EXECUTION PETITION WITH REFERENCE TO ORDER 21 CPC

(Privy Council 1872)

The difficulties of a litigant in the India begin when he has obtained a decree.

THE RELEVANT PROVISIONS APPLICABLE TO THE EXECUTION OF DECREE/ORDERS.

Sections 36 to 74, order 21 CPC

DEFINITION

Execution:
Synonyms in English

Implementation, accomplishment, completion, attainment, enactment, enforcement, realization, fulfillment,

“the process of enforcing a decree or order against judgment debtor is called execution”

EXECUTION OF ORDERS. (SECTION 36)

“The provisions of this code relating to the execution of decrees hall, so far as they are applicable, be deemed to apply to the execution of orders”

The court has inherent powers to have its order carried out. Orders shall be executed in same manner as decrees.

SECTION 39. TRANSFER OF DECREE.

On application of the decree holder.

Conditions:-

Judgment debtor residing within the local limits of the jurisdiction of the other Court.
Having property in the local limits of jurisdiction of other Court.
Sale or delivery of immovable property as per decree situated with the local limits other Court.
Any other cogent reasons.

SUO MOTO TRANSFER. 39(2)

The court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction. This subsection permits the suo motu transfer of a decree to the subordinate Court of competent jurisdiction.

PRECEPTS (SECTION 46)

Attachment of property of judgment debtor for the period of 2 month by the transferee court.
Note: the difference between transfer of decree and precepts. In former case, the transferee court has all powers of the transferor court. In later case, transferee court can only attach the property of
judgment debtor for period of 2 months only unless extended by the transferor court.

SECTION 47

All the question arising out of execution proceedings shall be determinant by the executing court and not through a separate
suit.

LIMIT OF TIME FOR AN EXECUTION PETITION

How to resolve the conflict between section 48 of CPC and article 181 of the limitation act 1908.?
The first execution petition is governed by article 181 which provides 3 years as a period of limitation.
For follow up applications i.e first second third and so on applications are to be dealt with section 48 of the CPC which provides periods of limitation as 6
years.
To further elaborate this concept, section 48 prescribed period of 6 year as the outer limit, after expiry of which the court can’t entertain a fresh application for execution. Within 6 year of period of Limitation, any number of applications can be made for execution. (1992 SCMR 241, 2007 SCMR 983)

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POWERS OF COURT TO ENFORCE EXECUTION (SECTION 51)

Delivery of property specifically decreed.
Attachment and sale of the property.
Arrest and detention in prison.
Appointing a receiver.

CONDITIONS PRECEDENT TO THE ARREST AND DETENTION OF JUDGMENT DEBTOR IN PRISON.

Judgment debtor be given show cause notice that why he should not be committed to civil prison for reasons to be recorded in Writing.

And Court is satisfied that
The judgment debtor is frustrating the execution proceedings.
He is going to leave the local limits of the jurisdiction of the court.
Dishonest transfer of his property to frustrate the execution.
Refuse to pay the decretal amount despite having means and sources to pay the same.
An order of arrest without recording reasons would be without jurisdiction.

NATURE OF DECREES IN WHICH THE ARREST AND DETENTION OF JUDGMENT DEBTOR MAY BE ORDERE.

Decree for payment of money.
(Order 21 rule 30)
Decree for delivery of specific movable property.
(Order 21 rule 3)

EXCEPTIONS TO ARREST OF WOMEN

[a]Woman is exempted from arrest and detention in decree for money(section 56) and decree for restitution of conjugal rights( order 21, rules 32,33)

[b]Legal representatives of the judgment debtor cannot be arrested (section 50 and 52)

However a woman can be arrested in execution of decree for delivery of movable property. There is no general prohibition against the arrest and detention of a female judgment debtor.

MAXIMUM PERIOD OF DETENTION IN CIVIL PRISON

Not exceeding one year (section 55)

Detention and release of judgment debtor does not discharge the decretal debt, and though he cannot be arrested again in execution of a same decree, his property still remain liable for the satisfaction of the debt.

PROPERTY LIABLE TO ATTACHMENT AND SALE IN EXECUTION OF DECREE. (SECTION 60)

Salary of servant of state to the extent of first hundred rupees and one half of the remainder and salaries of military personnel are totally exempted. Military personnel to whom Pakistan army act 1952 and Pakistan Navy ordinance 1961 is applicable.

[Analogous provision in Cr.P.C, Section 549: Delivery to military authorities of persons liable to be tried by court martial]

RESISTANCE TO THE EXECUTION PROCEEDINGS AND CALLING FOR POLICE ASSISTANCE (SECTION 74)

The executing Court is empowered to direct the police to assist in the execution of the decree. The judgment debtors and others who resist execution of decree can be order to undergo simple imprisonment of UP TO period after 30 days. The executing Court
may direct the decree holder or the purchaser be put into possession of the property.

EXECUTION OF DECREE AGAINST GOVERNMENT (SECTION 82)

Court to specify a period within which the decree should be satisfied.
If the decree of the court remained unsatisfied for the period specified, court to report the case for the orders of the provincial governments.
Execution shall only be ordered to be issued if the decree has remained unsatisfied for a period of 3 months from the date of such report.

ENFORCEMENT OF LIABILITY OF SURETY (SECTION 145)

When the surety renders himself personally liable for:-

The performance of any decree
The restitution of any property taken in execution of a decree.
The payment of any money or any condition imposed upon any person under order of the court in any suit or any proceedings consequent thereto.
Execution process may be enforced by the arrest of the surety or the attachment of his property.

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