Execution of Judgement and Decree (Order 21)

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing or enforcing or giving effect to an order or a  judgment passed by the court of justice. In simple words “execution” means the process of enforcing or giving effect to the decree or judgment of the court, by compelling the judgment-debtor to carry out the mandate of the decree or order and enable the decree-holder to recover the thing granted to him by judgment.

Illustration:

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be called the decree-holder,  Y is the judgment-debtor, and the amount of Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him. Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by execution through the judicial process. The principles governing the execution of a decree or order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code which provides for procedural law.  

Execution proceedings under CPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of the code relating to the execution of orders and decree and stated that the Code contains elaborate provisions which deal with all questions regarding executability of a decree in all aspects.

The Court further observed that numerous provisions of Order 21 take care of various situations providing effective remedies to judgment-debtors, decree-holders and claimant objectors. In the cases, where provisions are not capable of giving relief inadequate measures and appropriate time, to an aggrieved party, then filing a regular suit in the civil court is the solution. The Court further explained that the judicial quality of the remedy under Civil Procedure Code is considered to be superior as compared to other statutes therefore, the judges are expected to do better as they are entrusted with the administration of justice

Courts which can execute decrees

Section 38 of the Code states that a decree can be executed either by the Court of the first instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which passed a decree” with the object of enabling a decree-holder to recover the fruits of the decree. The courts which fall within the said expression are as follows:

The court of the first instance;

The court which actually passed the decree in case of appellate decrees;

The court which has jurisdiction to try the suit at the time of execution, if the court of first instance ceased to exist; The court which at the time of execution had jurisdiction to try the suit, if the court of first instance has ceased to have jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to execute a decree even in the case of any area being transferred from the jurisdiction of the court of first instance to the jurisdiction of any other court. In such cases, the court to the jurisdiction of which such area has been transferred will also have jurisdiction to execute the decree, provided that the said court had jurisdiction to try the said suit when the application for execution was made.

Transfer of decree for execution

Section 39 provides that when a decree-holder makes an application to the court of the first instance to send the decree for execution to another court, the court of first instance may do the same if any of the following grounds exist:

If the judgment-debtor carries on business, or resides or personally works for gain, within the jurisdiction of such Court; if the property of judgment-debtor does not come under the jurisdiction of the Court of the first instance but it comes under the local limits of the jurisdiction of such Court;

If the decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court which passed the same; If the Court which had passed the decree considers that the decree should be executed by another court, but it shall record the reasons in writing for doing the same.

Section 39(2) states that the Court of the first instance may suo motu send it for execution to any subordinate Court of competent jurisdiction.

The Section further states that if the execution of the decree is against a person or property outside the territorial jurisdiction of the court passing the decree, then such Court has no power to execute the decree.

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of Section 39 are not mandatory because the court will have discretion in the matter which can be exercised by it, judicially. The decree-holder would not have any vested or substantive right to get the decree transferred to another court.

Execution of foreign decrees in Pakistan

The Code lays down the procedure for execution of foreign judgments and decrees in Pakistan. While enforcing a foreign judgment or decree in Pakistan it should be ensured that the judgment or decree is a conclusive one, given on the merits of the case and by a court having competent jurisdiction.

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As per section 2(5) of CPC, a foreign court implies a court which is situated outside Pakistan and which is not established or continued by the authority of the Central Government.

A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or judgment of such court and which directs that a sum of money is payable. However, such sum of money shall not be a sum payable in respect of taxes or other charges of a like nature or in respect of any penalty or fine. It should not include an arbitral award, even if such an award is enforceable as a decree or judgment.

Foreign judgment or decree needs to be conclusive

A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays down the test for conclusiveness of a foreign judgment or decree, which says that a foreign judgment would be conclusive in all cases except the following:

• When a court of competent jurisdiction has not pronounced it;
• When it has not been pronounced on the merits of the case;
• When it has been based on a wrong view of international law or a refusal to recognize the law of Pakistan in cases in which such law is applicable;
• When the proceedings carried out while obtaining the judgment are opposed to natural justice; When such judgment has been obtained by fraud;
• When it sustains a claim that had been based on a breach of any law in force in Pakistan.

Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise, such foreign judgment or decree cannot be enforced in Pakistan as such judgment or decree will not be regarded as conclusive if it fails any of these tests.

Mode of enforcement of a foreign judgment or decree

Two ways in which a decree or foreign judgment can be enforced in Pakistan are as follows:

Where the decree or judgment has been given by a court in a reciprocating territory;

Where decree or judgment has been given by a court in a non-reciprocating territory.

Execution of foreign decree of a reciprocating territory in Pakistan

According to Section 44A of the CPC, a decree of any superior court of a reciprocating territory shall be executed in Pakistan as that has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside Pakistan which the Central Government has declared to be a reciprocating territory, by notification in the Official Gazette, and “superior courts“, with reference to any reciprocating territory, means such courts that would be specified in the said notification.

Therefore, a judgment which has been pronounced by a court of a reciprocating territory can be enforced in Pakistan as an Pakistann decree by filing an execution application. A certified copy of a decree of any superior court of a reciprocating territory should be filed in a District Court, once this is done, the decree shall be executed as if it had been passed by the District Court of Pakistan and the provisions governing execution which are laid down in Order 21 of the CPC will be applicable to the decree.

While filing the execution application the original certified copy of the decree shall be filed along with a certificate from the superior court stating the extent to which the decree has been satisfied or adjusted.

Execution in case of decrees from non-reciprocating territories

In the cases where a judgment or decree has not been pronounced by a court of a reciprocating territory, it can be executed only when a fresh suit on that foreign judgment is filed in a court of  Pakistan which has competent jurisdiction to entertain the same.

