INTRODUCTION
Decree is an adjudication determining all the rights and responsibilities of the litigating parties with respect to the particular case. In order to enjoy the fruits of the litigation decided in favor of one of the litigating parties, due execution of the decree passed by the court is necessary. Decree enables the successful litigating party to exercise and execute the rights and obligations created in its favor. The Code of Civil Procedure (CPC) defines the entire framework of the decree. CPC has provided for various types of the decree, the procedure to obtain those decrees, and the means and ways of executing such decrees. This article aims at understanding the relevant provisions of the decree as provided under the code and what are the various types of decrees and how to execute them.
MEANING OF DECREE
Decree has been defined under section 2 of CPC which states that decree is the formal expression of adjudication by the court that determines the right and responsibility of the litigating parties with respect to all or any of the issues in a given suit.
ESSENTIALS OF DECREE
- Adjudication: For a decree, there must be adjudication in the court of law or judicial body. If the adjudication is administrative in nature or is not judicially determined, then it cannot be considered as a decree.[1]
- Adjudication done in a suit: For a decree, it is necessary that it must be passed while adjudicating the suit. Suit is defined as a civil procedure instituted on a plaint.
- Rights in Controversy: Decree must define the rights of the parties in a given matter. Such rights determined are substantive rights and not procedural ones.
- Conclusive Determination: Rights determined by the decree must be conclusive and final in nature.[2]
- Formal Expression: The adjudication of the suit must be expressed formally and in the manner as prescribed under the law.
TYPES OF DECREE
Preliminary Decree: Decree is said to be preliminary when further proceedings of the suit are yet to be completed. If court while adjudicating. It decides the rights and duties of the litigating parties with respect to any of the issues in the given matter. But it does not completely dispose of the suit, then the decree passed in such a scenario is ‘preliminary decree’. A preliminary decree can be pass in various suits proceedings. Such as suits for possession and mesne profits, suits for administration, suit relating to the dissolution of the partnership. In Narayanan v. Laxmi Narayan[3], it was ruled that list of suits where preliminary decree can be passed is not exhaustive and the court is free to pass preliminary decree even in those cases which are not expressly provided in the code.
There exists a conflict among various High Courts regarding the question that can more than one preliminary decree. It can be grant by the court in the same suit. Supreme Court in Phoolchand [4] held that there is nothing in the code which prevents the court from passing more than one preliminary decree and if required the court can grant more than one preliminary decree in the same suit.
Final Decree: When the court completely disposes of the suit and passes a decree defining rights of the litigating parties. Then in such a case a decree pass is called the final decree. Decree passed on the completion of suit settles all the issues and controversy in a given matter. Supreme Court in Shankar v Chandrakant [5], held that more than one final decree can be passed by the court in the same suit.
Partly Preliminary and Partly Final Decree: When a court passes decree, resolving one issue but leaves the rest for further proceedings. Then in such a case, a decree is Partly Preliminary and Partly Final. For an instance, in a suit regarding possession of the immovable property, where court passes a decree for possession of the property.ut regarding the issue of mense profit, passes a decree for further enquiry. Then the decree passed for possession of the property is final whereas decree pass for enquiry into mense profit is preliminary.
Deemed Decree: If a decree passed by the court does not satisfy the requirement of section 2(2) of the code. But still such decrees are often considered as decrees under the code then such a decree is called deemed decree. For example decree passed for determination of question under section 144 is a deemed decree.
Apart from these, the other types of decrees provided under CPC are consent decree (passed with the consent of both the parties for adjudication), Exparte Decree (decree passed in absence of one of the litigating parties).
EXECUTION OF A DECREE
When the litigating party successfully obtains the decree from the court. The next step is to get the decree executed or satisfied. Execution is nothing but the process of enforcing the judgment. Execution is the proceeding through which the decree-holder moves to the court to compel. The judgment debtor to comply with the mandate of the decree. Such proceeding commences when the party files an application for execution of the decree.
