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Concept And General Principal Of Execution Section 38 To 46

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 execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by judgment, decree or order.

Execution: Meaning

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 court. 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.

Illustration:
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. Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can recover the said amount from B by executing the decree through judicial process.

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 civil court.

Application for Execution of decree:

All proceedings in Execution commence with the filing of an application for Execution.

Following persons may file an application for Execution:
  1. Decree- holder
  2. Legal representative of the decree holder
  3. Representative of a person claiming under the decree-holder
  4. Transferee of the decree-holder, in some cases.

General Provision of execution section 38 to 46

Section 38: Court by which decree may be executed
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: Transfer of decree
The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction:
  1. 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
  2. if such person has not property with in 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
  3. if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
  4. 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.
The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

Section 40: Transfer of decree to Court in another State
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: Result of execution proceedings to be certified
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: Powers of Court in executing transferred decree
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. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

the powers of the Court under this section shall include the following powers of the Court 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.

A Court passing an order in exercise of the powers specified shall send a copy thereof to the Court which passed the decree.

Section 43: Execution of decrees passed by Civil Courts in places to which this Code does not extend
Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends.

Section 44: Execution of decrees passed by Revenue Court in places to which this Code does not extend
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 Execution of decrees passed by Courts in reciprocating territory
Where a certified copy of 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.

Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

Section 45: Execution of decrees outside India
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.

Section 46: Precepts
Upon 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.

The 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.

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