The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine Construction & Engineering Ltd., observed that when a decree has been pronounced by a court of a non-reciprocating foreign territory, it can not be executed unless a fresh suit has been filed by the decree-holder on that foreign decree or on the original cause of action, or both. The suit must be filed within a period of three years from the date of the judgment or decree. The person seeking execution shall show that the foreign decree passes the tests of Section 13.

The court further observed that Section 13 of the Code provides substantive law and Section 44A of the Code is an enabling provision and it enables a decree-holder to put a decree obtained from a court of a reciprocating territory into execution. Section 13 clearly expresses the principles of private international law, that a court will not enforce a foreign judgment of a competent court.

Execution of Pakistann decrees in a foreign territory

Section 45 of the Code is related to the execution of decrees outside the territory of Pakistan. It states that a Court has the power to send a decree for execution to a Court outside Pakistan which has been established by the Central Government’s authority. It should be ensured that the State has, by notification in the Official Gazette, declared the said section can apply to such Court. A plain reading of the aforesaid  provision yields the following features:

The decree which has to be executed should be of an Pakistann Court and it should be for execution in a foreign territory.

The Central Government should have established the transferee court in such foreign territory. The State Government should have declared by notification in the Official Gazette that this section will apply to the said foreign Court.

The provision, therefore, prescribes the prerequisite conditions for the execution of an Pakistann decree outside the country. Therefore, in the absence of either of the aforesaid conditions in Section 45, an Pakistann Court has no jurisdiction to send its decree for execution to a Court not situated in Pakistan.

Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from executing a decree simultaneously at more than one place against the property of the judgment-debtor.

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court observed that “simultaneous execution proceeding in more than one place is possible but the power shall be used in a restricted manner, in exceptional cases by imposing proper terms so that the judgment debtors do not face any hardship because of several executions are being allowed to be proceeded with at the same time.” Therefore, simultaneous execution proceedings are not without jurisdiction or illegal.

Moreover, as per Section 39 of the Code, simultaneous execution of a decree is permissive in nature as it provides for execution of a decree either by the Court of first instance or by the Court to which it is sent for execution.

Procedure in execution

Section 51 to 54 of the Code talks about the procedure in execution.

Section 51

The section states the jurisdiction and power of the court in executing a decree. An application for execution of the decree can either be oral or written. The court may execute decree as per the mode of implementation prayed by the decree-holder or as the court deems fit.

Mode of executing decree

• By delivery of any property (movable or immovable) specifically decreed.
• By sale of the property with or without the attachment of the property. If the property is situated within the jurisdiction of the court then it has the power to attach the property.
• By arrest and detention. However, this mode should not be exercised without giving a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be imprisoned.

Execution by appointing a receiver

If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in the execution of a decree then clause(e) comes into play.

Section 52

This section deals with the cases where the decree is passed against the legal representative of the judgment-debtor (deceased). So long as the property of the deceased remains in the hands of a legal representative, a decree can be executed against the property, if it is for the payment of money out of the property of the deceased and if the decree has been passed against the party as the legal representative of the deceased person.

In a situation where the property which is in the possession of the judgement-debtor came in the hands of the legal representative and it has not been duly applied by him, the court will enforce the execution of the decree against him as if the decree was to the extent passed against him personally.

Section 53

The Section states that when a property is liable for payment of a debt of a deceased ancestor and it is in the hands of a son and descendant, then the property will be deemed to be of the deceased which has as his legal representative come into the hands of the son or other descendants.

Section 54

When a decree has been passed for partition or for the separate possession of a share of an undivided estate for the payment of revenue to the government, this section comes into play. The partition of the estate or share needs to be made by the collector,  but if the collector denies making the partition of the revenue paying property, then the civil court can do so. To attract the provisions of this section, the plaintiff asking for the division of government revenue is not deemed as an essential condition.

Powers of the transferor court

Once a court which has passed a decree and transferred it to another court of competent jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute the decree. Then, only the transferee court can entertain an application for execution.

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has been sent for execution to another district, it may be executed by either the district court to which it was sent or by a subordinate court which has competent jurisdiction, to which the district court may refer it.

Section 42 provides for the powers of the transferee court and states that the Court to which a decree has been sent for execution shall have the same powers in execution of such decree as if it had been passed by itself.

The Court has the power to punish the persons who cause obstructions in the execution of the decree and the power shall be exercised by the court as if the decree has been passed by it. The main object of giving such powers to the transferee court is to ensure that the judgment-debtor pays the money or gives such other thing to the decree-holder as would be directed by the decree.

The Court will have the following powers, namely:—

• To send the decree for execution to another Court under section 39.
• To enforce execution of a decree against the legal representative of the deceased judgment-debtor under section 50.
• To order attachment of a decree.

However, the court to which a decree is sent for execution will not have the power to order execution at the instance of the transferee of the decree and the power to grant leave to execute a decree passed against a firm against any person, other than a person referred to in Rule 50 of Order XXI.

Powers of executing court

The section states the jurisdiction and power of the court in executing a decree. An application for execution of the decree can either be oral or written. The court may execute decree as per the mode of implementation prayed by the decree-holder or as the court deems fit.

Mode of executing a decree

By delivery of any property (movable or immovable) specifically decreed.

By sale of the property with or without the attachment of the property. If the property is situated within the jurisdiction of the court then it has the power to attach the property.

By arrest and detention. However, this mode should not be exercised without giving a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be imprisoned.

Execution by appointing a receiver.

If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in the execution of a decree then clause(e) comes into play.