Execution of the Decree/Order

(Order XXI & Section 36-74)

I. General Principles

• When does a decree become enforceable? - After the final judgment comes and the
period of appeal gets over.
• Decree holder: In whose favor the decree has been passed.
• Judgment debtor: Against whom the decree has been passed.
• Court before which the execution proceedings can be filed: the court which has
passed the decree (the court of first instance) or the court to which the decree is
transferred for execution.

II. Modes of Execution

Section 51: Powers of Court to enforce execution— Subject to such conditions and
limitations as may be prescribed, the Court may, on the application of the decree-holder,
order execution of the decree—

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison (for such period not exceeding the period specified in
section 58);

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

Provided that, where the decree is for the payment of money, execution by detention in
prison shall not be ordered unless, after giving the judgment-debtor an opportunity of
showing cause why he should not be committed to prison, the Court, for reasons recorded in
writing, is satisfied—

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the
execution of the decree,—

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly
transferred, concealed, or removed any part of his property, or committed any other act of
bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay
the amount of the decree or some substantial part thereof and refuses or neglects or has
refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary
capacity to account.
Instances of Execution:

• Payment of Money: Detention or Attachment and Sale or both. Rule 30 of Order 21.
(Sahara scam example)
• Movable Property: Delivery of Property, Detention or Attachment. Rule 31 of Order
21. Seizure, sale
• Immovable Property: Delivery by way of dispossession. Rule 35 and 36. Warrant in
case of joint possession and notice/warning in case of tenants.
• Execution of Sale Deed: Attachment of Property. Arrest & Detention.
• Execution of injunction/restitution of conjugal rights: Rule 32- Detain or attach
property.
• Decree against corporation for specific performance/injunction: Attach property of
corporate or detention of directors, principles or promotors (SC orders against Anil
Ambani) corporate=legal fiction
• Execution of document: Rule 34- court officer will execute the document by making
the judgment debtor sign it and complete all the formalities after the court takes his
objections on the draft prepared by decree holder. (Example of Sale Deed)
• Endorsement of negotiable instrument: executed in the same manner as that of
document (Rule 36). JD is made to sign and transfer.

Arrest and Detention: S. 55-59, R 37-40 of O 21

Can be arrested anytime and put in civil prison but

• no entry to arrest can be after sunset or before sunrise in a dwelling house

• Cannot break into the house
• No arrest to be made on payment of money to the arresting officer
• If there is a pardanashin woman in the house, the judgment debtor needs to be called
out, but if he denies the access and does not come out, police can break open the house

Section 56: Exception in case of women

Prohibition of arrest or detention of women in execution of decree for money—

Notwithstanding anything in this Part, the Court shall not order the arrest or detention in
the civil prison of a woman in execution of a decree for the payment of money.

Section 58: Detention & Release

Period of detention:

1. If amount is up to 5000 rupees, maximum detention of three months

2. If amount is between 2000 to 5000, then up to 6 weeks
3. No detention for less than 2000

Release:

1. If money is paid
2. If decree amount is satisfied
3. On request of decree holder
 4. If decree holder denies subsistence allowance (S. 57)

**Release is not equivalent to discharge of liability. But the JD cannot be arrested for
discharging the same liability once he is released.

Release on ground of illness – Section 59

• If a person is ill before arrest, he cannot be arrested

• If arrested and brought before the court and if court is of the opinion that judgment
debtor is not in a fit state of health to be kept in prison, he can be released on grounds
of illness.
• If arrested and put in civil prison and then gets ill, then can be released-
- By State government on grounds of infectious or contagious disease
- Court, on grounds of serious illness

JD may be re-arrested, if he has been released on grounds of illness.

Procedure of Arrest – Rules 37 to 40

• R. 37- No arrest without notice to JD

• R. 38- Issue of warrant and person brought to court
• R. 39- Payment of subsistence allowance
• R. 40- Proceedings after arrest or appearance upon notice

Attachment of Property (Order 21, R. 41 – 57 + Section 60-64)

• Example of attachment of Vijay Mallya's properties in loan fraud case

• Nature of property which can and cannot be attached (movable and immovable):
bungalows, shares, liquor bottles, his own firm
• Section 60 essence- properties that can be sold and money be extracted out of them
can be attached but properties necessary to the debtor cannot be attached.

