EXECUTION

By Bhawna and Suruchi

The term “execution” has not been defined in the Code. In its widest sense, the expression
“execution” signifies the enforcement or giving effect to a judgment or order of a Court of
justice. In other words, execution is the enforcement of decrees and orders by the process of
the Court, so as to enable the decree holder to realise 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.

RELEVANT PROVISIONS

Main rules of procedure are to be found in Part II of the Code (Sections 36-74) and minor
rules are to be found in Order 21 of the Code.

1. Section 36. Application to orders.- The provision 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 under an order).
2. Section 37 defines the expression the "court which passed a decree
3. Section 38 of the Code points out the court by which a decree may be executed
4. Section 39 lays down the conditions under which a decree may be transferred, for
purposes of execution, by a court which passed the decree to another court.
(The provisions of Section 37, 38 & 39 is needed to be read together)
5. Section 43 talks about Execution of decrees passed by Civil Courts in places to which
this Code does not extend
6. Section 44 talks about Execution of decrees passed by Revenue Court in places to
which this Code does not extend.
7. Section 44A talks about Execution of decrees passed by Courts in reciprocating
territory
8. Section 45 talks about Execution of decrees outside India.
9. Section 45-A talks about Execution of decrees etc. passed or made before the
Commencement of the Code in Pondicherry
10. Section 46 talks about Precepts. It says that upon the application of the decree-holder
the Court which passed the decree may, 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.
11. Section 47 talks about questions to be determined by the Court executing decree.
12. Section 48 talks about Execution which is barred in certain cases.
Rep. by the limitation Act, 1963(36 of 1963), s. 28 (with effect from the 1st January,
1964)
13. Section 49 talks about Transferee. It says that 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.
14. Section 50 talks about Legal representative. It lays down that 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.
15. Section 51 lays down the modes of execution of the decree
16. Section 52 talks about Enforcement of decree against legal representative of a
deceased person
17. Section 53 talks about Liability of ancestral property. It says that for the purposes of
Section 50 and Section 52, property in the hands of a son or other descendant which is
liable under Hindu law for the payment of the debt of a deceased ancestor, in respect
of which a decree has been passed, shall be deemed to be property of the deceased
which has come to the hands of the son or other descendant as his legal representative.
18. Section 54 talks about Partition of estate or separation of share.—Where the decree is
for the partition of an undivided estate assessed to the payment of revenue to the
Government, or for the separate possession of a share of such an 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 in this behalf, in accordance with
the law (if any) for the time being in force relating to the partition, or the separate
possession of shares, of such estates.
19. Section 55 talks about Arrest and detention. It lays down that a judgment-debtor may
be arrested in execution of a decree at any hour and on any day, and shall, as soon as
practicable, be brought before the Court, to be detained
20. Section 56 talks about Prohibition of arrest or detention of women in execution of
decree for money
21. Section 57 talks about Subsistence allowance. The State Government may fix scales,
graduated according to rank, race and nationality, of monthly allowances payable for
the subsistence of judgmentdebtors.
22. Section 58 talks about Detention and release of the arrested person
23. Section 59 talks about Release on ground of illness.
24. Section 60 talks about Property liable to attachment and sale in execution of decree.-
25. Section 61 talks about Partial exemption of agricultural produce.
26. Section 62 talks about Seizure of property in dwelling-house.
27. Section 63 talks about Property attached in execution of decrees of several Courts.
28. Section 64 talks about Private alienation of property after attachment to be void
29. Section 66 talks about Suit against purchaser not maintainable on ground of purchase
being on behalf of plaintiff
30. Section 67 talks about Power for State Government to make rules as to sales of land
in execution of decrees for payment of money
31. Section 68-72 are Repealed
Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 7.
(w.e.f. 1-1-1957).
32. Section 73 talks about Proceeds of execution-sale to be rateably distributed among
decree-holders
33. Section 74 talks about Resistance to execution.
34. Section 82 talks about Execution of decree.
35. Section 118 talks about Execution of decree before ascertainment of costs.
36. Order 21 of the code also talks about execution. It has 106 rules which talk about
Payment under Decree, Courts executing Decree, Application for execution, Process
of Execution, Stay of Execution, mode of Execution, Arrest and Detention in Civil
Prison, Attachment of Property, Adjudication of Claims and Objections, Sale
Generally, Sale of Movable Property, Sale of Immovable Property and Resistance of
delivery of possession to decree holder or purchaser.
 Jalada Dalang Uchha Bidyapith vs State Of Orissa And Ors

