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How To Get A Decree In Civil Cases Executed – Litigation, Mediation & Arbitration


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How To Get A Decree In Civil Cases Executed


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There are several different types of orders of the court –
and you might get confused between the technicalities of what an
order, a decree, a judgment, etc. means and entails. A Decree is
the full and final observation/judgment that is passed by the Court
of Law after adjudicating the disputes between the parties. While
many people think that receiving a favourable Order/Judgement is
the final and conclusive step in the process of litigation, it may
be surprising for people that there lies a further step in the
litigation process which is “Execution”. Execution is the
process by which one can get the order and what it entails, quite
literally, executed. The process to initiate the process of
Execution takes only after the Court has pronounced its Judgement
and the Judgment has attained finality. 

For example: In a dispute between Party A and Party B, Party A
has filed a suit against Party B for recovery of an “X’
amount. The Court upon adjudicating the dispute comes to a final
conclusion that Party B owes money to Party A. It thus directs
Party B to pay the outstanding sums in a prescribed period to Party
A through its judgment.

Is this enough for Party A to receive the sum and for Party B to
pay? Well, it should be but in certain cases, it isn’t. In
cases where Parties don’t have the intention to pay up, even
the court’s order isn’t enough, and hence, execution of
such orders becomes incumbent.

In such situations, even after receiving a favourable Order, the
party receiving a favourable Order (decree holder) awaits for the
opposite party (judgment debtor) to take action. Post the final
conclusion of the matter, the party must not wait for the opposite
party to take steps and should proceed to file an application for
“Execution of Decree”.

So to say, the procedure for Execution of Decree begins when the
Judgement has attained finality and there is no Appeal or Revision
Application filed /pending before the Court of Law. 

There might be several situations such as an arbitration
proceeding or civil suits where execution of decree becomes
necessary since the decree-holder is unable to get requisite relief
from the debtor.

What is Execution? 

Execution is a process by which the Decree Holder “enforces
the decree”, passed by the Court of Law. Execution is the
final and conclusive step of civil litigation. While the term
“Execution” has not been defined under the Code of Civil
Procedure, 1908, Sections 36 to 74 and Order 21 of the Code of
Civil Procedure, 1908 deals with the Execution of Decree. By
initiating the process of Execution, the Decree Holder has
undertaken steps to realise the fruits of the Decree, so as to say
recover the sums due from the Judgement Debtor. 

Who can apply for Execution 

The process of execution is meant and provided for the purpose
of ensuring that an aggrieved party, that has received a favourable
order, is able to get what has been rightfully awarded as
theirs.

  • Decree Holder 

  • In the event Decree Holder is dead, Legal Representative of
    Decree Holder 

  • Any person claiming under the Decree Holder

Execution: How and When can a petition for execution be
filed 

In order to proceed for execution of a decree, the first and
foremost step that the Decree Holder has to do is to file a written
application before the Court which has passed the Decree or the
Court to which the Decree has been sent for Execution. Until and
unless there is a stay on the execution proceedings by the
Appellate Court, the Decree Holder can prefer the application for
execution of Decree anytime after the Decree is obtained. 

While the Decree Holder can file this application for execution
of Decree anytime after the Decree is passed, however, there is a
limitation of 12 years from the date it is passed within which the
Decree Holder or its Legal Representative can prefer such
application. 

Steps of Execution 

  1. Decree Holder has to file a written application seeking
    execution of decree with the court which has passed the Decree or
    the Court to which it is transferred. The Execution Application
    must contain some essential ingredients like suit number, amount to
    be recovered from the Judgment Debtor, interest computed on the
    outstanding amount, mode of execution, and any other assistance
    that is required; 

  2. Upon the application being accepted, a notice is issued on the
    Judgement Debtor in terms of Rule 22 of the Code of Civil
    Procedure, 1908. Under this notice, an opportunity is provided to
    the Judgement Debtor to appear before the Court executing the
    Decree; 

  3. In the event, even after the receipt of the notice, if the
    Judgement Debtor fails to appear before the Court, the Court at the
    request of the Decree Holder may proceed to issue a warrant for
    attachment of movable/immovable property of the Judgement Debtor or
    issue notice for the arrest of the Judgement Debtor;

  4. The Court Bailiff upon the warrant being issued will attach
    this warrant for attachment of property at the premises of the
    Judgement Debtor. Thereafter, a period of two weeks is given to the
    Judgement Debtor to come forward and pay the outstanding sums. If
    the Judgement Debtor fails to come forward, the bailiff in
    consonance of the Decree Holder will proceed to take steps for sale
    of the Immovable Property; 

  5. Once the sale is completed, the proceeds of the sale are given
    to the Decree Holder to recover its outstanding dues. Upon the
    completion of the entire process, the bailiff files a report with
    the Court executing the Decree.

Conclusion

Order 21 of the Code of Civil Procedure, 1908 gives an
exhaustive, elaborate and detailed process of the execution of the
decree and also explains the various modes of executing the decree
before the court of law. 

The above steps clearly clarify the procedure for Execution of
Decree. It is evidently clear from the above that the Execution is
the final and conclusive step of litigation and comes to end when
the Decree Holder recovers his/her outstanding sums. The
legislature with the intent to protect the interest of the Decree
Holder has encapsulated these provisions in the law, which is like
a silver living for any Decree Holder. 

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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