Discuss the salient feature of the execution of Decree ?

Question: Discuss the salient feature of the execution of  Decree ?

And: Execution of Decree and Orders (section 36  to 74 and order 21 of the code of civil procedure, 1908.

It has been said that in India, Pakistan and Bangladesh, the difficulties of Litigant begins when he was obtained  a Decree.

 A Decree Holder  puts it in execution to get the benefit of the decree. The unsuccessful party goes  to the  Appeal court  or Revision for doing set aside or modified the degree of the court. The decree is to be executed unless and until the Decree is get to the bottom of in the decree passed by the Higher Court.

Court competent to execute the degree:

Section: 38 A decree may be executed either by the court which passed it or by the court to which it is sent for execution.

Section: 38-46 and order 21 rule 3-9 deal with transfer of decree, mode of transfer and function of the transferee court.

 A Decree may be   transferred by the court passed the Decree.

1. The court may be transferred to the same district court (Rule 5) or  in  other District court (Rule 5) or High Court Division (Rule 9).  

2. The code is sending a degree to another code for execution.

3. The court shall send a copy of the decree.

4. The court shall send a certificate that the decree remains unsatisfied.

5. The court shall send a copy of the Order for Execution.

 Limit of  time for execution (Section:48)

A Lower Court can be executed within 3 years in case of without registration the decree or order.

If The Decree or Order  would be registered in such case Six years. On the other side A High Court can be Executed within 12 years. under  Article 183 of the limitation Act.

Functions of the executing Court:

Court executing the decree cannot question the Legality  of a Decree but The execution court can arise the following question by  way of exception.

1.  The court Can be any objection on the question that the court passed the decree. The Court  had no jurisdiction to pass it.

2. The question of territorial or pecuniary Jurisdiction does not arise when  the decree is to be Executed by the same Court Which passed the decree. But if the decree be insufficiency the executive Court. 

because the decree was passed again the Dead Men. The execution court may question on it.

3. When the degree is ambiguity. The execution Court may interpret the degree. The executing Court competent to the conduct the decree and it just/ Proper meaning.

Mode of Execution: 

The mode of execution of Decree depends on the nature of a Decree.

The Decree may be of;

1. For recovery of money.

2. For specific performance of contract. Or

3. For recovery of  specific  Immovable property or

4. For  restitution of conjugal rights etc.

section 30 to 36 deal with the mode of execution of each of the above Decree.

Execution  case has to  file in a prescribed from [Order 21 Rule 10 (2)]  

1. Notice does not require to issue to the judgement debtor. if the Execution case is made with 2 years from the date of degree.

2. Notice is required if it is made legal representative.

Arrest and Detention:

The remedy of arrest and detention in Civil prison is available only against the judgement-debtor in a money Decree.

A notice is to be issued to show Cause before arresting him. The procedure laid down in under section 37-40 are to be followed.

A decree is Executable in the manner and the procedure as laid down in Order 21 of the code of civil procedure.

However A decree passed in a suit for specific performance of contract or for restitution of conjugal rights or for injunction cannot be executed like other degree but can be enforced in the manner in rule 32 of Order 21. A Simple declaratory decree also may not be Executable.

An executable decree is executed by filing an application for executive. order 21 Rule 10 to 19. If There is any Bona fide mistake. The court may allow the defects to be corrected and if after giving an opportunity to  correct the defects but the decree holder fails. The Execution  application may be rejected.

Powers of Executing Court:

An executing code is to execute the decree as it stands. There is no power of executing Court to go beyond, but the degree may refuse to execute, if the decree is a passed again dead  man or passed by the court having no Jurisdiction.

Stay of Execution case: 

An execution case may be stayed for a reasonable time upon Showing Sufficient Cause. The principal have been mentioned in the chapter on appeals. The power given is discretionary.

This rule applies  when judgement debtor files a subsequent suit  challenging the Validity of the degree but This rule will not apply when a third  party files a Suit against the decree holder. The power is to be executed Judiciously.

Intervention of third party in a civil proceeding, order 21 rule 58, 89 to  91, 101-103

Rule: 58 
if  Third person Property is wrongly attested in execution of a Decree Property.  The third person may file miscellaneous case under order 21 rule 58 for releasing the attachment Order.

Rules 89 to 91:
Decree holder or buyer has affected by auctions sale. Decree holder or buyer may set aside the auction Sale Calling those Provisions.


Rules: 100-103
আইনকে নিজের হাতে না নেওয়া, যদি অন্য ব‍্যক্তি  দখলে থাকলে । V.V. Important.

If a person other than the judgement debtor is dispossessed of an Immovable property by the decree holder. The person may file an application Under Rule 100 for the possession of such Property before the court after receiving  Such an application,
The court shall fix a day for investigating the matter and the could shall issue summons upon the person against whom the application has been made. If The Court is satisfied on  investigation that the application was in position on his own account. The possession shall be Restored to the applicant. There is no scope of considering whether he has any title to the property. Any person transferee from the judgement debtor can not get any relief under this Rule. Moreover such relief also cannot be given by Calling  inherent power of the Court.

A party filed a suit under the rule 103 for  establishment of his right to the present possession of the property and The party’s made a prayer for holding back the direction given under  Rule 101 to restore possession to the person  dispossessed as a result of execution of a Decree.

A mandatory provision under sub-rule (2) of  rule 100 is that
Any order can not be passed without issuing a notice upon the party against whom the application is made. only after  appearance of that party and after hearing him and Considering the evidence produced by him, an Order  shall be passed.

(যদি ক্রেতা  স্থাবর সম্পত্তি দখলে না থাকে, অন্য ব্যক্তির স্থাবর সম্পত্তি দখলে থাকে। তখন ক্রেতা  নিজের দখলে নেওয়ার জন্য দখলদার ব্যক্তিকে আক্রমণ করলে। তখন দখল ব্যক্তি মামলা করতে পারবে।)