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The litigation consists of three stages, initiation of litigation, adjudication of litigation, and implementation of litigation. The last stage of litigation that is the implementation of litigation is known as an execution. Once a decree or judgment is passed by the court, it is the obligation of the person against whom the judgment is passed (judgment-debtor), to give effect to the decree so as to enable the decree-holder to enjoy the benefits of the judgment.

Jurisdiction Of Executing Court

  1. What Is 'Jurisdiction'?

    • The expression 'jurisdiction' does not mean the power to do or order the act impugned, but generally it would import the authority of the judicial officer to act in the matter. The Court shall be competent to entertain the proceeding. The competency is legally termed as 'jurisdiction'. The jurisdiction is of three kinds, namely statutory, pecuniary, and territorial. Every suit shall be instituted in the Court of the lowest grade competent to try it, is the decisive rule. (See section 15 CPC)
    • The jurisdiction of a court implies its competence to entertain the dispute and adjudicate upon the same according to law governing the subject matter of the dispute. In other words, it can also be said that the right of action available to a party shall be decided by a court of competent jurisdiction. For this purpose there shall be two conditions to be satisfied by the party, namely, that the claim made by him is within the territorial and pecuniary limits of the court; and secondly, that his claim is of civil nature and is not barred expressly or impliedly by any law.
  2. Kinds of jurisdiction

    1. Territorial
    2. Inherent
    3. Jurisdiction in terms of competence - powers of the court

Meaning, Nature and Scope

The term "execution" is not defined in the CPC. The term "execution" means implementing or enforcing or giving effect to an order or a judgment passed by the court of justice. In simple words "execution" means the process of enforcing or giving effect to the decree or judgment of the court, by compelling the judgment-debtor to carry out the mandate of the decree or order and enable the decree-holder to recover the thing granted to him by judgment.

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be called the decree-holder, Y is the judgment-debtor, and the amount of Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him. Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by execution through the judicial process. The principles governing the execution of a decree or order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code which provides for procedural law.

Execution proceedings under CrPC

  • In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of the code relating to the execution of orders and decree and stated that the Code contains elaborate provisions which deal with all questions regarding excitability of a decree in all aspects.
  • The Court further observed that numerous provisions of Order 21 take care of various situations providing effective remedies to judgment-debtors, decree-holders and claimant objectors. In the cases, where provisions are not capable of giving relief inadequate measures and appropriate time, to an aggrieved party, then filing a regular suit in the civil court is the solution.

What is a foreign judgment and a foreign decree?

  • Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As per section 2(5) of CPC, a foreign court implies a court which is situated outside India and which is not established or continued by the authority of the Central Government.
  • A foreign decree is 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. However, such sum of money shall not be a sum payable in respect of taxes or other charges of a like nature or in respect of any penalty or fine. It should not include an arbitral award, even if such an award is enforceable as a decree or judgment.

Section 36. Application to orders

  • 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 an order).

Section 47. Questions to be determined by the Court executing decree

  1. 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.
  2. Omitted
  3. Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation I:
For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II:
  1. For the purposes of this section, 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;
  2. 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 this section.

Section 49. Transferee

Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

Section 50. Legal representative
  1. Where a 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.
  2. Where the decree is executed against such legal representative, he 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 purpose 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.

  • It clearly appears from the above discussion, that execution means implementing or enforcing or giving effect to an order or a judgment passed by the court of justice. The provisions contained in Order 21 covers different types of situation and provide effective remedies to the judgment-debtors, claimant objectors and third parties apart from the decree-holder.
  • The Code takes care of the rights of judgment-debtors too. Various modes of execution of a decree are also provided by the Code which includes arrest, detention of the judgment-debtor, delivery of possession, attachment of the property, by sale, partition, the appointment of receiver and payment of money etc. Thus, the provisions are rendered effective or capable of giving relief to an aggrieved party.

    Award Winning Article Is Written By: Mr.Amit Bhardwaj & Mr.Himanshu Sharma
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