decree on the face of it discloses some material on
the basis of which the court could have passed the decree, it would be
valid. In such a case, the executing court must accept and execute the
decree as it stands and cannot go behind it. To allow the executing court to
go behind that limit would be to exalt it to the status of a superior court
sitting in appeal over the decision of the court which has passed the
- A decree which is otherwise valid and executable, does not become inexecutable on the death of the decree-holder or of the judgment- debtor and
can be executed against his legal representatives.
- When the terms of a decree are vague or ambiguous, an executing court
can construe the decree to ascertain its precise meaning. For this purpose,
the executing court may refer not only to the judgment, but also the
pleadings of the case.
- An executing court can go into the question of the executability or
otherwise of the decree and consider whether, by any subsequent developments,
the decree has ceased to be executable according to its terms.
- A decree which becomes inexecutable by operation of law, may become
executable by virtue of a subsequent amendment in the statute and can be
executed after such amendment.
- The executing court has power to mould the relief granted to the
plaintiff in accordance with the changed circumstances.
- The court executing the decree transferred to it has the same powers in
executing such decree as if it had been passed by itself.
Who may apply for the execution? Rule 10The following persons may file an application for execution:
- Legal representative of the decree-holder, if the decree-holder is
- Representative of the decree-holder.
- Any person claiming under the decree-holder.
- Transferee of the decree-holder, if the following conditions are
- The decree must have been transferred by an assignment in writing or by
operation of law;
- The application for execution must have been made to the court which
passed the decree.
- Notice and opportunity of hearing must have been given to the transferor
and the judgement-debtor in case of assignment by the transfer.
The object of issuing a notice is to determine once and for all and in the
presence of the parties concerned the validity or otherwise of the assignment or
- One or more of the joint decree-holders, provided the following
conditions are fulfilled:
- The decree should not have imposed any condition to the contrary;
- The application must have been made for the execution of the whole
- The application must have been for the benefit of all the joint
Against whom the execution can be made?Execution may be taken out against the following persons:
- Legal representative of the judgement-debtor, if the
judgement-debtor is dead.
- Representative of or the person claiming under the judgement-debtor.
- Surety of the judgement-debtor.
An application for the execution of the decree may be filed in the court which
passed the decree or in the court to which the decree has been transferred for
Limitation: The limitation period for the execution of a decree is 12 years from
the date of the decree. The period of limitation for the execution of a decree
for mandatory injunction is 3 years from the date of the decree.
Execution Application and Res Judicata: After the Amendment Act of 1976 issue of
Res Judicata is now specifically dealt with as Section 11 with Explanation VII
specifically provides that the provisions of res judicata will apply to
execution proceedings also.
Mode of Execution
The code lays down various mode of execution. After the decree-holder files an
application for execution of decree, the executing court can enforce execution.
A decree may be enforced by delivery of any property specified in the decree, by
attachment and sale or by sale without attachment of the property, or by arrest
and detention, or by appointing a receiver, or by effecting partition, or any
such manner which the nature of relief requires.
Arrest and Detention
One of the modes of executing a decree is arrest and detention of the
judgment-debtor in civil imprisonment. Where the decree is for payment of money,
it can be executed by arrest and detention of the judgment-debtor.
A judgment-debtor may be arrested at any time on any day in the execution of a
decree. After this arrest, he must be brought before the court as soon as
practicable. For the purpose of making arrest, no dwelling house may be entered
after sunset or before sunrise. Further, no outer door of a dwelling house may
be broken open unless such dwelling house is in the occupancy of the
judgment-debtor and he refuses or prevents access thereto.
No order of detention of the judgment-debtor shall be made where the decretal
amount does not exceed Rs.2000. Where the judgment-debtor pays the decretal
amount and costs of arrest to the officer, he should be released once. Women,
judicial officers, the parties, their pleaders, member of legislative bodies, a
judgment-debtor where the decretal amount does not exceed Rs 2,000, this person
cannot be arrested and detained in civil imprisonment.
A decree for money cannot be executed by arrest and detention where the
judgment-debtor is a woman, or a minor, or a legal representative of a deceased
Attachment of Property
A decree may also be executed on the application of the decree-holder by
attachment and sale the only sale without attachment of property. The code
recognizes the right of the decree-holder to attach the property of the judgment
debtor in execution proceeding and lays down the procedure to effect
attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deals with the
subject of attachment of property.
