Understanding the Execution Process and Stay of Execution in Indian Law, Slides of Civil procedure

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APPLICATION OF EXECUTION,

MODE OF EXECUTION AND

STAY OF EXECUTION

INTRODUCTION

 Implementation of litigation is also known as execution. Decree means operation or conclusiveness of judgment. A decree will be executed by the court which has passed the judgment. In exceptional circumstances, the judgment will be implemented by other court which is having competency in that regard.  Execution enables the decree-holder to recover the fruits of the judgment

Application for Execution of decree

 All proceedings in Execution commence with the filing of an application for Execution.  (^) Following persons may file an application for Execution: 1. Decree- holder 2. Legal representative of the decree holder 

3. Representative of a person claiming under the decree-holder 4. Transferee of the decree-holder, in some cases

ORDER 21 RULE 10

 (^) Application for execution.—Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer if any appointed in this behalf. RULE 11: (1) Oral application: Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court. Oral application can be made in case of money decree.

Sec 46 Precepts

 Upon the application of the decree-holder the Court which passed the decree may. whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept. When decree holder realise that the judgment debtor is going to dispose the property go for precepts by the court to attach the property of JD

Court which may execute a decree

Sec 37 Definition of the court which passed a decree Primarily the Court which passed the decree or order is the executing Court. If order or decree is appealed against and the appellate Court passes a decree or order, even then the original Court which passed the decree or order continues to be treated as Court which passed decree. The Court which has passed the decree or order ceased to exist or ceased to have jurisdiction to execute the decree already passed, then the Court which will be having a jurisdiction upon that subject matter, when application of execution is made will be the competent Court to execute the decree. In Section 38 a decree may be executed either by the Court who passed it or by the Court to which it is sent for execution.

 No order of detention of the judgment-debtor shall be made where the decree amount does not exceed Rs.2000. Where the judgment-debtor pays the decree amount and costs of arrest to the officer, he should be released once A decree for money cannot be executed by arrest and detention where the judgment- debtor is a woman, or a minor, or a legal representative of a deceased judgment-debtor

Sec 39 of cpc The Court which passed a decree may, on the application of the decree holder, send it for execution to another Court. If the person against whom the decree is passed actually and voluntarily resides or carries on business. If such person has not property within the local limits of the jurisdiction of the Court which passed the decree. If the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it. If the Court which passed the decree considers for any other reason

ORDER 21 RULE 30 and 31 Decree for payment of money  R 30 -Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.  R 31- Decree for specific movable property By seizure or detention or attachment or sale of property. 3 month rule

RULE 32 Decree for specific performance for restitution of conjugal rights, or for an injunction Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both 6 month rule

 (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession

Sec 55 Arrest and Detention

One of the modes of executing a decree is arrest and detention of the judgment-debtor in civil imprisonment. Where the decree is for payment of money, it can be executed by arrest and detention of the judgment-debtor. Following points are very important regarding arrest and detention: A judgment-debtor may be arrested at any time on any day in execution of a decree. For the purpose of making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling house is in the occupancy of the judgment-debtor and he refuses or prevent access thereto

 Rule 29 Stay of execution pending suit between decree-holder and judgment-debtors: Where a suit is pending in any Court against the holder of a decree of such Court or of a decree which is being executed by such Court on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided