Q. Discuss the jurisdiction and powers of the courts executing a decree.

The word “execution” stands derived from the Latin word “ex sequi” which means
to follow out, follow to the end or perform. “Execution” signifies in law the
obtaining of actual possession of anything acquired by judgment of law. Execution
signifies the last performance of an act. 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.

Courts which can execute decrees Section 38 of the Code states that a decree can
be executed either by the Court of the first instance or by the Court to which it has
been sent for execution. Section 37 of the Code further establishes the scope of the
expression “court which passed a decree” with the object of enabling a decree-
holder to recover the fruits of the decree. The courts which fall within the said
expression are as follows: 1. The court of first instance which actually passed the
decree ; 2. The court of first instance in the case of appellate decrees ; 3. Where the
court of first instance has ceased to exist, the court which would have jurisdiction
to try the suit at the time of execution ; and 4. Where the court of first instance has
ceased to have jurisdiction to execute the decree, the court which at the time of
execution would have had jurisdiction to try the suit. Explanation to the section
clarifies that the court of first instance shall have jurisdiction to execute a decree
even in the case of any area being transferred from the jurisdiction of the court of
first instance to the jurisdiction of any other court. In such cases, the court to the
jurisdiction of which such area has been transferred will also have jurisdiction to
execute the decree, provided that the said court had jurisdiction to try the said suit
when the application for execution was made.

Q. Discuss the questions to be determined by the executing court.

Questions to be determined by the court executing the decree All the questions
relating to execution, discharge and satisfaction of the decree are to be decided by
the Executing Court and even the decision of the complicated questions is also not
prohibited. Section 47 of the Civil Procedure Code provides for disposal of all the
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. Even the Code bars the powers to decide as the person raising objection is a
Judgment Debtor or his representative and such question would also relate to
execution, discharge or satisfaction of a decree.

Power of executing Court to question the validity of the decree:- An executing

Court cannot go behind the decree or question the jurisdiction of the Court which
passed it (22 P.R.1919, I.L.R., 5. Lah. 54). Its function is to execute the decree as it
stands. It may, however, refer to the judgment to ascertain its meaning when the
terms of the decree are ambiguous. 4. Power of executing court to decide question
arising in execution:- Section 47 of the Code of Civil Procedure confers wide
powers on the executing Court to decide 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. Such questions must be decided
by the executing Court and no separate suit is maintainable for the purpose. A
purchaser at a sale in execution of the decree would also be a party to the suit in
view of the amendments made in the explanation to this section by Act No.66 of
1956. A decision under section 47 is deemed to be a decree, [vide section 2 (2)],
and is, therefore, appealable as such. {If a third party claim(s) right(s) in the
property subject matter of decree under execution by filing an application under
Section 47 or Order XXI of the Code of Civil Procedure, 1908 and the Court is of
the opinion that the application is frivolous, it shall record reasons while declining
to issue notice thereof. The Court should also refrain from entertaining such
application(s) that has already been considered by the Court while adjudicating the
suit or which raises any such issue which otherwise could have been raised and
determined during adjudication of suit if due diligence was exercised by the
applicant. The Court should allow taking of evidence during the execution
proceedings only in exceptional and rare cases where the question of fact could not
be decided by resorting to any other expeditious method like appointment of
Commissioner or calling for electronic materials including photographs or video
with affidavits. The Court should in appropriate cases where it finds the objection
or resistance or claim to be frivolous or mala fide, resort to sub-rule (2) of Rule 98
of Order XXI as well as grant compensatory costs in accordance with Section
35A.} {Rule 4 Amended vide C.S. No. 84 Rules/II.D4 dated 21.11.2022}.

Q. Explain the mode of execution of a decree under the Code of Civil

Procedure, 1908.

Decrees are subject to the same rules of execution. Once the decrees are carried
out, the remedy is sought after. Deeds must be carried out in order for the
proceedings to proceed. The procedure must be swift and efficient in order to
enable the impacted party to receive the appropriate relief. It must also be
thoroughly executed. The Code of Civil Procedure’s Order XXI addresses the
carrying out of decisions and orders.

execution of decree meaning

 The CPC contains no definition for the word “execution.” The act of
carrying out, upholding, or giving effect to a court of justice’s order or
verdict is referred to as “execution.”
 In simple terms, “execution” refers to the act of putting the court’s decree or
judgment into effect by requiring the judgment debtor to follow the
directives in the decree or order and allowing the decree holder to retrieve
the item that was awarded to him by the decree.

what are the various modes of execution of decree under cpc?