Modes of Attachment of Movable Property

• Rule 43- Actual Seizure, if not durable then shall be sold.

• Rule 43A- Custody to person (eg. Growing timber) who acts like surety.
• Rule 47- Where JD has a share in the property, he is given notice prohibiting from
transferring his share.

Modes of Attachment of Immovable Property

• By notice to JD prohibiting him from transferring the property under attachment.

• Section 64 makes such transfer void.

Rent or Mesne Profits

• Rule 42- if decree is for recovery of rent or mesne profits, the amount of which has
not been ascertained, property of JD can still be attached.

Attachment of Salary - Rule 48 and 48A

 • Government Officer- Notice to the authority disbursing the salary to transfer it to the
court
• Private employee- Notice of HR or finance department to transfer salary of JD to the
court

Delivery of Property

• Movable Property (Section 51(a), Rule 31)

31. Decree for specific movable property. — (1) Where the decree is for any specific
movable, or for any share in a specific movable, it may be executed by the seizure, if
practicable, of the movable or share, and by the delivery thereof to the party to whom it has
been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the
detention in the civil prison of the judgment-debtor, or by the attachment of his property, or
by both.

(2) Where any attachment under sub-rule (1) has remained in force for 3 [three months,] if
the judgment-debtor has not obeyed the decree and the decree-holder has applied to have
the attached property sold, such property may be sold, and out of the proceeds the Court
may award to the decree-holder, in cases where any amount has been fixed by the decree to
be paid as an alternative to delivery of movable property, such amount, and in other cases,
such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor
on his application.

(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the
same which he is bound to pay, or where, at the end of 3 [three months] from the date of the
attachment, no application to have the property sold has been made, or, if made, has been
refused, the attachment shall cease.

• Immovable Property (Rules 35-36)

35. Decree for immovable property. — (1) Where a decree is for the delivery of any
immovable property, possession thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if
necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall
be delivered by affixing a copy of the warrant in some conspicuous place on the property and
proclaiming by beat of drum, or other customary mode, at some convenient place, the
substance of the decree.

(3) Where possession of any building on enclosure is to be delivered and the person in
possession, being bound by the decree, does not afford free access, the Court, through its
officers, may, after giving reasonable warning and facility to any woman not appearing in
public according to the customs of the country to withdraw, remove or open any lock or bolt
or break open any door or do any other act necessary for putting the decree-holder in
possession.
36. Decree for delivery of immovable property when in occupancy of tenant — Where
a decree is for the delivery of any immovable property in the occupancy of a tenant or other
person entitled to occupy the same and not bound by the decree to relinquish such
occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in
some conspicuous place on the property, and proclaiming to the occupant by beat of drum
or other customary mode, at some convenient place, the substance of the decree in regard to
the property.

Sale (without attachment) of Property (Section 65-73 and Rules 64 to 94 of Order XXI)

Key points:

• Executing court is empowered to order attachment of a property and put the

sufficient portion of it for sale, and pay the sale proceeds to the Decree Holder (DH)
to satisfy the decree.
• The sale shall be confined to the sufficient portion of the property. The court shall, in
its discretion, examine and determine whether the whole of the attached property or
a portion of it alone needs to be put on sale to satisfy the decree. Excessive execution
is unwarranted and unlawful.
• The sale should be done by public auction by an officer of the court or someone else
appointed by the court. Court should issue proclamation of sale. The DH can apply for
sale of the property.
• The court should cause to issue notices to the Judgment Debtor (JD) and DH. The
service of notice on the JD is an indispensable basic step, the failure of which will make
the sale a nullity. On hearing the DH and other parties and admitting the evidence the
parties produce, the court should settle and approve the Sale Proclamation. The judge
should then sign the proclamation of sale and make order for sale fixing the time, date
and place.
• Within a week, the DH should pay the expenses of the sale and the fee for the
proclamation and warrant to the court, along with the number of copies of
proclamation as required. In case of failure the court may dismiss the petition.
• The proclamation of sale shall be made by beat of drum or other customary practices.
A copy of the proclamation must be affixed on a conspicuous part of the property, the
Courthouse, the District Collector’s office and the office of the Gram Panchayat. If the
court so directs, the proclamation should also be published in the Official Gazette or
in a local news paper.