In civil matters, the separation of judgment from enforcement is not a colonial peculiarity. The idea is much older and can be traced at least to Roman law. In classical Roman procedure, a judgment, called the iudicatum, did not enforce itself. Instead, it created a new obligation known as the obligatio iudicati, treated as a debt arising from the judgment itself. If the debtor did not pay within thirty days, the successful party had to bring a fresh proceeding known as the actio iudicati, or action upon the judgment. Enforcement was therefore a second proceeding, not an automatic consequence of the decree. In its earliest form it was directed against the person rather than property. Under the Twelve Tables, Rome's oldest code, the unpaid creditor could bring the debtor before the magistrate and lay hands upon him in a formal act called manus iniectio, the laying on of hands. If no one came forward as surety, the creditor could take the debtor away and keep him in bondage, his name and debt proclaimed on three successive market days. Only later did the law turn from the body to property, allowing the creditor to sell the debtor's whole estate in a proceeding called bonorum venditio, the sale of goods, softened afterwards into bonorum distractio, under which only so much property as the debt required was sold.
Behind evolution of civil laws across centuries lay a single idea that survived. A civil judgment declared rights between private parties, but the burden of making those rights real remained with the successful party. The State provided courts, officers and legal process, but it did not act on its own initiative. The common law adopted the same structure without altering it in substance, and it was this structure that was carried into India by the colonial codes of 1859, 1877 and 1882 and finally by the Code of Civil Procedure of 1908, whose Order XXI remains the longest Order in the Code. The system examined in this essay therefore rests upon a very old assumption that enforcement is the responsibility of the successful litigant and not the State's own act. That assumption was inherited, expanded into countless procedural rules, and allowed to survive.
There is no satisfying jurisprudential account of why civil law should continue to be built this way. Search the codes and the commentaries, and one finds the rule stated everywhere but its foundations examined only rarely. The nearest explanation lies in the old distinction Blackstone drew in his Commentaries on the Laws of England between private wrongs and public wrongs. Private wrongs, or civil injuries, are infringements of the rights that belong to individuals as individuals; public wrongs, or crimes, are breaches of duties owed to the community as a whole. To take his own categories, the detaining from a man of a field to which the law has given him a right is a civil injury and not a crime, for only the right of an individual is concerned. Upon this distinction the design is usually rationalised. A crime offends the community, so the State prosecutes and enforces in its own name. A civil wrong injures an individual, so the law leaves the assertion of the right to that individual. But this does not explain why, after the court has heard the dispute, declared the right and given judgment, the same party must begin again to enforce what he has already won. At that stage what is in question is no longer the private right of the litigant alone, but the authority of the court and the credibility of the State's own adjudication.
The State does not, in truth, stand aside. It enforces; but in the criminal law its hand falls upon the convict at once, as part of the same act that condemns him, while in the civil law it falls upon the decree only at the end of a second and separate ordeal, which the winner must institute and pursue afresh. The comparison begins only after the court has finally adjudicated the parties' rights, and is not to be understood as importing into the institution or trial of a civil suit the coercive incidents of the criminal law. The question, then, is not whether the State will act, but why its enforcement, immediate once guilt is found, is made to wait once a right is declared. Nor is the State a stranger to the land in dispute. It records the title and takes its fee for doing so; it taxes the holding; it may acquire the whole of it compulsorily when public purpose demands. When the very deed it has registered is called in question, the State is no outsider to that quarrel but the author of the record in dispute, and might be expected to come forward and say whether its own registration stands, rather than leave two citizens to litigate for years over the worth of a document it has itself issued.
And the stake in that question is not small. For the man who has lost his only land, the matter the law calls private is nothing of the sort. It is the loss of his home, his livelihood and his security, a catastrophe which, in a poor country, may end in destitution, migration, or violence. There is a further reason, and it is one the State cannot easily disown. Its duty is not only to punish crime after it is done but to prevent it before it arises. Land is among the foremost causes of violent crime in the country; disputes over possession and title turn, again and again, into assault, riot and murder. When the State declares a right and then leaves its enforcement to a proceeding that may run for years, it does not withdraw into neutrality. It leaves the parties to settle by force what the law has declined to make real, and so converts a dispute it has already decided into the very crime it will later be bound to prosecute. Prompt enforcement of a civil decree is, in this light, not merely relief to the litigant. It is the prevention of crime, and the prevention of crime is the State's own first responsibility.