A decree may be carried out in a number of ways, but the Court must adhere to the
relevant guidelines outlined in Order 21. Order XXI Rule 10 states that in order for
the decree-holder to have it executed, he must submit an application to the court.
The various modes of execution of decree cpc are as follows:

Through Delivery of Property:

 Movable Property: In the event that the property is movable, the decree is
carried out by taking possession of it and giving it to the decree-holder or
another individual he appoints. The confiscated moveable property must be
handed to the buyer if it is going to be sold.
 Immovable Property: Immovable property may be delivered to the
individual to whom it has been awarded or to that person’s representative
when the decree calls for the delivery of such property.
Through Attachment and Sale of Property:

 On the decree-holder’s request, a decree may also be carried out by

attachment and sale, the only sale in which no property is attached.
 The code establishes the process for achieving attachment and acknowledges
the decree-holder’s authority to seize the judgment debtor’s property in an
execution case.

Through Arrest and Detention:

 One way to carry out an order is by an arrest. Arrest and custody are covered
under Section 55 of CPC.
 If the decree calls for payment of money, the judgment debtor may be placed
in civil imprisonment to carry out the terms of the ruling.
 According to Rule 38 of CPC, in order to arrest the judgment debtor, the
officer designated for execution must obtain a warrant.

By Appointment of a Receiver:

 The several clauses pertaining to the receiver’s appointment are contained in

CPC Order XL.
 The Court has appointed the receiver, who is a neutral, unbiased third-party
person.
 The Court is also able to decide how much the receiver will be paid for the
services they rendered. The receiver is required to:
 Oversee and safeguard the property
 Assume responsibility for the collection of rent and earnings from the
property.
 Oversee the application and distribution of rent and profits.
 Be cautious when executing documents.
 The receiver may be granted further authority by the court at its discretion.

Through Partition:

 The decree in the property division litigation is covered under Order XX,
Rule 18 of the Code of Civil Procedure.
 When a court issues a judgment for the division of any kind of property,
whether it be immovable or mobile, and if the process proves onerous, the
court may issue an interim decree that precisely defines each property’s
various rights.
  The Collector or any other gazetted person who reports to the Collector and
who must be selected by the Collector themselves may make the partition
decree when it comes to the estate assessed for the purpose of paying taxes
to the Government.

Through Cross decrees & Cross-claims:

 The CPC’s Order XXI, Rule 18, lays forth the guidelines for execution in
cases involving cross-decrees. When petitions are filed with a court through
separate suits, the court may execute both concurrently in order to pay the
two amounts of money that were transferred between the same parties or
individuals.
 Cross-claim scenarios are governed by the rules for execution outlined in
Order XXI Rule 19. When two distinct parties who owe each other money
file an application with the court to execute a decree, it’s known as a cross-
claim.

Through Payment of Money:

The numerous ways to pay the money required by the decree are outlined in Order
XXI Rule 1 of CPC. In line with this regulation:

 The money may be deposited into the court that has the authority to carry
out the decree;
 It may be sent there by money order or bank deposit;
 It may also be paid to the decree holder outside of the court using a
previously agreed-upon method;
 The court may also specify other methods in the decree.

Therefore, the method used by the courts to execute a decree in the decree holder’s
favour is called execution. An adequate remedy must be given to the decree-holder
in the event that the judgment debtor fails to comply with the decree, as the mere
passing of a decree is insufficient. Due to the severity of these modes, which
include detention and judgment, the debtor is left with little choice except to
comply with the decree’s demands and pay the stipulated amount.

Q. Examine the concept of stay of execution and the grounds on which a stay
may be granted.
Introduction

The concept of stay of execution plays a significant role in ensuring that justice is
not compromised by premature enforcement of a decree. Execution refers to the
process by which a decree-holder enforces the judgment of the court. However,
under certain circumstances, a judgment-debtor or an affected party may seek to
temporarily halt the execution of a decree. This is known as a stay of execution,
which serves as a legal safeguard against irreparable harm or injustice. The
provisions regarding the stay of execution are primarily found in Order XXI, Rule
26-29 of the Code of Civil Procedure, 1908 (CPC), along with relevant
provisions in Section 151 under the court’s inherent powers.

