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HOW TO FILE AN EXECUTION PETITION

After any judgment is delivered the next thing is to enjoy the benefits of the decree. To enjoy the benefits of the said decree or order one has to file for execution. Under CPC, the lengthiest Order i.e. ORDER XXI deal with the procedure followed to EXECUTE a decree or order of the Court.

By: Anukriti Mathur

The word execution is not defined under the CPC or any other law in force. But in wider sense, the word execution means enforcement or giving effect to judgment on order of Court of Justice.1 An execution is completed when the judgment creditor or decree holder gets monetary relief or other things awarded to him in the decree. In other words, execution is the enforcement of a decree by a judicial process which enables the Decree Holder to realize the fruit of the decree passed by the Competent Court in his favor.2

Who can apply?

  • Decree holder
  • Legal representative of decree holder when decree holder dies
  • Any person claiming title under decree
  • Transferee of decree holder when decree is written and duly executed

Against whom is decree to be executed?

  • Judgment debtor
  • Legal representative of decree holder when decree holder dies
  • Any person claiming title under decree
  • Surety of Judgment debtor

Which Court to execute?

  • The court who passed the decree
  • The court where such decree is sent to execute
  • The court in whose jurisdiction the property is situated which will be used for execution.

Procedure Of Filing Application For Execution

STEP 1 FILLING OF APPLICATION

Where a decree need to be executed an application is placed before the executing court. The application must be in writing, signed and verified by the decree holder or any other person authorized. 

The application must be accompanied by name of parties, case number, date of decree, amount so decided and certified copy of decree.

STEP 2 EXAMINATION OF APPLICATION BY COURT

When a court receive an application, it is the duty of court to see that the application so filed comply with rules 11-14 of Order XXI

STEP 3 ADMISSION OF APPLICATION

The court may admit the application if it complies with the Rules 11-14 and other conditions required by law. If it lacks anything, the court may return the application and see into the defects.

STEP 4 HEARING OF APPLICATION

Under rules 105-106 of Order XXI, the court may hear the grievances related to execution .The convenient mode to execute is chosen.

STEP 5 ISSUANCE OF NOTICE TO EXECUTE

The notices are issued under Rule 22 to show cause if

  • Execution is filed after 2 years of actual decree
  • Execution is made against legal representatives
  • Execution is to be made in case of reciprocating territory
  • Execution is to be made against insolvent person
  • Execution is to be made against surety
  • Execution is to be made by assignee or transferee of decree holder
  • Execution is of money decree and arrest is to be made for the purpose.

STEP 6 DECIDING THE MODE

The decree holder is allowed to choose the mode to execute if no mode has been expressly put forth in the decree. The court has to choose from the following modes to execute:

  • Sale and attachment
  • Attachment without sale
  • Arrest and detention
  • Appointment of receiver
  • Any other available mode

STEP 7 STAY ON DECREE

If the judgment debtor shows reasonable ground to stay execution of decree under rule 26, the execution is stayed. The reasonable ground includes appeal to higher court or at times error on face of decree.

STEP 8 ISSUANCE OF ORDER TO EXECUTE THE DECREE

The court after due enquiry if is satisfied, it issue appropriate direction to take necessary action in order to execute the decree.

End note

  • Ghan Shyam Das Gupta And Anr vs Anant Kumar Sinha And Ors1991 AIR 2251, 1991 SCR Supl. (1) 119
  • Desh Bandhu Gupta vs N.L.Anand & Rajinder Singh 1994 SCC (1) 131, JT 1993 (5) 313

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