The code enumerates properties which are liable to be attached and sold in
execution of a decree. It also specifies properties which are not liable to be
attached or sold. It also prescribes the procedure where the same property is
attached in execution of decrees by more than one court. The code also declares
that a private alienation of property after attachment is void.
Section 60(1) declares what properties are liable to attachment and sale in
execution of a decree, and what properties are exempt therefrom. All saleable
property (movable or immovable) belonging to the judgment-debtor or over which
or the portion of which he has a disposing power which he may exercise for his
own benefit may be attached and sold in execution of a decree against him.
Section 61 deals where the judgment-debtor is an agriculturalist. It states that
judgment-debtor is an agriculturalist. Any agriculturalist produce is subject
matter of agriculturalist. The quantum of attachment of agricultural product
depends upon the quantum of decretal amount.
Section 63 where two different courts have attached the same property through
different decree, then it will be looked, that which court is superior. The
value of the property will determine whether further attachment can be done or
Section 46– precept
means a command, an order, a writ or a warrant. A
percept is an order or direction given by court which passed the decree to a
court which would be competent to execute the decree to attach any property
belonging to the judgment-debtor.
Section 46 provides that court which passed a decree may, upon an application by
the decree-holder, issue a percept to that court within whose jurisdiction the
property of the judgment-debtor is lying to attach any property specified in the
A percept seeks to prevent alienation of property of the judgment-debtor not
located within the jurisdiction of the court which passed the decree so that
interest of the decree-holder is safeguarded and protected.
It is the interim attachment of the property which lies outside the jurisdiction
of the court which has passed the order. To protect the interest of the decree
holder on his application will issue percept to the court in whose jurisdiction
property is situated to attach the property of the judgment-debtor. The interim
order for attachment is valid for the period of only 2 months.
It is the proceeding by which the decree-holder seeks to reach money or property
of the judgment-debtor in the hands of a third party (debtor of
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the
court may require A not to pay money owed by him to B, but instead to pay C,
since B owes the said amount to C, who has obtained the order.
is an order passed by a court ordering a garnishee not
to pay money to the judgment-debtor because the latter is indebted to the
Sale of the Property
A decree may be executed by attachment and sale or sale without attachment of
any property. Section 65 to 73 and Rules 64 to 94 of Order 21 deals with the
subject relating to the sale of movable and immovable property.
Power of court (Rule64-65): Rule 64: a court may sell the property, which he has
taken into custody under an attachment under Order 60. Rule 65: appointment of
officer by the court who will be charged to sell the property. Officer will be
the representative of the court and will sell the property for execution of
Proclamation of sale (Rule66-67): It is a kind of order or declaration. It
operates as a public notice regarding the sale. It's said that people can
participate in auction and sale. The proclamation can be in writing or by
Contents of the proclamation:
- Time and place of sale
- Property to be sold
- Revenue, if any, assessed upon the property;
- Encumbrance, if any, to which property is liable;
- Amount to be recovered;
- Details relating to property, such as title deed, length etc.
Time of sale: Rule 68 No sale without the consent in writing of the
judgment-debtor can take place before fifteen days in case of immovable property
and before 7 days in case of movable property from the date of proclamation in
the courthouse. A sell can be conducted immediately if the property is of
Adjournment of sale: Rule69 If the judgment-debtor after the issue of
proclamation and before sell has paid the amount or has partly promised to pay
on the given date before completion of public order, if there is any justified
reason, in those circumstances, court has discretionary power to postpone the
sell. If it has been postponed for a period of 30 days, the fresh proclamation
has to be issued and again the process of Rule 67, 68 and 69 will follow. Sell
cannot be postponed where judgment-debtor dies before the date of sell or after
the issue of proclamation, or on the date of the auction.
Restriction to bid (Rule72-73): A decree-holder cannot, without the express
permission of the court, purchase the property sold in execution of his own
A mortgagee of immovable property cannot, without the leave of the court,
purchase the property sold in execution of the decree on the mortgage.