Meaning of Stay of Execution

A stay of execution refers to a temporary suspension of the enforcement of a

decree or order by the executing court. It prevents the decree-holder from
proceeding with execution until further orders from the court. The purpose of
granting a stay is to ensure that the rights of both parties are adequately protected
and that the decree is not executed unfairly, particularly when an appeal is pending
or when circumstances warrant a delay in enforcement.

Legal Provisions Governing Stay of Execution

The CPC provides specific guidelines regarding the stay of execution:

1. Order XXI, Rule 26 – Provides that the executing court may stay execution
for a reasonable time if the judgment-debtor presents sufficient cause.
2. Order XXI, Rule 29 – Allows stay of execution when a separate suit
challenging the decree is pending.
3. Order XLI, Rule 5 – Provides for stay of execution when an appeal is
pending.
4. Section 151 CPC – Grants the court inherent powers to stay execution in the
interest of justice.

Grounds for Granting Stay of Execution

The stay of execution is not granted automatically; the judgment-debtor or affected

party must demonstrate sufficient grounds. The primary reasons for granting a stay
of execution include:
1. Pending Appeal Against the Decree
o The most common ground for stay of execution is when an appeal
against the decree is filed in a higher court. Under Order XLI, Rule
5, an appellate court may grant a stay if it is satisfied that substantial
loss may be caused to the appellant if execution is not stayed.
o The appellant must prove that:
 There is a prima facie case for appeal.
 There is a risk of irreparable harm if execution proceeds.
 The balance of convenience favors granting a stay.

2. Risk of Irreparable Harm or Injury

o A stay may be granted if executing the decree would cause irreparable
harm that cannot be compensated by monetary means. For example, in
the case of decrees for possession of immovable property, if
execution is carried out before an appeal is decided, it may lead to
irreversible consequences.

3. Existence of Fraud or Misrepresentation

o If the judgment-debtor can establish that the decree was obtained by
fraud, misrepresentation, or suppression of material facts, the court
may grant a stay until the allegations are investigated.

4. Illegality or Nullity of the Decree

o If the decree is prima facie illegal, void, or unenforceable due to a
jurisdictional defect or other legal infirmities, a stay may be granted to
prevent undue hardship to the judgment-debtor.

5. Stay Under Inherent Powers of the Court (Section 151 CPC)

o Even if there is no explicit provision for a stay, the court may exercise
its inherent powers under Section 151 CPC to prevent an abuse of
process or miscarriage of justice. Courts have used this provision in
exceptional circumstances where strict application of procedural rules
would lead to injustice.

6. Pending Suit Challenging the Decree (Order XXI, Rule 29)

o If a separate suit is pending challenging the decree’s validity, the
executing court may stay execution to avoid conflicting decisions.

7. Failure to Comply with Procedural Requirements

 o If the decree-holder has not complied with procedural requirements
for execution, such as failure to serve notice under Order XXI, Rule
22, the execution may be stayed until proper compliance.

Procedure for Obtaining Stay of Execution

The judgment-debtor or affected party must file an application for stay, supported
by an affidavit and necessary documents. The following steps are involved:

1. Application to the Executing Court or Appellate Court

o If an appeal is filed, the application is made before the appellate court.
o If there is no appeal, the application may be filed before the executing
court.

2. Notice to the Opposing Party

o The decree-holder must be given an opportunity to present arguments
against granting the stay.

3. Court’s Consideration of Factors

o The court will examine the merits of the application, the balance of
convenience, and the likelihood of harm to either party.

4. Grant of Stay with Conditions

o If a stay is granted, the court may impose conditions such as requiring
the judgment-debtor to furnish security or deposit the decreed amount
in court.

Effect of Stay of Execution

Once a stay is granted:

 The decree-holder is prohibited from taking steps to execute the decree.

 Any proceedings conducted in violation of the stay order may be declared
void.

Conclusion

The stay of execution serves as an essential safeguard in civil litigation, ensuring

that decrees are not executed prematurely or unfairly. Courts exercise discretion in
granting a stay based on well-established legal principles to balance the rights of
the decree-holder and judgment-debtor. While the law provides for various
grounds to seek a stay, it is not an automatic right and requires judicial scrutiny to
prevent misuse.