Equivalent citations: AIR 1993 Ori 257, 1993 I OLR 77

Decided On, 30 July 1992, At, High Court of Orissa

ByJustice D Mohapatra, Justice S Mohanty

PROVISION: Order 21

FACTS

The petitioner's school was established in the year 1979; it was accorded recognition from the
academic session 1980; the first batch of students appeared in the High Court Certificate
Examination in the year 1983 and the school has been admitted to the grant-in-aid scheme
with effect from 1-4-91. The contention of the petitioner is that in terms of Clause 10(1) of
the Government Resolution No. 9760/EYS dated 4-3-1979 (for short the 1979 Resolution) it
is entitled to receive aid with effect from 1987-88 and a declaration be made to that effect.

ISSUE

Whether a private educational institution on satisfying the prescribed eligibility criteria for
receiving grant-in-aid from the State Government becomes entitled to receive such aid with
effect from that date.

ARGUMENTS

In the counter-affidavit filed on behalf of the opposite parties, justification is sought to be

provided to the decision to admit the institution to grant-in-aid scheme from 1991 on the
basis of criteria laid down in two Government Resolutions, dated 24-9-83 and dated 7-3-87.
According to the opposite parties in terms of these Government Resolutions, the petitioner's
school did not qualify for grant-in-aid, but in relaxation of the principles, the petitioner and
36 other schools of Balasore district were admitted to the grant-in-aid scheme with effect
from 1-4-1991.
In Clause 10(1) of 1979 Resolution it is laid down, that a recognised High School will be
eligible to receive minimum grant-in-aid after four years from the year of presentation of
candidates in the final High School Examination subject to other conditions enumerated
therein. Sub-Clause (3) of Clause 10 provides that a school will be considered for the
privilege of direct payment of salaries for three years receipt of the minimum grant provided
the roll strength does not fell below the roll strength prescribed for the receipt of the
minimum grant and the result of the school for the preceding two years is on par with the
State average or above, in the Annual High School Certificate Examination and the school
satisfies other conditions for direct payment laid down by the State Government from time to
time.

JUDGMENT

Ratio:

Considering the provisions in Government Resolutions and the provisions noted above, it was
a considered view that an institution cannot be said to be entitled to receive grant-in-aid
immediately on acquiring/satisfying the eligibility qualifications prescribed in the
Government Resolutions noted earlier.

Orbiter:

It can be said to be an aided institution if the Government notifies it as such, even though
actual disbursement of the amount may be later. That is not to say that the State Government
cannot grant aid to a private institution immediately after it acquires the eligibility
qualifications prescribed under the rule/executive instruction. 'Aid' in the very nature of
things can neither be demanded by an institution as a matter of right nor can it be thrust on an
institution which is not keen to receive it and that the State Govt. is bound by certain
disciplines in financial matters. A situation may arise when it may not be possible for the
State Government to provide aid to all private institutions eligible to receive aid. Therefore it
is necessary that the State Government or any other authority competent to deal with the
matter should take a conscious decision in the matter on consideration of the provisions in the
Rule/Executive instruction and other relevant facts and circumstances. The entitlement to
receive aid will flow from such order.
The court was unable to accept the contention of Sri J.K. Rath that the petitioner's institute is
entitled to receive grant-in-aid with effect from 1987-88 session. The writ application was
therefore dismissed.