Any officer or other person having any duty to perform in connection with the
execution sale cannot either directly or indirectly, acquire or any attempt to
acquire any interest in the property sold in execution.
Sale of movable property (Rule78-78): It relates to the sale of agricultural
produce and growing crops. Rule 76 covers negotiable instruments and shares.
Sale of movable property should be held by public auction. A sale of the movable
property will not be said aside on the ground of irregularity in publishing or
conducting the sale (Rule 78).
Sale of immovable property (Rule82-94): Rule 83 enables the executing court to
postpone sale to enable the judgment-debtor to raise decretal dues by private
Payment of purchase money by auction-purchaser (Rule84-85): Rule 86 talks about
cases of default by auction-purchaser in making requisite payment and resale of
the property. Rule 89-91 and 93 deals with setting aside sale and effect
thereof. Rules 92-94 provide confirmation of sale and issuance of sale-
certificate. Section 65 declares the effect of sale.
Stay of Execution
Provisions for stay of execution of a decree are made in Rule 26 of Order XI.
This rule lays down that the executing court shall, on sufficient cause being
shown and on the judgement-debtor furnishing security or fulfilling such
conditions, as may be imposed on him, stay execution of decree for a reasonable
time to enable the judgment-debtor to apply to the court which has passed the
decree or to the appellate court for an order to stay execution.
The power to stay is not similar between the court who passed it and to the
court the decree is transferred for execution. The transferee court can only
stay the execution of decree for a reasonable time to enable the judgement-debtor
to apply to the transferor court or to the appellate court to grant stay against
the execution but the transferor court can grant the absolute stay against the
execution. A transferee court cannot invoke inherent powers to grant stay.
There is distinction between staying of an order and quashing of an order.
Quashing of an order means that no such order had ever been passed and there is
restoration of position as it stood prior to the passing of the order. Stay of
order, however, means that the order is very much there, but its operation is
Stay of Execution of Pending Suit: Rule 29
Rule 29 provides for stay of execution pending suit between the decree-holder
and the judgment debtor. It enacts that where a suit by the judgment-debtor is
pending in a court against the decree holder such court may, on the judgment
debtor furnishing security or otherwise as it thinks fit, stay execution of the
decree until the disposal of such suit.
The underlying object of this provision is twofold, (i) to enable the
judgment-debtor and the decree holder to adjust their claims against each other;
and (ii) to prevent multiplicity of execution proceedings.
For this rule to
apply, there must be two simultaneous proceedings in one and the same court:
- A proceeding in execution of the decree at the instance of the decree
holder against the judgment-debtor; and
- a suit at the instance of the judgment debtor against the decree-holder.
For the application of this rule, it is not enough that there is a suit pending
by the judgment-debtor. Such suit must be against the decree-holder in such
court. The words "such court" are important and would mean that the suit must be
pending in the same court."
The provisions of Rule 29 are not peremptory but discretionary. The discretion,
however, must be exercised judicially and in the interests of justice and not
mechanically and as a matter of course. No hard and fast rule can be laid
down in what cases stay would be granted or refused. This rule is based on the
principle that a judgment-debtor may not be harassed if he has a substantial
claim against the decree-holder which is pending for the decision of the court
executing the decree. If the court is of the view that there is some substance
in the claim, it may order for the stay of execution filed by the defendant in
that case but not otherwise.
While exercising the discretion conferred under Rule 29, the court should duly
consider that a party who has obtained a lawful decree is not deprived of the
fruits of that decree except for good and cogent reasons. So long as the decree
is not set aside by a competent court, it stands good and effective and it
should not be lightly dealt with so as to deprive the holder of the lawful
decree of its fruits.
A party should not be deprived of the fruits of the decree obtained by him from
a competent court merely because a suit has subsequently been filed for setting
aside that decree. A decree passed by a competent court should be allowed to be
executed and unless a strong case is made out on cogent grounds no stay should
Even if stay is granted it must be on such terms as to security, etc., so that
the earlier decree is not made ineffective due to lapse of time. The discretion
of the court under Rule 29 has to be exercised with "very great care" and
only in "special cases". It cannot be exercised so as to allow a party to abuse
the process of law.
