CPC, 1908: Modes of Execution

Reading time : 10 minutes

INTRODUCTION

The expression “execution” has not been characterized in the code. The articulation “execution” signifies authorization or usage or giving any impact to the judgment passed by the court of justice. It signifies the cycle for offering impact to the judgment of the court. It is the requirement of announcements and requests by the cycle of the court, to empower the decree-holder to understand the products of the declaration. The execution is finished when the judgment-debtor or decree-holder gets cash or other thing granted to him by the judgment.

For e.g., A record a suit against B for Rs 40,000 and gets an announcement against him. Here A is the decree-holder. B is the judgment-debtor, and the measure of Rs 40,000 is the judgment-obligation or the decretal sum. Since the declaration is passed against B, he will undoubtedly pay Rs 10,000 to A. Assume disregarding the declaration, B will not compensate the decretal sum to A, and A can recuperate the said sum from B by executing the announcement through the legal cycle.

CHOICE OF MODE OF EXECUTION

There is multiple choice of mode of execution as per Section 51 of The Code of Civil Procedure, 1908 (hereinafter CPC). This section lays down the court may on the application of the decree-holder subject to such conditions and limitation as may be prescribed the court may on the application of the decree-holder order execution of the decree.

According to Section 51, the mode of execution includes-

  • By delivering of any property specifically decreed. Property may be movable or immovable.
  • By arrest and detention
  • By sale of the property with or without the attachment of the property.
  • By appointing a receiver

CRITICAL ANALYSIS OF VARIOUS MODE OF EXECUTION

  • ARREST AND DETENTION

This is one of the various modes of executing a decree which deals under Section 55 of CPC. If the decree is for payment of money, it can be executed through the detention of the judgement-debtor. A judgement-debtor can be arrested at any point in time at any day during the execution of a decree. When the arrest happens, the judgement-debtor needs to be brought before the court, as soon as possible. The rule regarding making an arrest dictates that no residence house can be entered before dawn or after dusk. The house should not be broken unless the judgement-debtor is inside the house and avoiding anyone from coming inside and also refusing to come out.

If the amount is that the judgement-debtor need to pay to the decree-holder is less than Rs. 2000, then detention cannot take place. If the decree amount is more than Rs. 2000 but less than Rs. 5000, the period of detention shall not exceed 6 weeks. If the decree amount is more than Rs. 5000, the period of detention shall not exceed 3 months.

Section 56 of CPC provides an exception to this. As per section 56 of CPC, women cannot be arrested for the execution of the decree. Minors or a legal representative of the deceased judgment-debtor cannot be arrested for a money decree either. Other exceptions include judicial officers and members of legislative bodies.  

Also read:hindu marraige act

  • ATTACHMENT OF PROPERTY

Section 60 to 64 of CPC and Rules 41 to 57 of Order 21 deals with the subject of attachment of property. The decree can be executed through the application of the decree-holder by attachment and sale. It also provides the right to attach the property of the judgement-debtor to the decree-holder during execution proceedings. As per Section 64, the private alienation of property after the attachment is void.

Section 60(1) deals with which properties are liable to attachment and which are forgiven. Any property or part of property over which the judgement-debtor can arrange for his advantage is saleable regardless of whether it is movable or immovable. Land, goods, promissory notes, bonds, debts, banknotes & cheques, government securities are the few examples of the property which can be attached.

Section 61 deals where the judgement-debtor is an agriculturist and the quantum of attachment of agricultural product depends upon the quantum of the decretal amount.
Section 63 deals with the events of two courts have connected a similar property through various decree, then the higher court will take need over the subordinate court. Regardless of whether the further attachment of the property should be possible, relies on the valuation of the said property.

  • APPOINTMENT OF THE RECEIVER

Order 11 of the CPC includes the various provisions regarding the appointment of the receiver. The receiver should be an impartial person appointed by the court. The court will also fix appropriate compensation for the services provided by the receiver. The receiver has to manage to-

  • Protect the property
  • Take the rents and profits of the property
  • Disposal of rents and profits
  • Take care concerning the execution of reports
  • Use the power which is provided by the court, as per the court’s discretion

 There are various duties of the receiver, which provided in the CPC. They comprise-

  • Providing any security requested by the court
  • Submitting of accounts, which includes the forms and time intervals at which submissions need to occur as per the directions of the court
  • The receiver is held accountable for any loss that has occurred to the property, either by his wilful default or gross negligence
  • The receiver has to pay the amount which due to him, as the court states

The court can likewise some of the time attach and sell the property of the receiver to improve the misfortune happened as a result of him and can give the excess add up to the receiver in the wake of repaying the misfortune. The Collector can likewise be selected as a receiver when the property is land that is paying income to the Government or the land, in which the income has been allotted or reclaimed, the court can choose a Collector as the receiver with their consent.

  • PARTITION

Rule 18 of the Order 20 of the CPC deals with the decree in the suit for partition of property. At the point when the court passes the declaration for a segment of any mobile or ardent property and if there is any trouble in a segment the court can pass a primer decree which divides the various privileges of the property. At the point when the decree of partition identifies with the domain surveyed to the instalment of income to the Government, the partition can be made by the Collector or whatever other gazette official who is subordinate to the Collector and the gazette official must be delegated by the actual Collector.

  • CROSS-DECREES AND CROSS-CLAIMS

The rules concerning the execution in cases of cross-decree mentioned in Rule 18 of Order 21 of the CPC. The application of cross decree can be executed by the court simultaneously when the applicants are made to the court in discrete suits for the instalment of two amounts of cash passed between similar parties in different circumstances, like, if the two sums are equivalent, at the point the fulfilment will be entered upon both decrees. There are likewise circumstances on the off chance that the two aggregates are inconsistent; at the point, it very well may be executed simply by the holder of the decree for the bigger total and for the sum which stays in the wake of deducting the lesser sum. This can’t be applied when the decree-holder in one of the suits is the judgement-debtor person in the other and each party records similar character in both the suits. E.g., if A holds a decree against B for Rs. 10,000. B holds a decree against A for the instalment of Rs. 10,000 all things considered then the decree can be executed simultaneously and can be fulfilled as the sum is equivalent.

The rules concerning the execution in cases of cross-claims mentioned in Rule 19 of Order 21 of the CPC. It is considered as a cross-claims when the application is made to the court for the execution of a decree under which two parties are qualified to recover amounts of cash from one another. There can be fulfilled when the sum is equivalent or of the sum is inconsistent executed might be just completed with the individual qualified for the higher claim. 

CONCLUSION

Order 21 of the CPC contains complex and thorough procedure for execution of decree and order, deal with the distinctive sort of circumstances and give possible cures not exclusively to the decree-holder and judgment-debtor yet additionally to the dissenters and third parties. Execution of decree is the last advance of usage and is the consequence of prosecution endeavors of the decree-holder. There are different strategies for the execution of a declaration under the CPC.  It is an obligation of the court to survey current realities of every single case and give proper help to the decree-holder immediately. The court needs to follow the procedure which is given compelled of the CPC prior to executing a decree and picking the proper mode of execution.

REFERENCES:

Author: Akshita, Chanakya National Law University, Patna.

Editor: Kanishka VaishEditor, LexLife India.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s