Judhistir Jena v. Surendra Mohanty

Civil Revn. 422 of 1968

Decided On, 17 April 1969, At, High Court of Orissa

By, The Honourable Mr. Justice G.K. Misra

FACTS

The petitioner got a decree for declaration of title and recovery of possession in T. S. No. 33
of 1964, in the court of the Munsif, Puri on 18-1-65. The decree was put into execution in
Execution Case No. 50 of 1965. Opposite Party No. 1 (the plaintiff) and Opposite Party No. 2
(defendant No. 2) are respectively the son and the widow of late Krushna against whom the
decree has been passed. They filed an application under Section 47 C. P. C. challenging the
executability of the decree on the ground that it was void. The objection was overruled
though both of them were substituted in place of Krushna after his death. The plaintiff has
now filed T. S. No. 394 of 1968 for a declaration that the mortgage by conditional sale dated
6-11-50 executed by Krushna in favour of the decree-holder and the decrees in T. M. S. No.
90 of 1954 and T. S. No. 33 of 1964 are not binding on the plaintiff. In this suit the plaintiff
filed an application for stay of Execution Case No. 50 of 1965. The execution case was
stayed. Against this order granting stay the Civil Revision has been filed.

ISSUE
The main question for consideration is not whether the Court has got the power to grant stay
under Order 21, Rule 29 C. P. C., but the manner in which the Court would ordinarily
exercise its discretion.

PROVISIONS

Order 21 Rule 29 CPC

ARGUMENTS

Mr. Srinibas Misra for the opposite parties supported the order on the strength of Order 21.
Rule 29 C. P. C. The counsel further said that the language of the rule clearly shows that the
Court has got the power to grant such a stay. About that there can be no controversy, and in
appropriate cases the Court would also impose security.

Both the learned counsel were given full opportunity to cite authorities on this aspect of the
matter. They made statements that there is no direct authority on the point excepting
Kannammal v. Muthukumaraswami which does not discuss any principle. It is therefore
necessary to give an elementary analysis as to how this discretion should be exercised.

JUDGEMENT

Ratio:

The fundamental consideration is that the decree has been obtained by a party and he should
not be deprived of the fruits of that decree 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. Such suits are also of a very precarious nature.

Orbiter:

The allegations therein ordinarily would be that the previous decree was obtained by fraud or
collusion or that the decree was not binding on the present plaintiff as the transaction entered
into by the judgment-debtor was tainted with immorality. These are all suits of uncertain and
speculative character. Most of these cases are likely to fail the onus being very heavy on the
plaintiff to establish fraud and similar charges. That being the position, a person should not
be deprived of the fruits of his decree merely because suits of frivolous character are
instituted and litigants are out after further series of litigations. The decree must be allowed to
be executed, and unless an extra-ordinary case is made out, no stay should be granted. Even if
stay is granted, it must be on suitable terms so that the earlier decree is not stifled.
No hard and fast rule can be laid down in what cases stay would be granted or refused. But as
has already been stated, a rigorous test is to be applied and in most of the cases prayer for
stay is bound to be refused. In this particular case the circumstances are telling against the
plaintiff.

In the result, the impugned order was set aside and the stay granted was vacated. The Civil
Revision was allowed.

Mahadeo Prasad Singh & Anr vs Ram Lochan & Ors

Equivalent citations: 1981 AIR 416, 1981 SCR (1) 732

DATE OF JUDGMENT: 16/09/1980

Court: Supreme Court of India

Bench: Justice Sarkaria, Justice Ranjit Singh

Strength of bench- 2

Provision: Order 21 Rule 21, 30 and 82

Historical background

In February, 1953 the brother of appellant No.1 obtained a decree from the Court of
Small Causes which on his application under section 39 of the Code, was transferred to
the Court of Munsif in January, 1955 and put into execution after the U.P. (Amendment) Act
XXIV of 1954 had come into force. Trial Court dismissed the suit on nullity. On appeal the
Additional Commissioner held that the executing court had no jurisdiction to sell the suit
land under section 42 of the C.P.C. the Board of Revenue also dismissed the appeal and held
that theauction sale in pursuance of the decree of the Judge, Small Causes Court was void
and did not invest the decree-holder-purchaser with any title.

On the appellant's writ petition a single Judge of the High Court quashed the judgment of the
Revenue Board as well as of the Additional Commissioner holding that the execution sale of
the land was proper under section 42 of the Code. On appeal a Full Bench of the High Court
(by majority), it held that since the Small Causes Court, had no jurisdiction to execute the
decree by attachment and sale of the immovable property and dismissed the appeal.

