There are several different types of orders of the court – and you might get confused between the technicalities of what an order, a decree, a judgment, etc. means and entails. A Decree is the full and final observation/judgment that is passed by the Court of Law after adjudicating the disputes between the parties. While many people think that receiving a favourable Order/Judgement is the final and conclusive step in the process of litigation, it may be surprising for people that there lies a further step in the litigation process which is "Execution". Execution is the process by which one can get the order and what it entails, quite literally, executed. The process to initiate the process of Execution takes only after the Court has pronounced its Judgement and the Judgment has attained finality.
For example: In a dispute between Party A and Party B, Party A has filed a suit against Party B for recovery of an "X' amount. The Court upon adjudicating the dispute comes to a final conclusion that Party B owes money to Party A. It thus directs Party B to pay the outstanding sums in a prescribed period to Party A through its judgment.
Is this enough for Party A to receive the sum and for Party B to pay? Well, it should be but in certain cases, it isn't. In cases where Parties don't have the intention to pay up, even the court's order isn't enough, and hence, execution of such orders becomes incumbent.
In such situations, even after receiving a favourable Order, the party receiving a favourable Order (decree holder) awaits for the opposite party (judgment debtor) to take action. Post the final conclusion of the matter, the party must not wait for the opposite party to take steps and should proceed to file an application for "Execution of Decree".
So to say, the procedure for Execution of Decree begins when the Judgement has attained finality and there is no Appeal or Revision Application filed /pending before the Court of Law.
There might be several situations such as an arbitration proceeding or civil suits where execution of decree becomes necessary since the decree-holder is unable to get requisite relief from the debtor.
What is Execution?
Execution is a process by which the Decree Holder "enforces the decree", passed by the Court of Law. Execution is the final and conclusive step of civil litigation. While the term "Execution" has not been defined under the Code of Civil Procedure, 1908, Sections 36 to 74 and Order 21 of the Code of Civil Procedure, 1908 deals with the Execution of Decree. By initiating the process of Execution, the Decree Holder has undertaken steps to realise the fruits of the Decree, so as to say recover the sums due from the Judgement Debtor.
Who can apply for Execution
The process of execution is meant and provided for the purpose of ensuring that an aggrieved party, that has received a favourable order, is able to get what has been rightfully awarded as theirs.
- Decree Holder
- In the event Decree Holder is dead, Legal Representative of Decree Holder
- Any person claiming under the Decree Holder
Execution: How and When can a petition for execution be filed
In order to proceed for execution of a decree, the first and foremost step that the Decree Holder has to do is to file a written application before the Court which has passed the Decree or the Court to which the Decree has been sent for Execution. Until and unless there is a stay on the execution proceedings by the Appellate Court, the Decree Holder can prefer the application for execution of Decree anytime after the Decree is obtained.
While the Decree Holder can file this application for execution of Decree anytime after the Decree is passed, however, there is a limitation of 12 years from the date it is passed within which the Decree Holder or its Legal Representative can prefer such application.
Steps of Execution
- Decree Holder has to file a written application seeking execution of decree with the court which has passed the Decree or the Court to which it is transferred. The Execution Application must contain some essential ingredients like suit number, amount to be recovered from the Judgment Debtor, interest computed on the outstanding amount, mode of execution, and any other assistance that is required;
- Upon the application being accepted, a notice is issued on the Judgement Debtor in terms of Rule 22 of the Code of Civil Procedure, 1908. Under this notice, an opportunity is provided to the Judgement Debtor to appear before the Court executing the Decree;
- In the event, even after the receipt of the notice, if the Judgement Debtor fails to appear before the Court, the Court at the request of the Decree Holder may proceed to issue a warrant for attachment of movable/immovable property of the Judgement Debtor or issue notice for the arrest of the Judgement Debtor;
- The Court Bailiff upon the warrant being issued will attach this warrant for attachment of property at the premises of the Judgement Debtor. Thereafter, a period of two weeks is given to the Judgement Debtor to come forward and pay the outstanding sums. If the Judgement Debtor fails to come forward, the bailiff in consonance of the Decree Holder will proceed to take steps for sale of the Immovable Property;
- Once the sale is completed, the proceeds of the sale are given to the Decree Holder to recover its outstanding dues. Upon the completion of the entire process, the bailiff files a report with the Court executing the Decree.
Conclusion
Order 21 of the Code of Civil Procedure, 1908 gives an exhaustive, elaborate and detailed process of the execution of the decree and also explains the various modes of executing the decree before the court of law.
The above steps clearly clarify the procedure for Execution of Decree. It is evidently clear from the above that the Execution is the final and conclusive step of litigation and comes to end when the Decree Holder recovers his/her outstanding sums. The legislature with the intent to protect the interest of the Decree Holder has encapsulated these provisions in the law, which is like a silver living for any Decree Holder.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
