Introduction – [1]
The litigation consists of three phases: initiating litigation, resolving litigation, and conducting litigation. The final stage of the litigation, which is the conduct of the litigation, is known as enforcement. Once the court has issued a decree or judgment, the person against whom the judgment has been given (judgment debtor) is required to put the decree into effect so that the holder of the decree can take advantage of the judgment. Enforcement requires compliance with an order or a judgment of a court. When the author of the decree receives the thing granted to him by sentence, decree, or order, the execution is complete.
Term ‘Enforcement’ in CPC
The term “enforcement” is not defined in the CPC. The term “enforcement” means the implementation or enforcement or implementation of an order or penalty of the court. In simple terms, “enforcement” means the process of enforcement or effectiveness of the decree or judgment of the court by forcing the debtor of the judgment to comply with the mandate of the decree or order and allowing the holder of the decree to reclaim the granted thing for Illustration: X files a lawsuit against Y for Rs 20,000 and receives a decree against him. Here, X would be referred to as the decree-holder, Y as the court debtor, and the amount of Rs 20,000 as the court debt. Y is required to pay Rs 20,000 to X as the decree is issued against him. Assuming Y refuses to pay the decree amount to X, X may reclaim that amount through judicial enforcement. The order is contained in Sections 36 through 74 (Substantive Law) and Order 21 of the Code establishing the Law of Procedure. Execution method according to CrPC.
Execution Proceedings Under CrPC [2]
In Ghan Shyam Das v. Anant Kumar Sinha[3], the Supreme Court, looked at the provisions of the Code relating to the execution of orders and decrees, noting that the Code contains detailed provisions covering all matters relating to the execution of a decree in all respects. The Court also found that numerous provisions of Order 21, where the provisions are unable to provide a person concerned with inadequate and timely redress, require a proper action to be brought before a civil court. The Court also stated that the judicial quality of the appeal under the Code of Civil Procedure is considered superior to other laws. Hence, judges are expected to act better as they oversee the administration of justice.
- Courts Which Can Execute Degrees
- Section 38 of the Code provides that a decree can be enforced by the court of the first instance or by the court to which it was sent for enforcement.
- Section 37 of the Code also defines the scope. The expression “court that issued a decree” so that the holder of a right can get back the fruits of the decree. The courts that fall under this term are as follows:
- The court of the first instance.
- The court issued the decree in the case of appeal decrees.
- The court is competent to assess the claim at the time of enforcement if the court of the first instance no longer exists.
- The court that had at the time of the execution. Competence to assess the claim when the court of the first instance is no longer empowered to execute the decree.
The court of the first instance has jurisdiction over any other court. In such cases, the court to whose jurisdiction the area was transferred is also competent, provided that the court was competent to rule on the claim at the time of enforcement.
Transfer of The Enforcement Decree
Section 39 provides that if a decree requests the first instance court to send the enforcement decree to another court, the court of the first instance may do the same for one of the following reasons: –
- if the debtor of the judgment carries on his business or lives within the jurisdiction of the named court or is personally profitable.
- if the judgment debtor’s property is not under the jurisdiction of the court of the first instance but is within the local limits of that court’s jurisdiction.
- if the decree orders the delivery or sale of real estate outside the jurisdiction of the court that issued it.
- if the court that issued the decree considers that the decree should be carried out by another court but leaves a written record of the reasons. for doing the same.
Section 39(2) provides that the court of the first instance can refer as Suo moto to a lower court with jurisdiction for enforcement.
It is also noted that when the enforcement of the decree is made against a person or property outside the territorial jurisdiction of the judgment.
In the Mahadeo Prasad Singh v Ram Lochan case, the Supreme Court ruled that the provisions of Section 39 are non-binding because the court has discretion in the matter, which it can exercise in court. The holder of the decree would have no acquired or material right to have the decree transferred to another court.
International Perspective – [4]
The Code sets out the procedure for enforcement. While a foreign judgment or decree is being enforced in India, it must be ensured that the judgment or decree issued on the matter and by a court that has jurisdiction is final.
What is a Foreign Judgment and Decree?
Section 2 (6) of the CPC defines a foreign judgment as to the judgment of a foreign court. Under Section 2 (5) of the CPC, a foreign court implies a court outside of India that is not established or maintained by the central government agency.
