Updated: May 20, 2020
MEANING OF EXECUTION – Execution is the enforcement and order of the court by the process of the court ‘As matter of the fact, execution is the formal procedure prescribed by law whereby the party entitled to the benefit of a judgement may obtain the benefit.
Section 36 to 74 and order 21. In a suit, after the pronouncement of judgement and passing of decree in respect of the relief given by the court, the next steps in the execution of decree or order.
There are various mode of execution of decree provided in the code. A decree may be enforced as specified under section-51 of the Code of Civil Procedure-
1- By delivery of any property specifically decreed.
2- By attachment and sale or by sale without attachment of any property.
3- By arrest and detention in prison for such period not exceeding the periods specified in section 58 where arrest and detention is permissible under that section.
4- By appointing a receiver; or
5- In such other manner as the nature of the relief granted may require.
The Supreme court in Shyam Singh v/s collector,distt. Hamirpur 1933supp (1)SCC, observed:
‘Section 51 of the code gives an option to the creditor, of enforcing the decree either against the person or the property of the creditor, and nowhere it has been that execution against the person of the debtor shall not be allowed unless and until the decree-holder has exhausted his remedy against the property’.
However, the discretion is with the court to order simultaneous execution and that discretion must be exercised judicially. The court can refuse simultaneous execution by allowing the decree-holder to avail of only one mode of execution at a time.
MODES OF EXECUTION:
1- By delivery of property-Section-51(a)rules 31,35 and 36.
a-Specific movable property: The decree for any specific movable properties which do not include money and are possession of judgment debtor may be executed-
1-by seizure and delivery of property or
2-By detention of the judgement debtor, or
3-By attachment and sale of his property, or
4-by attachment and detention both.
The provision of Rule 31 of order.21 is not applicable for the execution of a decree for money or where the property is not in possession of the judgement debtor but is in the possession of a third party.
b-Immovable property- Rule 35 and 36 of order.21 provides the mode of executing decrees, for possession of immovable property. Where the decree is for immovable property in the possession of judgment debtor or in the possession of any person bound by the decree,it can be executed by removing the judgment debtor or any person or any person bound by the decree and by delivering possession thereof of the decree-holder.
2- Attachment and sale of property: Section 51(b)The court is empowered to order the execution of a decree by attachment and sale or by sale without attachment of any property and the sale of property without an attachment is merely an irregularity and such sale is not void or without jurisdiction and does not vitiate the sale.
Section 60 to 64 and rules 41 to 57 of order 21deal with the subject of attachment of property.
3- ARREST AND DETENTION: Section 51 (c) one mode of the execution of a decree is arrest and detention of a judgment debtor in the Civil prison. The provision stated in the proviso to section 51 are relevant in this regard and are as under-
An order of arrest and detention of judgement debtor in civil prison can be passed by the court while executing the decree for payment of money or for specific moveable property or for specific performance or for an injunction is against a corporation.
But the person like a women, judicial officers, the parties their pleader’s members of legislative Bodies, a judgement debtor etc, can not be arrested under certain circumstances.
Under section 135,135-A are also included in the above category.
An order of detention of judgement debtor in civil prison shall not be passed, in execution of a decree for the payment of money, where the total amount of such decree does not exceed two thousand rupees.
PERIOD OF DETENTION- According to section-58 (1), every person detained in the civil prison in execution of a decree shall be so detained, where the detention is for the payment of a sum of money-
I)- exceeding five thousand rupees –for a period not exceeding 3 months,and
2)- exceeding two thousand rupees, but not exceeding five thousand rupees-for a period not exceeding six weeks.
RELEASE OF PERSON DETAINED- A judgement debtor may also be released as specified under proviso to section 58,
1- On the payment of amount mentioned in the warrant, to the officer in charge of the civil prison, or
2- On the otherwise satisfaction(by an order of the court) of the decree, or
3- On the request to release of the person on whose application he has been so detained, or
4-on the omission to pay subsistence allowance, by the person, on whose application he has been so detained.
RE-ARREST- A judgment-debtor released under section 58 shall not be discharged from his debt but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison and if he has been released under section 59, he may be re-arrested but the detention period in civil prison shall not exceed the aggregate period specified in section-58.
4-BY APPOINTMENT OF RECEIVER- section 51(d) The provision relating to the execution by the appointment of a receiver is provided in order XXI, Rule 11(2)(J)(iv).
An execution of a decree by the appointment of a receiver is an equitable remedy which cannot be claimed as a right and is granted by the court in its discretion, and the same is an exception to the general rule that a decree-holder can choose the mode of execution and that the court has no power to refuse the mode chosen by him. The provision of section 51(d) should be read with the provisions of Order XL, Rule 1.