Section 51 of CPC provides for various modes of execution of the decree. After the decree-holder files an application for execution of the decree. The court may order to execute the decree: a) by delivery of any property specifically decreed; b) by attachment and sale or sale without attachment c) by arrest and detention in prison; d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require.
As per section 38 of CPC, only two courts are competent to execute such decree as desired by the decree-holder. They are:
a) court which passed the decree or
b) the court which received the order for the execution of the decree.
A decree holder can choose any particular mode of executing and enforcing a decree in his favor. Further it is not necessary to first move for the decree of sale of movable property; before moving for the decree of sale of immovable property. Proceedings for the decree of sale of movable and immovable property can be commence simultaneously.[6]
After the application for the enforcement of the decree has been file by the decree-holder. Then in as per section 47 of CPC, the court is oblige to determine certain questions before executing a decree such as all questions. That are arising between the parties to the suit in which decree pass. Questions relate to the satisfaction of the decree and then accordingly can use any of the four ways of executing decrees which are mention below:
I. EXECUTION OF DECREE THROUGH DELIVERY OF PROPERTY
Order 21, Rule 79 states that when the property sale is a movable property. It has been actually seize, then it shall be deliver to the purchaser. Order 21, Rule 35, and 36 govern the provisions of the decree regarding immovable property. A judgment debtor who is currently in possession of the property on the execution of decree through court must leave the possession of such immovable property and deliver the property to the decree-holder or the person mentioned in the decree.
In case of joint possession of the property, the delivery of possession shall take place after affixing the copy of the warrant in a visible place. Further when the person in possession of the property is not providing free access to the property. Then the court can take actions and pass any appropriate orders. It is necessary to put the person in possession of such property whose name is mention in the decree.
II. EXECUTION OF DECREE THROUGH SALE AND ATTACHMENT OF PROPERTY
Section 51 (b) talks about the sale and attachment of property. Court may order the execution of the decree by sale and attachment of property or sale without attachment of property. Order 21, Rule 41 allows the court to examine and assess the value of the property of the judgment debtor. In order to ensure that value of the property would be sufficient to satisfy the decree. Further section 60 of CPC provides for the list of properties that can be attach through executing the decree of sale and attachment. Some of the properties mentioned under this provision are: land, house, buildings, goods, shares, Government securities.
III. EXECUTION OF DECREE THROUGH ARREST AND DETENTION
Decree-holder may also execute the decree through court by arresting or detaining of the judgment debtor in a civil prison. Rule 37 of Order 21 states that where the decree-holder applies to the court for the execution of the decree for the payment of money by arresting or detaining the judgment debtor. Then judgment debtor must be give an opportunity to show cause why he should not be detain in civil prison and for this purpose court provides a notice to the judgment debtor to appear before the court and provide a show-cause notice. Court may also issue the warrant for arrest under Rule 38, Order 21.
For the execution of this decree, the decree-holder has to pay a certain sum (amount fix by the court) for the maintenance of judgment debtor and no arrest can be made if the maintenance amount has not been pay by decree-holder. Section 58 of CPC states that judgment debtor cannot be detain for a period exceeding 3 months. If the decree amount is one thousand rupees and for the decree amount exceeding five hundred rupees. But not one thousand, then the period of detention cannot exceed six weeks.
IV. EXECUTION OF DECREE THROUGH APPOINTMENT OF RECEIVER
Order 40, Rule 1 of CPC provides for various provisions related to the appointment of a receiver. Court must appoint an impartial Receiver before or after the decree for various purposes; which includes managing and protecting property, collecting rents and profits, executing documents or any other function which the court may think is necessary for executing the decree. A receiver appointed by the court owes various duties like furnishing security, submitting accounts; responsibility for any loss occurred due to the willful default or gross negligence of the receiver.