A foreign decree is defined in Note II to Section 44A of the CPC as a decree or judgment of the court ordering the payment of a sum of money. However, such amount of money is not payable about taxes or other charges of a similar nature, or about penalties or fines. It should not contain an award, even if such an award is enforceable as a decree or judgment.
Foreign Judgment or Decree Needs to be Conclusive
Foreign judgment or decree must be final. Section 13 of the CPC sets the test for the finality of a foreign judgment or decree stating that there is a foreign judgment conclusively in all cases, except in the following cases:
- if a competent court has not ruled.
- if it has not decided on the merits of the case.
- if it is based on a misconception of international law or a refusal to recognize Indian law when that law is applicable.
- When the procedures for obtaining judgment are contrary to natural justice.
- If the judgment was obtained through fraud.
- if you support an allegation based on a violation of applicable law in India.
Therefore, a foreign judgment or decree passes the seven tests mentioned above. Applied in India, such judgment or decree will not be considered conclusive if it fails any of these tests.
How is a Foreign Judgment or Decree Enforced?
There are two ways in which a foreign decree or judgment can be enforced in India:
- when the decree or judgment was issued by a court in a mutual territory.
- When a decree or penalty has been issued by a court.
Executing a Foreign Decree of a Mutual Territory in India in a Non-Mutual Territory:
Following Section 44A of the CPC, a decree may be issued by anyone. The superior court of a mutual territory is executed in India as approved by the district court. “Reciprocal Territory” means any territory or country outside of India that the central government has designated as an Alternative Territory by notice in the Official Gazette, and “Supreme Courts” concerning each Mutual Territory means the courts specified in such notice. Therefore, a judgment of a court of a mutual territory in India can be enforced as an Indian decree by filing a petition for enforcement. A certified copy of a decree issued by a higher court of a mutual territory must be submitted to a district court. Once done, the decree will be executed as if it had been approved by the Indian District Court and the provisions of execution set out in CPC Order 21 will apply to the decree. At the time of applying for enforcement, the certified original copy of the decree will be presented together with a certificate from the higher court showing the extent to which the decree has been complied with or amended.
Execution in case of decrees from non-reciprocating territories:
In cases where a court of a mutual territory has not issued a judgment or decree, it can only be enforced if a new claim to that foreign judgment is filed with a court in India that has jurisdiction to establish it. It was found in Marine Geotechnics LLC v Coast Marine Construction & Engineering Ltd. states that a court in a non-reciprocal foreign territory has issued a decree that can only be enforced if the holder of the decree has filed a new law suit foreign decree or on the original cause of the action or both. The lawsuit must be filed within three years from the date of the judgment or enactment. The person requesting enforcement must provide evidence that the foreign decree passes the section 13 exams. He also noted that Section 13 of the Code establishes the substantive law and Section 44A of the Code is an empowering provision and allows the holder of a decree to issue enforcement of a decree received by a court in a correspondence area. Principles of private international law, according to which a court may not enforce a foreign judgment of a competent court.
Enforcement of Indian Decrees in a Foreign Territory
Section 45 of the Code deals with the enforcement of decrees outside the territory of India. be able to send a decree for enforcement to a court outside India established by the central government agency. It must be ensured that the State has stated using a notice in the Official Journal that this section can be applied a simple reading of the previous provision reveals the following characteristics:
- The decree that must be enforced must come from an Indian court and be intended for enforcement in a foreign territory.
- The central government must have established the transfer court in this foreign area. The state government should have announced using a notice in the official gazette that this article would apply to the Court of Justice for Foreign Relations.
- The provision, therefore, prescribes the conditions for the enforcement of an Indian decree outside the country.
Therefore, in the absence of any of the conditions set out in Section 45, an Indian court has no power to send its decree for enforcement to a court not resident in India in the Code.
Execution of Decree at More Than One Place
In Prem Lata Agarwal against Lakshman Prasad Gupta &Ors, the Supreme Court stated that “the simultaneous enforcement process is possible in more than one place, but the exercise of power is limited and, in exceptional cases, allows reasonable time limits so that the debtors of the judgment do not get into trouble the fact that several Executions can be carried out simultaneously. “Therefore, concurrent execution procedures are not incompetent or illegal.
