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Power of Courts to execute a decree under the Code of Civil Procedure, 1908
The enforcement of decree will enable the decree-holder to realize the benefits of the decree. There are several modes for the execution of the decree and the decree-holder has a right to choose the mode at the time of enforcement of the decree.[1]The procedural aspect for the execution of a decree is enumerated under Order 21, Rules 1 to 14 of CPC. It is the lengthiest order comprising of detailed provisions. Although the provisions might appear to be in favor of the decree-holder, the judgment debtor can as well postpone the execution of the decree. The burden lies on the Court of law to ensure that the provisions under Order 21 of CPC are not misused.
All issues arising out of execution must be settled are compulsory as per Section 47 of CPC. In instances where the judgment debtor files a separate suit inquiring about the basis of the decree which is under execution, then such a course of execution will be completely altered. This is one of the possibilities where the execution of decree can be procrastinated. The jurisprudential rule behind Order 21 is that it is the duty of the judgment debtor to fulfill all the conditions specified in the decree.[2]
The Civil Courts under Section 51 have the power to enforce the execution of the decree. There are different modes of execution like by the delivery of property that is precisely decreed, by attaching and selling or through the sale without attaching any kind of property, by arresting, by the appointment of a receiver. In such ways, the Court may grant relief. The decree of payment, execution by detention shall not be ordered by the Court except when the causes for being committed to prison is shown to the Court.[3]There is a high possibility that the judgment debtor may abscond the local limits of jurisdiction so as to obstruct or procrastinate the execution of the decree.
Only the decree-holder is entitled to make an application for execution.[4]Even in cases where the decree is passed on a compromise and as well grants allowances to a stranger, he does not have any right for the application of execution although he is entitled to bring in a regular suit. The decree-holder can pray for simultaneous execution for the attachment of property along with the arrest of judgment debtor[5]. This is allowed under Order XXI, Rule 30 of CPC.
During the execution of the decree, the Court has the power to sell the property that is attached and not one the ones that are not attached according to rule 30 and 64 of Order 21 respectively. A receiver can as well be appointed if the value of the property is adequate enough to bear such costs. If the receiver is necessary in order to build a conducive and harmonious relationship between the decree-holder and judgment debtor, then under such circumstances he can be appointed. The receiver also ensures discharging of a decree in a pleasing manner.
Ramaswami v. T.N.V. Kailas[6], the Court held that it is the duty of the Court executing the decree to give effect to the conditions mentioned in the decree. The Court also held that such a Court has no authority to exceed the terms. However, the Court has the power to analyze the decree and mentioned that it shall not make a new decree to the parties involved. In Karansing v. Chaman Pawan[7], the Supreme Court held that when a Court without jurisdiction passes a decree, then such a decree would be null. The validity of the same can be set up at any time; it is required to be enforced upon including the stage of execution.
In Topanmal Vs M/s Kundomal Gangaram [8], the Supreme Court held that a Court executing the decrees must construe it in the same manner as it stands. A Court cannot go past the decree and cannot as well make changes to the decree in any manner. The Court shall not issue a decree granting a particular relief that is not intended in the decree.
The powers of Courts to execute a decree have a wider scope. However, there are certain jurisdictional limitations while executing such a decree. The judicial interpretations also made it clear that the decree can be transferred to the Courts that is exercising jurisdiction over such matters.
[1]State of Rajasthan v. Rustamji Savkasha, AIR 1972 Guj 179
[2]Sita Ram Goel v. Sukhnandi Dayal and anr, AIR 1972 SC 1612
[3]Ins. by Act 21 of 1936, s. 2
[4]Dil Afzal v. Deputy Commissioner, Baharaich, 2 O.L.J. 570