EXECUTION OF SPECIFIC DECREES
Court can pass various types of the decree in a suit and each decree can be executed by different means/modes as provided under CPC. Some of the most common decrees executed by the court in practice are illustrated below:
I. EXECUTION OF DECREE OF PARTITION
Order 20, Rule 18 of CPC provides for the decree in the suit for partition of property. When the court passes the decree for the partition of property. Either movable or immovable and there arises any difficulty in partition. Then in such a case, the court may pass preliminary decree and demarcating different rights over the property. If the decree of partition relates to the property which is assess to pay revenue to Government. Then the partition can be by the collector because revenue authorities are better place to deal with such matters.
II. EXECUTING CROSS DECREES AND CROSS-CLAIMS
Rule 18, Order 21 provides for rules related to execution in cross-decree cases. Cross decrees are those decrees where both the parties to the suit have decrees against each other. Court can execute the application for cross decree at the same time in various situations. Like when the decree involves the payment of equal money to the same parties. However if the decrees are of unequal amount pass between the same party. Then the court will execute only the decree holding the larger amount.
Similarly Rule 19 of Order 21 provides for the rules regarding the execution in cases of cross-claims. When the application is to the court for the execution of the decree. Under which both the parties are liable to pay a sum of money to each other. The decree of cross-claim can be executed when the amount is equal or if the amount is unequal. Then the court will execute the of the decree-holder who is suppose to receive a higher amount of claim.
III. EXECUTION OF DECREE OF PAYMENT OF MONEY
Rule 1 of order 21 of CPC provides for several methods of paying the money in order to satisfy the decree. Money can be pay by depositing it directly into the court which pass the order for execution of a decree or through money order or bank deposit. It can also be paid to the decree-holder outside the court but the judgment debtor has to abide by the rules provide under Rule 2, Order 21. Further the court can also direct any other method. Also decree of money can be executed through sale and attachment of property or through detention of judgment debtor in prison, as per rule 30 of Order 21.
IV. EXECUTION OF DECREE OF INJUNCTION
Rule 32 of Order 21 provides for the various methods to enforce the decree of injunction. It can be execute either through sale or attachment of property or even through the detention of judgment debtor in civil prison. Sometimes the court may use both the methods at the same time in order to enforce the decree of injunction if the person intentionally disobeys the decree.
V. EXECUTION OF DECREE OF RESTITUTION OF CONJUGAL RIGHTS
Enforcement of decree of restitution of conjugal rights is govern by Rule 32, Order 21 of CPC. If the decree is not obey, then the court may execute such a decree through the attachment of the property of the debtor. Further if the husband is judgment debtor and if he willfully disobeys this decree then the court may execute the decree by making the husband pay periodical payment to the decree-holder as per Rule 33 of Order 21. The court can further modify the rules regarding payment and can also suspend the payment, depending upon the facts of the case.
VI. EXECUTION OF DECREE OF A DOCUMENT
Rule 34, Order 21 provides for the decree of execution of a document. It states that the decree-holder has to prepare the draft of the document and present it before the court. The court will then present the draft to the judgment debtor and will fix the time within which he can raise any objections related to such a draft. After hearing the objections, the court shall pass the order to approve or alter the draft as the case may be. If some alternations have been order by the court, then decree-holder shall make necessary changes upon the proper stamp paper (if require by the law) and present the copy of it to the court. Court then may execute the document so delivered. The court may also register the document if such registration is necessary under the law.
VII. EXECUTION OF A DECREE RELATED TO ENDORSEMENT OF NEGOTIABLE INSTRUMENT
According to Rule 51, Order 21 of CPC, when the property is a negotiable instrument then such a negotiable instrument can be seize if it is not deposit in a court or it is not in the custody of a public officer and shall be kept in the custody of the court till further orders.
VIII. EXECUTION OF A DECREE RELATED TO ATTACHMENT OF RENT, MENSE PROFITS etc
As per rule 42, the property of the judgment debtor may be attached for the amount due if the decree is related to an enquiry regarding the mense profits, rents, or any other similar matter.