Prior to the amendment in the Code in 1976, the jurisdiction to stay execution
of a decree vested only in the court which passed the decree. Hence, when the
decree was transferred by the court which passed it to another court, the
transferee court had no power to stay its execution. By virtue of the amendment
of 1976, now the executing court is also competent to stay not only the decree
passed by it, but also a decree passed by another court transferred to it for
It is submitted that the following observations of Misra, J, in the case of Judhiatir
, lay down correct law on the point:
The fundamental consideration is that the decree has been obtained by a party
and he should not be deprived of the fruits of that decade except for good
reasons. Until that decree is set aside, it stands good and it should not be
lightly dealt with on the off chance that another suit to set aside the decree
might succeed. The decree must be allowed to be executed, and unless an
extraordinary is made out, no stay should be granted. Even if stay is granted,
it must be on suitable terms that the earlier decree is not stifled.
The proviso has been added by the Amendment Act of 1976. It enacts that if the
decree is for payment of money and if the court grants stay without requiring
security, it shall record its reasons for doing so.
Order of Injunction and Order of Stay: There is distinction between an order of
injunction and an order of stay. The former is an order against a person or an
individual restraining him from doing something. The latter is a direction or an
order to a court not to do something. Proceedings taken in contravention of
injunction order are not null and void being without jurisdiction. The effect of
non-compliance of an order of injunction may make the person liable to
punishment. Proceedings in contravention of an order of stay, on the other hand
are a nullity and of no effect whatsoever.
From the above discussion, it clearly appears that execution is the enforcement
of decrees and orders by the process of court, so as to enable the decree-holder
to realize the fruits of the decree. The execution is complete when the
judgment-creditor or decree-holder gets money or other thing awarded to him by
the judgment, decree or order.
Order 21 of the code contain elaborate and exhaustive provision for execution of
decrees and order, take care of the different type of situation and provide
effective remedies not only to the decree-holder and judgment-debtors but also
to the objectors and third parties.
A decree can be executed by various modes which include delivery of possession,
arrest, and detention of the judgment-debtor, attachment of the property, by
sale, by appointment of receiver, partition, cross-decrees, and cross-claims,
payment of money etc.
On exceptional situation, where provisions are rendered ineffective or incapable
of giving relief to an aggrieved party, he can file suit in civil court.
- Halsbury's Laws of England (4th ed.) Vol. 17 at p. 232.
- Overseas Aviation Engineering, In re, (1962) 3 All ER 12.
- State of Rajahan v. Rustamji Savkasha, AIR 1972 Guj. 179.
- Ghanshyam Das v. Anant Kumar Sinha, AIR 1991 SC 2251.
- Shaukat Hussain v. Bhuneshwari Devi, AIR 1973 SC 528.
- Section 38, Code of Civil Procedure, 1908.
- Ghantesher v. Madan Mohan, AIR 1997 SC 471.
- Merla Ramanna v. Nallaparaju, AIR 1956 SC 87.
- Manmatha Pal Choudhury v. Sarada Prosad Nath, AIR 1981 SC 416.
- State of Punjab v. Krishan Dayal Sharma, AIR 1990 SC 2177.
- Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.
- Bhavan Vaja v. Solanki Hanuji Khodaji, AIR 1972 SC 1371.
- Order XI Rule 10, Code of Civil Procedure, 1908.
- Section 146, Code of Civil Procedure, 1908.
- Section 49, Order XI Rule 16, Code of Civil Procedure, 1908.
- Brajabashi v. Manik Chandra, AIR 1927 Cal. 694.
- Order XI Rule 15, Code of Civil Procedure, 1908.
- Section 50, Order XI Rule 15, Code of Civil Procedure, 1908.
- Section 50, 52 & 53, Code of Civil Procedure, 1908.
- Section 146, Code of Civil Procedure, 1908.
- Section 145, Code of Civil Procedure, 1908.
- Shaukat Hussain v. Bhuneshwari Devi, AIR 1973 SC 528.
- Quazi Rahman v. Nurbanu Bibi, AIR 1976 Gau 39.
- Order XI Rule 29, Code of Civil Procedure, 1908.
- Subhas Kumar Singh v. Sheo Balak Singh, AIR 1975 Pat 307.