This article discusses the various Modes of Execution, as per the provisions of the Code of Civil Procedure. This article intends to explain the proceedings of these various modes, like arrest and detention, attachment and sale of the property. It also further discusses the situations of execution of a decree in more than one place, difficulties of partition, cross-claims and cross decrees, appointment of the receiver, etc.
Introduction
The execution of a decree is a crucial aspect of all proceedings. It is necessary for this procedure to be carried out in accordance with all the rules and regulations in order for the decree-holder to receive the appropriate relief. If the proceedings are quick and effective then the process is smooth for all stakeholders. Order XXI of the Civil Procedure Code states the rules of the execution of decrees and orders.
The Choice of the Modes of Execution
There are multiple modes of execution, available as per Section 51 of the Code of Civil Procedure. According to Section 51, the modes of execution include the following –
- By delivery of any property (movable or immovable) specifically decreed.
- By sale of the property with or without the attachment of the property. If the property is situated within the jurisdiction of the court then it has the power to attach the property.
- By arrest and detention. However, this mode should not be exercised without giving a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be imprisoned.
- Execution by appointing a receiver
Section 47 of the Civil Procedure Code refers to specific questions that need to be answered by the Court before executing a decree. The Court must determine all the queries arising amongst the affected parties. For instance –
- Execution of decree;
- The satisfaction of decree;
- Discharge of the decree;
- The Court can also determine whether the person is representative of a party or not.
The decree-holder has to submit an application to seek the execution of the decree. The application can be oral or written.
I. Execution of decree at more than one place
A decree holder can execute a decree in more than one place against the property of the judgment-debtor. Order XXI Rule 21 of the Code of Civil Procedure refers to the procedure for simultaneous execution.
In 2016, the Karnataka High Court passed a judgment regarding simultaneous execution. In the case of PAFCO 2916 INC. and Ors. v. Kingfisher Airlines Limited and Ors.[1], the court held that a decree-holder can file two execution petitions when it is understood, that the execution in each petition is solely for the decree amount pending from the defendants as regarded in that petition. In this case, the first execution application sought the arrest of the judgment debtor and the second application for execution was filed to proceed against the property of the same judgment debtor.
As per this rule, the court has the discretion to refuse execution against the person and property of the judgment debtor at the same time. It is crucial to note that Order 21 Rule 11 CPC does not prevent or restrict simultaneous executions. In a situation where two execution petitions are being filed simultaneously, the Court has the authority to refuse execution against the person and property of said judgment at the same time. Order 21 Rule 30 clarifies that it is as per the discretion of the Court.
In Prem Lata Agarwal v. Lakshman Prasad Gupta & Ors[2], Supreme Court observed that “simultaneous execution proceeding in more than one place is possible but the power shall be used in a restricted manner, in exceptional cases by imposing proper terms so that the judgment debtors do not face any hardship because of several executions are being allowed to be proceeded with at the same time.” Therefore, simultaneous execution proceedings are not without jurisdiction or illegal.
Adding to that, it should be noted that as per Section 39 CPC, simultaneous execution of a decree is allowed because it provides for the opportunity to execute a decree, to either the Court of the first instance or the Court where the decree has been sent for execution.
A decree can be enforced through delivery of any property mentioned in the decree, by attachment and sale, or through the sale without attachment of the property. Execution of a decree can also occur through arrest and detention. The decree may also be enforced through the appointment of a receiver or by effecting partition. It depends on the kind of relief the decree-holder is seeking, and the discretion of the Court, as per the circumstances of the case.
II. Payment of money
The multiple methods of payment under the decree are laid down in Order XXI Rule 1. The money may be paid through deposit into the Court that is competent to execute the decree. Order XXI rule 2 states the multiple rules relating to decree-holder payment out of Court, for which the judgment debtor must inform the Court about any payments that may have been made outside the Court.
Rule 30 ensures that the decree for payment of money can be executed by either detaining the judgment debtor or by attaching and selling his property. Rule 32 of the Order XXI states the multiple ways through which specific performance of a contract can be enforced.
III. Arrest and Detention
Arresting is one of the various modes of executing a decree. Section 56 deals with arrest and detention. If the decree is for payment of money, it can be executed through detention of the judgment debtor in civil imprisonment. As per Rule 38, the officer authorized for execution requires a warrant for the arrest of the judgment debtor.
For instance, a judgment debtor can be arrested at any point in time at any day during the execution of a decree. Once the arrest occurs, the judgment debtor needs to be brought before the court, as soon as it is possible. The rule regarding making an arrest dictates that no dwelling house can be entered before sunrise or after sunset.
The house should not be broken into, unless the judgment debtor is inside the house and preventing anyone from coming inside and also refusing to come out. If the amount that the judgment debtor needs to pay to the decree-holder is less than Rs. 2000, then detention cannot take place.
Upon the payment of the dectral amount as well as the costs of the arrest by the judgment debtor, he should be immediately released. Rule 39 of Order XXI speaks regarding the subsistence allowance. The decree-holder is required to pay a certain amount, as directed by the Court, for the maintenance of the judgment debtor in civil imprisonment, starting from when he is first arrested until he is presented before Court.
