EXECUTION OF DECREES: PROCESSES AND CHALLENGES
Himanshu Gupta,
CPJ College Of Higher Studies and School of Law
INTRODUCTION
A decree is the final decision provided by the court, which is given after the judgment. A decree provides relief to the party(s), but sometimes only a decision is not enough in cases where the party against which the decree is passed refuses to follow the said order. In this situation, the concept of execution of decree comes into play. The other party, i.e., the decree holder, can file an application in the competent court to execute the decree.
Execution of decree refers to the implementation of the final order, i.e., the decree passed by the competent court. There are two parties involved in this: one is the party in whose favour the decree is passed, i.e., the decree holder, and the other is the party against which the decree is passed, i.e., the judgment debtor.
There are different types of decrees that can be passed by court, such as money decrees, final decrees, preliminary decrees, ex-parte decrees, partly final, partly preliminary, etc. There are various methods and processes provided under Order 21 of the Code of Civil Procedure, 1908. Execution of a decree can be a hectic task depending upon the situation.
TYPES OF DECREE
Preliminary Decree
A preliminary decree is passed by the court when certain rights of the parties are to be determined on an urgent basis while the suit is still left to be disposed of. It comes before the final decree is passed. Preliminary decrees can be passed in various suits like partition/property suits, administration suits, mortgage suits, deciding mesne profits, etc.
Final Decree
A final decree is the last adjudication order passed by the court after the pronouncement of judgment. A final decree disposes of the suit completely and determines the rights and reliefs of both parties. All the issues raised during the trial are also resolved in the final decree. A final decree can be said to be the end of litigation between the parties if no appeal lies against that decree.
Example: A final decree passed in a property matter may divide the disputed property into two equal parts or reward the whole property to one party and vice versa.
Partly Final and Partly Preliminary Decree
Partly preliminary and partly final decree is passed by the court when some of the issues are finally determined and some are still left to be decided. This decree is both preliminary and final in nature. This helps the parties to determine their rights when the suit is still pending in court for further adjudication.
Ex-Parte Decree
An ex-parte decree is passed by the court in circumstances where the plaintiff filed a suit and the defendant fails to appear before the court to defend himself. In this situation, the court has the authority to pass an ex-parte decree in favour of the plaintiff, which ensures the timely delivery of justice to the plaintiff. Once the ex-parte decree is passed by the court, the defendant can appear before the court and ask the court to set aside the said decree by providing a sufficient reason for the same.
Decree on Compromise (Consent Decree)
A consent decree is passed by the court on the mutual agreement of both parties. In this type of decree, the terms and conditions of the decree are decided by the parties, and the court firmly accepts it. This decree is binding on both parties and cannot be challenged in court later on the grounds of error by the parties.
Declaratory Decree
A declaratory decree is passed by the court where only the rights of parties are to be declared and no consequent reliefs are provided to the parties. It is passed to determine the rights of the parties and prevent future litigation between them related to these rights.
Decree of Dismissal
A dismissal decree is passed by the court when a suit is dismissed by the court. A suit can be dismissed by the court for various reasons like lack of jurisdiction, failure to prove the case against the defendant, non-prosecution, etc. There are two types of dismissal done by the court:
Dismissal for Default
Dismissal on Merits
PROCESS OF EXECUTION OF DECREE
The process of execution of a decree is provided under Order 21 of the Code of Civil Procedure, 1908. The process is as follows:
Obtaining a Certified Copy of the Decree
For executing the decree, the first step that the decree holder needs to take is getting a certified copy of the decree passed by the court. This certified copy will help the decree holder prove that such a decree was passed by the court in his favour.
Application for Execution
After obtaining the certified copy of the decree, the decree holder needs to file an application for execution of the said decree within twelve years from the passing of the said decree, according to Section 48 of the Code of Civil Procedure, 1908. The application for execution of a decree can only be filed in the court that passed the decree or the court in which the decree is sent to be executed.
Notice to the Judgement Debtor
After reviewing the application filed by the decree holder, if the court finds the application to be suitable, it will issue notice to the judgment debtor to come before the court and ask to execute the said decree.
Methods of Execution
There are several methods provided under Order 21 of the Code of Civil Procedure to execute the decree if the judgment debtor refuses to abide by the decree. Some of the methods are:
Appointment of Receiver
The court may appoint to receiver u/s 51 of the Code of Civil Procedure, 1908. The receiver will be responsible for acquiring possession of the property owned by the judgment debtor and be used for executing the decree. The receiver is also responsible for collecting the income generated from the property, which will be used to satisfy the decree.
Attachment and Sale of Property
The court can order the attachment of property owned by the judgment debtor and later on sell that property for the purpose of execution of a decree. The property can be both movable and immovable in nature.