IX. EXECUTION OF A DECREE FOR ATTACHMENT OF PROPERTY
According to rule 53, Order 21, if the decree is related to the attachment of property then such a decree can be enforced by the court that passed an order for such decree. The court is also required to give notice to the judgment debtor against whom such a decree of attachment is pass.
EXECUTION OF A DECREE AGAINST VARIOUS JUDGMENT DEBTORS
There are various categories of judgment debtors against whom decrees may be pass such as Legal Representative, Corporation, or Partnership Firm. Thus CPC provides for the various modes through which decree can be execute against such judgment debtors.
I. EXECUTION OF A DECREE AGAINST SURETY
As per section 47, Surety is also consider as a party to the suit and according to section 145 of CPC, if any person has give surety for the performance of the decree or any part of it, then surety is liable in the same manner as he is personally liable and his attach property can also be sold in order to execute the decree.
II. EXECUTION OF A DECREE AGAINST LEGAL REPRESENTATIVE
Section 52 provides for the provision of decree against the legal representative. As per this section, if the decree is related to the payment of money then it can be executed by sale or attachment of any of such property of the deceased. However if no such property is available and legal representative fails to satisfy the court that the decree has been executed then the court may attach or sell the property of legal representative.
III. EXECUTION OF A DECREE AGAINST THE CORPORATION
If the decree of injunction or specific performance has been pass against the corporation then as per rule 32(2), Order 21, the court may enforce the decree by attaching the property of the corporation or detaining the important officers or directors of the corporation. According to Rule 76, Order 21, if the property to be sold is a share or negotiable instrument of the corporation then the court may appoint the broker to sell any negotiable instrument or share of the corporation.
IV. EXECUTION OF A DECREE AGAINST THE PARTNERSHIP FIRM
Rule 50, Order 21 governs the rules regarding the execution of a decree against the firm. If any decree is grant against the firm then the execution of decree may be grant against any property of partnership firm or against any person who is adjudge to be the partner of the firm or any person; who has been individually serve with the summons and who is also consider as a partner but such a person has fail to appear.
CONCLUSION
A decree is a formal decision of the court determining the rights of the litigating parties. The essential elements of decree include adjudication, adjudication done in a suit, determining the rights of the litigating parties in a given dispute and such determination of rights must be conclusive in nature. Decree, as provided under CPC, is mainly of three types: a) Preliminary decree b) Final Decree c) Partly Preliminary and Partly Final Decree.
Generally a litigating party may obtain various types of decrees against the judgment debtor through courts such as decree for injunction, decree for specific performance, or decree of restitution of conjugal rights. The judgment debtor may include a corporation, partnership firm, legal representative, Surety. After getting the decree from the court, it is necessary that the decree must be executed or satisfied so that the litigating party may reap the fruits of the litigation. CPC provides for various modes of executing the decree. The process of execution of decree must be carried out carefully in order to provide relief to the decree-holder.
Order 21 of the CPC provides for the execution of various decrees against different judgment debtors. Majorly the attachment and sale of the property are the two most common methods of executing the decree by the court. Further at the time of the execution of the decree, the judgment debtor is also given an opportunity to raise any grievance with respect to the execution of the decree. The court is required to abide by the rules and provisions provided under CPC regarding various types of decrees and various modes of executing them and then choosing the appropriate mode of execution of the decree.
References:
[1] Madan Naik v. Hansubala Devi AIR 1983 SC 676
[2] Narayan Chandra v. Pratirodh Sahini AIR 1991 Cal 53
[3] AIR 1953 All 713
[4] 1967 AIR 1470
[5] Shankar v. Chandrakant 1995 AIR 1211
[6] Padrauna Rajkrishna Sugar Works Ltd. v. Land Reforms Commissioner AIR 1969 SC 897
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