In the absence of the decree-holder paying the subsistence amount, the judgment debtor cannot be arrested. Section 57 is the deciding provision with regard to the monthly allowance. Else, the court may fix the amount.
It is also important to note that Section 56 provides exceptions. As per this section, women cannot be arrested for the execution of the decree. The reasoning behind this is to protect women. It is also important to note that minors and legal representatives of the deceased judgment debtor cannot be arrested for a money decree either. Other exceptions include judicial officers and members of legislative bodies.
Rule 40 dictates the multiple proceedings that need to be followed after the judgment debtor has been brought before the court.
IV. Attachment of Property
A decree can be executed through the application of the decree-holder by attachment and sale. The code provides the right to attach the property of the judgment debtor during execution proceedings, to the decree-holder.
Sections 60 to 64, and Rules 41 to 57 of Order 21 lay down the procedure to effect attachment. The CPC lists the properties which can be attached or sold, and also explains what can be done in a situation where the same property is attached in execution of decrees by multiple courts. The private alienation of property after the attachment is void, as per Section 64.
Section 60(1) states which properties are liable to attachment and which are exempt. Any property or portion of property over which the judgment debtor has the power to dispose for his benefit, is saleable regardless of whether it is movable or immovable. Land, houses or other buildings, goods, banknotes and cheques, bill of exchanges, promissory notes, government securities, bonds, debts, and shares in the corporation are a few examples of the property which can be attached.
As per Section 61, if the judgment debtor is an agriculturalist, then all the agriculturalist produce is his subject matter. It is essential to note that the amount of product that can be attached depends upon the decretal amount.
Section 63 states that if two courts have attached the same property through different decree, then the superior court will take priority over the subordinate court. Whether or not the further attachment of the property can be done, depends upon the value of the said property.
V. Appointment of receiver
Order XL of the CPC includes the multiple provisions regarding the appointment of the receiver. The receiver is an impartial, unbiased third party individual that has been appointed by the Court. The Court also has the authority to determine the amount for remuneration for the services provided by the receiver. The receiver has to –
- Manage and protect the property
- Take charge of collecting rents and profits off that property
- Manage the application and disposal of rents and profits
- Take care regarding the execution of documents
- The Court is free to provide more powers to the receiver, as per the court’s discretion.
The receiver has multiple duties and prerogatives, as mentioned in the Civil Procedure Code. They include –
- Furnishing any security that the Court may have asked for
- Submitting of accounts as per the directions of the Court, which includes the forms and time intervals at which submissions need to occur.
- The receiver is held accountable for any loss that may have occurred to the property, either by his willful default or gross negligence.
- He must pay the amount due to him, as per what the Court states.
In certain situations, the Court may even attach and sell the property of the receiver in order to compensate the loss that may have occurred because of his actions or neglect. The court can give the leftover amount to the receiver for his loss. If the property is land that pays revenue to the Government, the Court may even appoint the Collector as the receiver. This also applies if the land is one where the revenue has been assigned or redeemed.
VI. Partition
The decree in the suit for partition is managed through Rule 18 of the Order XX of the Civil Procedure Code. If the Court passes the decree for partition of any property and there is some issue or problem in the partition, then the Court may pass a preliminary decree which provides clarity regarding the different rights of the property, and demarcates them.
If the decree of partition has been passed about an estate that is assessed to the payment of revenue to the Government, then the partition is done by the Collector or another gazette officer that the Collector may have chosen.
VII. Cross decrees and cross-claims
The rules for execution in a situation of cross-decrees have been laid down through Rule 18 of the Order XXI of the CPC. The applications for them may be executed by the Court simultaneously when the applications are made to a Court through different suits, for paying the two amounts of money passed between the same parties or individuals.
For instance, if both suits have the same amount, then it can be executed by both. However, if the amounts vary, then it will be executed solely by the holder of the decree with the greater amount. However, that execution will occur only after the smaller amount is deducted for the other decree-holder. If the decree-holder in one of the suits is the judgment debtor in the second suit, these solutions cannot be applied.
Rule 19 of the Order XXI lays down the rules for the execution in situations of cross-claims. A cross-claim occurs when the application made to Court for the execution of a decree is under two different parties, which owe each other this money. In this case, the two parties are entitled to recover sums of money from each other. If the amount is equal, then it is easily settled. However, if the amounts are different, then only the judgment debtor, who owes the greater amount, faces execution of the decree.
Conclusion
Execution of a decree is the final step of implementation and is the result of litigation efforts of the decree-holder. The various modes of execution are ways in which the Court can compel the judgment debtor to perform or pay, as per required. The various modes of execution are crucial to enforce execution of a decree, or else justice cannot be provided to the decree-holder.
[1] PAFCO 2916 INC. and Ors. v. Kingfisher Airlines, AIR 2017 Kant 10
[2] Prem Lata Agarwal v. Lakshman Prasad Gupta & Ors., AIR 1970 SC 1525