What has been argued in principle, the working of Order XXI confirms in practice. Its rules do not merely regulate enforcement; they reopen it. Execution has become a second suit in all but name, in which the judgment-debtor, though he has already lost, is furnished afresh with objections, applications, appeals and revisions, and may contest the enforcement as though the decree had settled nothing. The decree-holder who imagined the litigation over discovers that it has only changed its name. The consequences are not a matter of speculation; the Supreme Court has recorded them in language sharper than any critic's. In Satyawati v. Rajinder Singh, [(2013) 9 SCC 491], the Court was confronted with a decree that had become final in January 1996 and remained unexecuted seventeen years later. It recalled the observation of the Privy Council, made in General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, [(1871-72) 14 Moore's Indian Appeals 605] that the difficulties of a litigant in India begin when he has obtained a decree, and was constrained to add that even in 2013 the position had not improved, and that the decree-holder still faced the same difficulty as before. That a court should quote, across a hundred and forty years, a colonial-era lament and find it still exact is itself the measure of the failure.
Nor is the delay a misfortune falling equally on both sides. It is a weapon, and it lies always in the same hand. The party who has lost, and who holds the land or the money, gains by every year that enforcement is postponed; the party who has won loses by the same measure. As early as 1928, in Kuer Jang Bahadur v. Bank of Upper India Ltd., [AIR 1928 PC 162] the Privy Council was warning that the process of the court and the law of procedure must not be so abused by judgment-debtors as to make the courts of law themselves the instruments by which decree-holders are deprived of what is rightfully theirs. The warning has gone unheeded for a century. The result is a system in which delay does not merely postpone justice but reverses it, delivering to the party the court has ruled against the very enjoyment the court awarded to the other. A decree, in such a system, is not the end of the contest. It is the signal for its second, longer, and more unequal half.
It would be unjust to lay the fault on the courts, for they have laboured to prevent exactly this. The Supreme Court has held, again and again, that execution is not a retrial. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman [it ruled that an executing court cannot go behind the decree, but must take it as it stands and give it effect, the single exception, drawn in Sunder Dass v. Ram Prakash, being a decree that is a nullity for want of jurisdiction. In M.C. Mahajan v Indian Oil Corporation it warned that execution must not be treated as fresh litigation, and in Rahul S. Shah v. Jinendra Kumar Gandhi it held that the objection provisions of the Code cannot be turned into an occasion for a second trial. It has fixed the rules of Order XXI, one after another, to the same end: that the successful party must not be made to prove his case over again. The intention of the law, as the courts have declared it, is not in doubt.
The failure lies deeper, and it is not a failure of the rules but of the structure that surrounds them. When a court of first instance decides a point of execution, the losing party is seldom bound by that decision for long. He may seek its review in the same court, carry it in appeal, invoke revision, move the High Court in its writ jurisdiction, and travel at last to the Supreme Court by special leave, and he may do this not once but at many stages, upon many of the interlocutory questions that execution throws up. Each avenue is legitimate in isolation; taken together, they furnish an inexhaustible supply of delay. A settled rule is no protection when the application of the rule to the case can itself be re-agitated through many successive forums. The decree-holder does not lose because the law is unsettled; he loses because the law, however settled, can be made to travel the whole length of the judicial system a second time before it is obeyed.
The remedy, if one is to be sought, does not lie in inventing new law but in reconsidering the default under which the law already operates. One possible approach is this. Once a decree becomes final, enforcement could follow by act of the State, rather than upon a fresh proceeding that the successful party must institute and pursue. The rules governing execution could be reduced to a small and closed set concerned only with the manner in which a decree is carried into effect, retaining those necessary to protect legitimate rights while removing those whose principal effect is to prolong litigation. The burden could rest not upon the successful party but upon the party resisting enforcement, so that execution proceeds unless the objector establishes why the objection could not have been raised in the suit itself.
A further institutional possibility is that the State itself be joined as a party to every civil proceeding. Already the keeper of the records by which many civil rights are proved, it is often best placed to answer questions concerning those records. Whether the dispute concerns a title it has registered, a debt to be realised from assets it records, or a declaration that one person is the son of another resting upon entries maintained by it, the parties are presently left to prove or disprove the State's own records while the authority responsible for them remains outside the litigation. State's presence would enable such questions to be resolved directly and, being already before the court, permit it to give effect to the decree once it becomes final, so that enforcement is not a second contest begun afresh but the concluding stage of the first.
To question this inherited arrangement, and to reshape it to Indian conditions, is not to import a foreign remedy but to reason from Indian circumstances towards an Indian answer. Nor does it demand some sweeping reconstruction of the law. Sometimes change begins with no more than a question. We have been handed a bamboo pole and told to dance upon it, and we labour only at the dancing, falling and rising and adjusting our steps, each trying to perform a little better than the last, but never asking whether the pole was ever a fit place to dance. That question is itself the beginning of a jurisprudence. It is what a swadeshi jurisprudence, in its truest sense, must mean: not the rejection of what we have inherited, but the willingness to ask whether an inherited arrangement still serves the people now bound by it. When the Chief Justice of India, speaking at Queen Mary University of London in June 2026, called for a jurisprudence comparative in inspiration but Indian in character, it is this he pointed towards, and the execution of civil decrees, that untouched colonial chapter, is where the call may be answered.
Views are personal.