Execution means enforcement of decision given or decree or order passed by competent authority or Court. The person, in whose favour, decree is passed is called decree-holder and against whom it is passed, is called Judgment Debtor. Where the defendant judgment debtor fails to comply with the decision or the decree, Plaintiff / decree holder has to file execution petition to get enforcement thereof.
For enforcement of decree, the person in whose favour decree is passed has to file an application before the Court which passed the decree or to the officer appointed in this behalf. Application must be written, signed and verified by the applicant or by some other person acquainted with the facts of the case.
Execution application should contain the following particulars.
(a) Number of the Suit
(b) Names of Parties
(c) Date of Decree
(d) Details of appeal, if any, preferred from the decree
(e) Amount of payment, if any, made by the judgment debtor subsequent to the passing of the decree, or other adjustment if any made subsequent to the passing of the decree, towards the matters in controversy.
(f) Details of previous execution application, if any, with result
(g) Interest, if any, due upon the decree or other relief granted
(h) Amount of costs, if any, awarded
(i) Name of the Person against whom execution of decree is sought
(j) The mode in which assistance of the Court is required.
It may be mentioned here that the Court may require the applicant to produce certified copy of the decree.
Modes in which Assistance of Court is required
In the execution application, it is to be specified as to how the decree is sought to be executed. Decree is to explain, out of the following modes of execution:
(a) By delivery of any property specifically decreed; or
(b) By attachment, or by attachment and sale, or by the sale without attachment, of any property
In case of movable property of judgment debtor, not in possession of the judgment debtor, reasonable description of the property is to be given.
In case of attachment of immovable property of judgment debtor, description of the property sufficient for its identification is required to be given.
In case of interest or share of judgment debtor in any such property, it is to be specified as to what is the extent of his share or interest.
(c) By arrest and detention in prison of any person
In such a situation, decree holder has to state in the application or in the form of affidavit as to why arrest of the judgment debtor is required.
(d) By the appointment or receiver
(e) Otherwise, as the nature of the relief granted.
Court may, in its discretion, refuse execution of the decree at the same time against the person and property of the judgment debtor.
If there is any defect in the Execution Application
If there is any defect in the execution application, Court would allow the petitioner to rectify the same within stipulated time. As per order XXI Rule 17, in case the petitioner fails to do the needful in this regard, Court shall reject the application.
Notice of Execution Application
Court is required to issue notice of the execution application to the judgment debtor where an application for execution is made:
(a) More than two years after the date of passing of the decree; or
(b) Against the legal representative of a party to the decree; or
(c) For execution of a decree filed under the provisions of Section 44A; or
(d) Against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent.
By way of such a notice, judgment debtor is required to show cause as to why the decree should not be executed against him.
However, no such notice is required to be issued:
(a) Where application is made within 2 years from the date of last order against the judgment debtor, made on any previous application; or
(b) In consequence of the application being made against the legal representative of the judgment debtor, if upon a previous execution application for execution against the judgment debtor has ordered execution to issue against him;
(c) Where the Court considers that issuance of such notice could cause unreasonable delay or would defeat the ends of justice, court may forth with issue process for execution of the decree.
As per Order XXI, Rule 6 where it execution is not possible by that very court or same is required to be executed by some other court, the court which passed the decree has to send the same to the other court for execution for the decree.
Where decree is to be sent for execution to other Court, the Court which passed the decree is required to send the decree directly to the other court.
In case of money decree, where the judgment debtor is available within the precincts of the Court at the time of passing of the decree, decree holder may make oral application to the Court which passes the decree, that the decree be immediately executed by judgment debtor by arrest of judgment debtor. Court may allow such oral application where judgment debtor is present within the precincts of the court and even prior to the preparation of warrant.
Where the judgment debtor to whom notice is issued does not appear or does not show cause to satisfaction of the court as to why the decree should not be executed, the Court shall order the decree to be execute. Therefore appropriate steps should be taken for appearance before the court or for reply or objection if any ant that too on or before the given date. In case one files reply or objection to the execution application, Court is required to consider the same before proceeding further.
Stay of Execution
Whenever such decree has been sent for execution to other Court, the person against whom decree has been passed can file application before such other court for stay of execution. Such court which execution has been sent may stay execution to enable the judgment debtor to apply to the court by which the decree was passed or on the ground that he is to file appeal.
In such a situation, when application for stay of execution has been filed, in case any property of the judgment debtor has been seized by this other court (to which decree was sent for execution), such court can order for restitution of property so seized.