The Essence Of 'Civil Litigation' – Part II

In the previous part, the author highlighted the position of 'Civil Lawyering' or 'Civil Litigation', and had stressed on the importance of some 'bedrock principles'. The first part touched upon the broad-stages of a civil suit, and concluded with an open-ended note which forms the subject-matter of this discussion. So, picking up from there, this piece is all about the manner in which a decree or an order may be executed by a person 'in whose favour a decree has been passed or an order capable of execution has been made'. Sub-section 3 of Section 2 of the Code defines this person as the decree-holder (DH), and the person against whom a decree has been passed (or such order has been made) is called the judgment-debtor (JD).Let us answer the 'what', 'where' and 'how' of the Execution of a Decree or an Order (hereafter as "execution")'What' is execution?'Execution is the enforcement of a decree (or of an order) by a judicial process'. All civil litigation would be futile and no ends of justice would ever be achieved if this chunk of provisions (Sections 36 to 74 and Order XXI & Rules 1 to 106) dealing with execution were to remain absent from the Code. Strangely though, the importance of such a process is seldom emphasized.The Code provides for sufficient duration between a decree and its execution. However, the law only favours those who do not sleep over their rights. For this reason, one look into Articles 136 & 133 of the Limitation Act, 1963 in order to ascertain the time within which an execution petition (EP) must be filed.'Where' to initiate proceedings?The primary question is the manner in which the DH goes about execution; Sections 39 to 45 of the Code are the key to kick-start the execution proceedings. A short analysis is provided here:A decree may be executed by the court which passed the decree; in case of appellate decrees – by the court of first instance or by the court which would have jurisdiction to try the suit in which the decree was passed – in case the court of first instance ceases to exist.The court of first instance may transfer the decree on an application by the DH, or by its own motion (if there exist grounds to transfer the same). The transferor court is to send a copy of the decree; certificate of non-satisfaction/part-satisfaction of decree; and a copy of the order of execution, if any. Note: a little shift here – the transferee court has the powers of execution. However, it is mandatory that the transferee court has pecuniary jurisdiction to entertain the EP – in other words, the transferor court (though passing the decree) has no jurisdiction if the person/property is outside its jurisdiction.Next comes Rule 11 of Order XXI, which states that every application for execution shall be made in writing; except when the decree is for the payment of money. The following are the kinds of applications, and the contents they require: an application for arrest of JD must contain the grounds; for attachment of immovable property, it must have particulars capable to identify the property; and for attachment of movable property (not in JD's possession), it must contain an accurate description.Further, it is within the ambits of Rule 14: where an application is 'made for attachment of land registered' in the Collector's office, the applicant may be asked to produce a certified extract of the same.Let me now, highlight the procedure followed by the courts on receiving an application of execution:(i) Admission, Rule 17 – this is a check-post to see whether the application conforms to Rules 11 to 14; the court may allow the defects to be remedied.(ii) Hearing, Rules 105 & 106 – this time is to fix a day for hearing (and allowing objections); an adjournment if applicant does not appear; and ex-parte hearing (and passing of an order) if the opposite party doesn't appear.Objections to this ex-parte order may be allowed, subject to satisfying the court of sufficient grounds of non-appearance.(iii) Notice, Rule 22 – this rule provides for giving a show-cause notice to the party against whom execution is sought. Such is the need (especially) in case EP is against a legal representative, made after two/more years of the decree, against the court of a reciprocating territory, the assignee/receiver, for arrest & detention of the JD, against a surety, or against a transferee/assignee.(iv) Procedure hereafter – if the notice is not complied with, process may be issued (unless there is cause to the contrary).'How' is the relief sought?The DH seeks for assistance from the court in order to get an actual relief; and not just be happy with a paper decree. He may choose the mode of execution, but the court has discretion. Thus, it only makes sense for us to understand each mode of execution separately:Below is an overview of the modes of execution; it is not exhaustive.The substantive provision dealing with the modes of execution is Section 51 of the...

The Essence Of 'Civil Litigation' – Part II

Meghna Nimbekar

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