Facts:

One Matadin, father of Ram Lochan, respondent 6 herein, was a fixed rate tenant of the plots
in dispute measuring 2.11 acres. One Ram Naresh Singh (deceased), brother of appellant 1
herein, namely Mahadeo Prasad Singh, obtained a money decree against Matadin on
February 18, 1953 from the Judge, Small Causes Court, Varanasi suit No. 847 of 1953. Ram
Naresh Singh sought to execute the decree. As a consequence, the decree was transferred
from the Court of the Judge of Small Causes to the Court of Munsif, Varanasi, for execution.
The plots in dispute were put to auction by the executing court, and were purchased by the
decree-holder on July 20, 1956. The sale was confirmed on August 29, 1956 and the sale
certificate was issued on September 8, 1956. The decreeholder-purchaser, Ram Naresh Singh,
took delivery of possession over these plots on March 14, 1957. Thereafter, he further sold
the plots to appellant 2 and respondents 6 to 10. Matadin, however, died sometime in 1960.
Thereafter his son Ram Lochan respondent 1, herein, instituted a suit on June 14, 1961 i.e.
more than three years after the delivery of possession to the decree-holder-purchaser, Ram
Naresh Singh, under section 229B read with Section 209 of the U. P. Zamindari Abolition
and Land Reforms Act in the Revenue court against the present appellants, for a declaration
that he is in possession of the suit land as Bhoomidar. In the alternative, he claimed the relief
of possession on the same basis. He pleaded that his father, Ram Naresh Singh was the
original Bhoomidar and remained in possession of the suit land till his death and thereafter,
the plaintiff as the heir of the deceased continue in possession as Bhoomidar. He further
alleged that the sale in favour of Ram Naresh Singh was without jurisdiction and a nullity; as
it had been made without the knowledge of or notice to his father.

Issue:

The principal question that falls to be considered in this appeal is whether the High Court was
right in holding that the execution sale of the land in dispute was totally without jurisdiction
and null and void.

Judgement:

Ratio:
The crux of the Supreme court judgement is that the provisions of Section 39 are not
mandatory because the court will have discretion in the matter which can be exercised by it,
judicially. The decree-holder would not have any vested or substantive right to get the decree
transferred to another court.

Orbiter:

The SC ints judgment said that this is not a case of an irregular or voidable sale which
continues to subsist so long as it is not set aside, but of a sale which was entirely without
jurisdiction. It was non est in the eye of law. Such a nullity does not from its very nature,
need setting aside. However, note that the amendment made by the U.P. (Act XXIV) of 1954
was deleted by another U.P. (Amendment) Act XIV of 1970, and the unamended sub-section
(1) of Section 42, as it existed before the amendment of 1954, was revived. But,
this Amendment Act (XIV of 1970) was not given retrospective operation.

Shyam Singh vs Collector, District Hamirpur

Decided on 25 September, 1992

Equivalent citations: 1993 (2) BLJR 1171, 1993 76 CompCas 525 SC, 1992 (2) SCALE 692,
1993 Supp (1) SCC 693, 1992 Supp 1 SCR 862

Court: Supreme Court of India

Bench: Justice M Venkatachaliah, Justice P Sawant, N Singh

Strength of bench- 3

Provision: Order 21 Rule 30(e), Section 10(b) Limitation act, 1963

Historical Background

This appeal is against an order passed by the High Court dismissing the Writ Application
filed behalf of the appellant for quashing the proceedings initiated by the respondents for sale
of 22 acres of land which had been mortgaged in favour of the State Bank of India
(hereinafter referred to as 'the Bank') in connection with a loan amounting to Rs.34,000/-
advanced to the appellant in, the year 1972 for purchase of a tractor. The tractor so purchased
had been hypothecated with the Bank.
Facts:

On various dates the appellant paid Rs. 11,500/- towards the instalments and the interest in
respect of the aforesaid loan. In July 1977, the Bank approached the concerned Tehsildar for
recovery of Rs.44,872.60 the outstanding amount till that date in accordance with the
procedure prescribed by Section 10-B of the U.P. Agricultural Credit Act, 1973. The
Tehsildar initiated recovery proceedings and pursuant to an order passed by him on
16.12.1977, the aforesaid tractor was attached and was taken away from the custody of the
appellant on 26.12.1977. From the recovery proceeding of Tehsildar it appeared that interest
upto 7th July, 1977 had been recovered and the total amount due was Rs.40,793.29. In the
column meant for estimated value for the tractor, it was mentioned as Rs.46,146.36.