Arrest and Detention
The court may order the arrest of the judgment debtor if he fails to abide by the decree. The period of detention depends upon the amount of the decree. The judgment debtor is detained in a civil prison.
Garnishment
The court has the authority to garnish the bank accounts of the judgment debtor in case of non-compliance. This method is mostly used to execute money decrees.
Compliance Monitoring
The court passes an execution order and ensures its compliance through its appointed officers and keeps a check on the progress.
CHALLENGES IN EXECUTION OF DECREE
There are several challenges faced by the decree holder while executing a decree due to various reasons, such as:
Procedural Defects
There is a proper format prescribed under the Code of Civil Procedure according to which the application for execution should be filed in court. There can be procedural defects like providing insufficient information about the debtor’s asset, the application filed is not proper, details in the application are missing, etc., which can lead to a delay in the execution of the decree.
Non-compliance by the Debtor
The judgment debtor may not comply with the decree as the decree is passed against him. Due to his dissatisfaction, he may not be interested in complying with the decree and try to avoid the execution using different techniques. This will lead to a delay in the execution of the decree.
Complexity of Decree
One of the major challenges that lies with the execution of a decree is its complexity, as some decrees, depending upon the circumstances, become so complex that their execution automatically becomes more difficult, especially in property disputes and disputes where many parties are involved.
Asset Concealment
The judgment debtor, to avoid or delay the execution proceedings, may try to hide the property or transfer the property to someone at an unreasonable price. This will lead to an unnecessary delay in the execution proceedings.
Jurisdictional Challenges
The court passing the decree may face jurisdictional challenges in its execution if the property of the debtor lies outside the jurisdiction of the court. If this situation persists, then the court needs to transfer the decree for execution to the court with proper jurisdiction. This process takes additional time and procedure to be followed.
Interim Reliefs and Appeals
The judgment debtor may file an appeal against the decree or may even succeed in obtaining interim relief against the decree. This is done by the judgment debtor to delay the execution proceedings, as according to the ruling of the Supreme Court of India, execution proceedings cannot take place if there is an appeal against the decree.
Legal Delays
There can be legal delays done on behalf of the court as the courts are overburdened, which leads to delays in proceedings.
Notice Defects
Executing court issues notice to the debtor for execution of decree, but there can be defects in notice, which may lead to delay in the execution proceedings. The notice may be served properly, or the debtor may avoid the notice intentionally.
LANDMARK CASES
Harnandrai Badridas vs. Debidutt Bhagwati Prasad & Ors.
The Supreme Court ruled that during executing the decree, the court cannot go behind the decree, i.e., the court at that point in time cannot question its validity. The executing court is responsible for carrying out all the terms as mentioned in the decree unless they are set aside in a proper proceeding.
Dhurandhar Prasad Singh vs. Jai Prakash University
The Supreme Court ruled that if a decree is passed by the court against which an appeal lies with the other party under the provisions of the code of civil procedure, then in such a case the court cannot commence execution proceedings until that appeal is decided.
Topanmal Chhotamal vs. M/s Kundomal Gangaram
The Supreme Court held that the executing court must limit itself from executing the decree and cannot entertain any challenge to its correctness or legality, except for issues related to jurisdiction or if the decree is obtained by fraud. This case established the principle that the decree’s validity is generally outside the scope of the executing court’s review.
Rajenderan vs. K. Rajeshwari
The Supreme Court held that the executing court has the authority to use its inherent powers in cases where the court is responsible for delivering possession of property in accordance with the decree, where in the original decree the process to execute the original decree is not mentioned.
Bhanwar Lal vs. Satyanarain & Anr.
The Supreme Court held that in cases where the decree holder is having difficulty executing the decree, the executing court must look into such matters on priority and take the required action under Order 21 Rule 97 of the Code of Civil Procedure.
CONCLUSION
Getting a decree in your favour takes a lot of effort, time, and money, but its execution is an equally difficult task to undertake. There should be reforms done in the judicial system to make the process of execution of decrees more effective and efficient.
For execution of a decree, the party needs to have a well-framed legal strategy and a precise understanding of the legal framework. Order XXI of the Code of Civil Procedure can be stated as a code itself as it provides both method and procedure of execution of decree. It also provides the opportunity for the judgment debtor to raise objections to the execution of the decree.
Execution of a decree is said to be done at the end of litigation, but in reality, executing that decree gives rise to a whole new litigation sometimes. There should be a balance between the rights of both parties to avoid unnecessary delay in the execution of the decree.
REFERENCES
·https://districts.ecourts.gov.in/sites/default/files/Family%20CourtSklm.pdf