Also, Section 39 of the Code allows the simultaneous enforcement of a decree, as it provides for the enforcement of the adjustment either by the court of the first instance or by the court to which the enforcement is subject.
Procedure in Execution
Section 51
This section establishes the jurisdiction and power of the court to enforce a decree. The application for enforcement of the decree can be made orally or in writing. The court may execute the decree according to the method of enforcement requested by the owner of the decree or at its discretion. Way of executing the decree.
- By delivering an asset (movable or immovable) specifically for the sale of the property with or however the property.
- If the property is the responsibility of the court, then has the power to seize the property.
- By arrest and imprisonment. However, this mode should not be exercised without giving the judgment debtor a reasonable opportunity to explain why he should not be detained.
- Enforcement by Designating a Recipient
- If a method other than that specified in subsections (a) through (c) must be used in the execution of a decree, clause (e) comes into play.
Section 52
This section deals with the cases in which a decree is issued against the legal representative of the convicted debtor (deceased). As long as the property of the deceased remains in the hands of a legal representative, a decree against the property can be enforced if it involves the payment of monies from the property of the deceased and if the decree was issued against the party acting as the representative legal representative of the deceased person, the court will enforce enforcement in a situation where the property in the possession of the judgment debtor has passed into the hands of the legal representative and has not been properly applied by him the enforcement of the decree against him as if the decree were to the extent that it had been issued against him.
Section 53
The section states that when an asset is responsible for paying a debt of a deceased ancestor and is in the hands of a child and descendants, the property of the deceased who has passed into the hands of the child as the legal representative or other offspring are to be considered.
Section 54
When a decree on the division or separate possession of part of an undivided inheritance for payment of has been issued. The collector must divide the estate or the stake, but if the collector refuses to divide the property that pays the income, the civil court can do so. In this section, the applicant requesting state revenue sharing is not considered an essential condition.
Powers of the Transferor Court
As soon as a court that has issued a decree and transferred a claim to another competent court is no longer competent for that decree and can no longer enforce the decree. Then only the referring court can examine an application for enforcement.
Powers of the Transferee Court
The Transfer Court according to Order 21, Rule 8 of the Code, a decree may be issued by the district court to which it was sent or by the Subordinate court that has jurisdiction and to which the district court can refer you. Section 42 establishes the powers of the court of assignment and states that the court to which a decree has been sent for enforcement has the same powers in enforcing that decree as if the court had the power to sanction the persons who requested enforcement obstruct the decree and the court will exercise power as if the decree had been approved by it. Granting such powers to the assignee’s court means ensuring that the debtor of the judgment pays the money or assigns something else to the editors ordered in the edict. The court has the following powers: –
- To transmit the decree for enforcement to another court following Section 39.
- Enforcement of a decree against the legal representative of the debtor of the judgment deceased under Section 50 the seizure of a decree.
- Enforcement does not have the power to order enforcement at the request of the decree recipient or to give permission to execute a decree issued against an enterprise against any person other than that referred to in Rule 50 of Order XXI.
Powers of Executing Court
The section establishes the jurisdiction and authority of the court to enforce a decree. The application for enforcement of the decree can be made orally or in writing.
- The court can execute the decree according to the modality of Enforcement ordered by the holder of the decree or deemed appropriate by the court.
- The jurisdiction of the court then has the power to seize the property.
- By arrest and imprisonment. However, this mode should not be exercised without giving the judgment debtor a reasonable opportunity to explain why he should not be detained.
- Enforcement by appointment of a trustee. (c) must be used when executing a decree, then clause (e) comes into play.
Conclusion
Thus, it emerges that enforcement means the implementation or enforcement or implementation of an order or penalty of the court. The provisions in Order 21 cover different types of situations and, in addition to the Decree, provide effective remedies for judicial debtors accusing plaintiffs and third parties. The Code also deals with the rights of statutory debtors. The Code also includes a decree covering arrest, detention of the court debtor, transfer of property, seizure of property, sale, division, the appointment of a trustee and payment of money, etc. Thus, the provisions become effective or can relieve the person concerned.
References:
[1]Referred from iPleaders.
[2]Lexis Nexis
[3]Indian Kanoon – 1991 AIR 2251, 1991 SCR Supl. (1) 119
[4]Article from Google Scholar.
0 Comments