Issue

Power of Tehsildar and bank regarding recovery of loan under Section 10-B of the Act of
Limitation Act and judicial discretion vested under Order 21, Rule 21 of the Code.

Judgement

Ratio:

the appeal is allowed to the extent that the respondents are directed to ascertain the amount
which has been recovered or < shall be deemed to have been recovered from the tractor,
towards the dues. It is only if the total amount of the dues of the Bank has not been realised,
the respondents shall be at liberty to proceed with the sale of the lands which had been
mortgaged with the Bank.

Orbiter:

The tractor in question was seized and removed in accordance with a statutory provision; The
right of the Bank to follow one or the other modes, separately or simultaneously, for the
realisation of the dues has to be recognised. But that right does not extend to the extent of
selling the different movable or immovable properties of the debtor under different provisions
and through different procedures without ascertaining whether the amount due has already
been realised by sale of the property already attached in the proceeding which were initiated
for the purpose. What happened to the proceedings initiated under Section 10-B of the
Limitation Act and to the tractor of the appellant is not known. Accordingly, the appeal is
allowed to the extent that the respondents are directed to ascertain the amount which has been
recovered or < shall be deemed to have been recovered from the tractor, towards the dues. It
is only if the total amount of the dues of the Bank has not been realised, the respondents shall
be at liberty to proceed with the sale of the lands which had been mortgaged with the Bank.

Manilal Mohanlal Shah And Others vs Sardar Sayed Ahmed Sayed Mahmad Decided
on 14 April, 1954
Equivalent citations: 1954 AIR 349, 1955 SCR 108
Court: Supreme Court of India

Bench: CJ Mr. M.C. Mahajan, Mr. Justice Vivian Bose, Mr. Justice Ghulam Hasan

Strength of bench- 3

Provision: Order 21, rules 84 and 85

Facts

On March 30, 1940, the decree holders applied for the enforcement of his disposal through
the sale of 4 properties belonging to the enforcement debtor. The properties were valued at
Rs. 1,50,000 and were the subject of a previous mortgage of Rs. 60,000 in favor of the
auction--buyer. Apparently, under the terms of the mortgage agreement, the mortgagee was
entitled to take action in the first instance against the first 3 properties and against the fourth
property only in the event of a fall in the selling price, in order to cover the deceretal amount.
The first 3 lots which we are dealing with in appeal alone have been sold to the mortgagee for
Rs. 53,510 on August 13, 1942. They were sold clear of the encumbrance by order of the
court made at the request of the decree holder and the mortgagee, but without notice to the
judgment debtor. However, it should be noted that, at the request of certain third parties, their
annuity rights to the land for sale were declared in the notice of sale. On the same day, the
mortgageees applied for a set-off, stating that the purchase price was Rs. 53,510 while the
amount due to them was Rs. 1,20,000.
Issue

The question raised in this case whether the failure to make the deposit under Order XXI,
rules 84 and 85, is only a material irregularity in the sale which can only be set aside under
rule 90 or whether it is wholly void.

Judgment

Ratio:

The SC held that the provisions of the rules requiring the deposit of 25 per cent of the
purchase-money immediately on the person being declared as a purchaser and the payment of
the balance within 15 days of the sale are mandatory and upon non-compliance with these
provisions there is no sale at all.

Orbiter:

The rules do not contemplate that there can be any sale in favour of a purchaser without
depositing 25 per cent of the purchase-money in the first instance and the balance within 15
days. When there is no sale within the contemplation of these rules, there can be no question
of material irregularity in the conduct of the sale. Non- payment of the price on the part of the
defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the
Court is bound to resell the property in the event of a default shows that the previous
proceedings for sale are completely wiped out as if they do not exist in the eye of law. We
hold, therefore, that in the circumstances of the present case there was no sale and the
purchasers acquired. no rights at all. The SC dismissed the appeal.