What is a Decree..?: Definition & execution of a decree
What is a Decree..?: Definition & execution of a decree
The decree means conclusiveness or operation of a judgement. Implementation or execution of a decree is done when the parties filing application in this regard.
In simple terms execution is a process of enforcement of a judgement. The process of execution is complete when the decree holder gets the money or any sort of relief awarded to him by court in a judgement.
There are many ways to execute a decree. According to Order XXI Rule 10, Decree Holder may file an application before a jurisdictional civil court, if he desires to execute it.
All you need to know…….
Section 38 of CPC, 1908 says that the decree may be executed either by the court which passed it or by court to which it has sent for the execution. Section 39-45 provides for the transfer of the execution.
Execution can’t be done in any other court except the court which passed the decree or to which it has sent for the execution
The decree holder has no vested or substantive right to get the decree transferred to the other court. Under section 51 of the code empowers the power of court to enforce execution. Under order 21 and rule 10 a decree holder, Legal representative of decree holder if decree holder is dead and Representative of decree holder can apply for the decree of the execution.
MODES OF EXECUTION
There are many modes through the execution of a decree can be obtained.
Arrest and detention: As a result of the decree, the judgment debtor is required to pay the amount to decree holder failing which, under the S.51(c) a judgment debtor may be arrested at any time on the day during the execution of a decree following which he must be presented before the court.
Exception: arrest and detention cannot be executed in case if the judgment debtor is a woman or legal representative of the deceased judgment debtor.
Attachment of property: The code recognizes the right of decree holder to attach the property of judgment debtor and sale of property. Section 60-64 and Rule 41-57 of Order 21 of Code of Civil Procedure, 1908 deals with the provisions of attachment of the property.
Precept: S. 46 of the CPC, 1908 defines that this is a command, an order, a writ or a warrant. It is a order or direction given by the court which is entitled to execute a decree to attach any property belonging to the judgment debtor. It is actually the interim attachment of the property which lies outside the jurisdiction of the court which passed the order. This order for attachment is valid for a period of only two months.
Garnishee Order: Order 21 Rule 46 of the CPC, 1908 defines it as a process of by which decree holder seeks money or property from the judgment debtor in the hands of third party i.e, judgment debtor’s debtor.
Example: A owes 100 to B and B owes 100 to C. The court may pass to order which requires A to pay C instead of B, since B owes the said amount to C. It is an order passed to court by ordering garnishee to pay amount to the judgement debtor because the latter is indebted to garniture.
Period of limitation
The limitation period for the execution of a decree is 12 years from the date of decree.
The period of limitation for execution of a decree for mandatory injunction is 3 years from the date of decree.
General difficulties faced during the execution of decree……
Generally, in cases where the judgment debtor’s property is given for the decree holder during the execution of the decree, the judgment debtor somehow tries to obstruct the possession of the decree holder.
This obstruction includes filing of appeals, writ petitions etc.. With the only intent of delay of execution proceedings thereby obstructing the enjoyment of the decree holder.
Provision which deals with such obstruction and delay
This was discussed in the Order 21 Rule 97-106 of the Civil Procedure Code, 1908 which talks about the process of execution of decree in the delay and obstruction.
According to this rule, in case of any delay or obstruction during the execution of decree, then the decree holder may make an application to the court complaining about such resistance/ obstruction.
On such application being made, the court may direct the applicant to put in the possession of the property or otherwise any other order as per the circumsatnces may deem fit.
Supreme Court Judgment
Since the process takes lot of time and effort, the Supreme Court has come up with a recent judgment has amended the provisions of execution with an intention to eradicate the delay and obstruction during the execution of decree.
In the case of Rahul S. Shah V. Jinendra Kumar Gandhi and ors. (Civil no. 1659-1660 of 2021). The Supreme Court has given certain directions to all other courts to make the execution better and easier without any delay. The Supreme Court also directed the High Courts to update all rules relating to the enforcement of execution of decree within 1 year.
Article Courtesy : D. RUPA