Order XXI Rule 28 CPC - Binding Orders of Decree Court and Appellate Court

Order XXI Rule 28 CPC - Statutory Text

Any order of the Court by which the decree was passed, or of such Court of appeal as aforesaid, in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution.

The above is the central statutory provision. It should be read together with the other execution rules and any applicable state or High Court amendments.

Meaning and Scope of Order 21 Rule 28

Decree: Under Section 2(2) CPC, a decree is the formal expression of an adjudication conclusively determining the rights of parties regarding all or any matters in controversy in the suit, subject to the statutory inclusions and exclusions.

Court which passed the decree: Section 37 CPC explains this expression for execution purposes, including specified situations involving appellate decrees or changes to the original court.

Transferee executing court: A court to which a decree has been sent for execution under Sections 38 and 39 CPC. Under Section 42, subject to the statutory qualifications, that court has the same powers in executing the decree as if it had passed it itself.

Binding order: An order concerning execution made by the court that passed the decree or the competent appellate court must be followed by the transferee executing court. Rule 28 does not, by itself, create a general stay of execution.

How Rule 28 Works in Execution Proceedings

1. A decree is transferred to another competent court for execution in accordance with the CPC.
2. The court that passed the decree, or a competent appellate court, issues an order relating to its execution.
3. The transferee executing court must give effect to that order, subject to its terms and any subsequent valid order.

For example, where a competent court orders a stay of execution and that order applies to the transferred execution proceeding, the executing court must comply with the stay. The existence and extent of the stay must be established from the actual order; filing an appeal does not automatically stay execution.

Related CPC Provisions

• Section 38: Execution by the court that passed the decree or the court to which it is sent.
• Section 39: Transfer of decree for execution, subject to the conditions stated in the section.
• Section 42: Powers of the court executing a transferred decree.
• Section 47: Questions relating to execution, discharge or satisfaction of the decree between the parties or their representatives.
• Order XXI Rule 26: Temporary stay by the court to which the decree was sent, on sufficient cause, to permit an application to the appropriate court; the rule also addresses restitution, discharge and security or conditions.
• Order XXI Rule 27: Restitution or discharge under Rule 26 does not prevent retaking in execution.
• Order XLI Rule 5: An appeal does not itself operate as a stay; a stay requires an appropriate judicial order.

Frequently Asked Questions

Does the transferee executing court have to follow the appellate court's order?

Yes. Where the appellate court's order relates to execution of the decree and falls within Rule 28, it binds the court to which the decree was sent for execution.

Can the executing court disregard a stay ordered by the competent court?

No. An applicable and operative stay order must be respected. Its precise scope and duration depend on its wording.

Does Rule 28 itself suspend execution?

No. It makes specified orders binding; it is not an automatic stay provision.

Official Legislative Reference

Read the India Code official legislation portal for the Code of Civil Procedure, 1908 (Act 5 of 1908), including the First Schedule containing Order XXI. Check applicable local amendments and current court directions before relying on the text.