Execution petition

What is an Execution Petition?

An execution petition is the legal mechanism through which a court decree becomes actionable. Execution is the last stage of litigation. When the decree-holder gets the thing granted to him by judgment, decree or order, the execution is complete. This means it is used to enforce judgements or orders regarding payments, specific performances, or delivery of property.

An execution petition should be filed after a decree or final order is passed by the court, and when the party against whom it is passed fails to comply voluntarily.

The Official Definition of the Execution Petition

As per Rule 2 (e) of Andhra Pradesh Civil Rules of Practice and Circular Order, 1990, ‘Execution petition’ means the petition to the court for the execution of any decree or order.

As per Rule 2 (f) of Andhra Pradesh Civil Rules of Practice and Circular Order, 1990 ‘Execution application’ means an application to the court made in a pending Execution Petition and includes an application for transfer of a decree.

Legal Provisions related to Execution Petition

Code of Civil Procedure, 1908

The Law relating to execution of decrees is to be found in Sections 36 to 74, Sections 82 and 135; and Order XXI of the Code of Civil Procedure. Application for execution of decree under this section may be either oral (order 21 rule 10) or written (order 21, rule 11). The Code imposes considerable responsibility on the Judge in execution matters. When the decree becomes final an application for execution of decree is to be made in the prescribed proforma (Form No. 6 of Appendix E to the 1 Schedule of CPC) to the court which passed the decree containing interalia, the following information as required by Rule 11 of Order XXI. All proceedings in execution commence with the filing of an application for execution. Such an application should be made to the court which passed the decree or, where the decree has been transferred to another court, to that court. Rules 10-25 and 105-106 of Order XXI deal with execution applications.

Section 36 provides the main principle of this section which is ‘every Court has an inherent power to have its orders carried out, as otherwise the orders would be a mere farce’. This provision is applicable to all orders which can be included in Sec 2(14) and is not limited to orders made under the code.

Court competent to execute decrees

The decree under Code of Civil Procedure, 1908 (CPC) can be executed by the court which passed the decree or the court to which it is sent for execution as per Section 37 and Section 38 of the Code of Civil Procedure.

Section 37 of the Code of Civil Procedure 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:

1. The court of first instance which actually passed the decree;
2. The court of first instance in the case of appellate decrees;
3. Where the court of first instance has ceased to exist, the court which would have jurisdiction to try the suit at the time of execution; and
4. Where the court of first instance has ceased to have jurisdiction to execute the decree, the court which at the time of execution would have had jurisdiction to try the suit.

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.

Section 38 of the Code of Civil Procedure further 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.

Transfer of Decree for execution

A court which has passed a decree may send it to other courts of competent justice for the execution on the application of the decree-holder under Section 39 of CPC and Section 40 of CPC. Section 39 of the Code which deals with the transfer of decree provides that a court that passed a decree can send it to another court for execution if the following conditions are met

• The person against whom the decree is passed lives or works in the jurisdiction of the other court;
• The person against whom the decree is passed doesn't have enough property in the jurisdiction of the court that passed the decree;
• The decree orders the sale or delivery of immovable property outside the jurisdiction of the court that passed the decree.

Section 40 provides that whenever a decree is sent to some other state for execution it shall be sent to the court and executed in the manner as may be prescribed by the rule in force in that state.

Regional Variation

• Punjab, Himachal, and DelhiA provision has been made in Order XXI, Rule 10, Civil Procedure Code as amended by the Punjab High Court, to enable the decree-holder to apply for immediate execution through the Court within whose jurisdiction the judgment-debtor is, by producing merely the decree and an affidavit of non-satisfaction pending the receipt of a formal order of transfer under Section 39, Civil Procedure Code.

Questions to be determined by Executing Court

Section 47 of the Code of Civil Procedure, 1908 lays down that all the questions relating to execution, discharge and satisfaction of the decree are to be decided by the Executing Court and even the decision of the complicated questions is also not prohibited. The provision provides for disposal of all the questions arising between the parties to the suit, in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Even the Code bars the powers to decide as the person raising objection is a Judgment Debtor or his representative and such question would also relate to execution, discharge or satisfaction of a decree.

However, An executing court cannot go behind the decree. It has to execute the decree as it is. It cannot question the correctness or otherwise of the decree. The decision of the executing court under Section 47 being not a decree cannot be appealed under Section 96 CPC.

Mode of executing decree

Section 51 of the Code of Civil Procedure enumerates in general terms the various modes in which the court may order the execution of a decree according to the relief granted in favour of a decree-holder. It is for the decree-holder to decide in which of the several modes she will execute her decree. An application for execution of the decree can either be oral or written (O21 R11). The court may execute the decree as per the mode of implementation prayed by the decree-holder or as the court deems fit. As a general rule, a court passing a decree against the defendant should not ordinarily place any limitation as to the mode in which it is to be executed. The modes of executing decree under section 51 include -

• (a) By delivery of any property specifically decreed.
• (b) By attachment and sale, or by sale, without attachment of any property.
• (c) By arrest and detention of the judgment- debtor.
• (d) By appointment of a Receiver; or
• (e) In such other manner as the nature of the relief may require.

In most cases, the methods specified in (a), (b) and (c) alone are resorted to and are found adequate. The appointment of a Receiver may be tried where the value of the property is sufficient to bear the cost and where such appointment is expected to be conducive to harmonious relations between the judgment debtor and the decree-holder and to provide for the discharge of the decree in a satisfactory manner.

These 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 or by appointing a receiver, or by effecting partition, or in such other manner as the nature of the relief may require. A show-cause notice is required only if the execution petition is filed more than two years after the decree's passing or is against a legal representative, assignee, or receiver when the decree-holder has been declared insolvent. However, if the court anticipates unreasonable delays or a threat to justice, it may, at its discretion, proceed with issuing a process instead of a show-cause notice.

Limitation

Articles 125 to 129 and 134 to 137 of Limitation Act, 1963 deal with the limitation in respect of the execution proceedings. Article 136 provides that the period of limitation for the execution of a decree (other than a decree granting a mandatory injunction) is 12 years from the date of the decree and Article 135 provide that the period of limitation for the execution of a decree for mandatory injunction is 3 years from the date of the decree.

Section 82 of Code of Civil Procedure provides that where the decree is against the Union of India, or the State of public officer in his official capacity, execution shall not be issued on such decree for a period of three months and limitation for execution of such decree commences only after the expiry of three months from the date of decree.

The Court has to see whether the decree sought to be executed is in time i.e., 12 years is the time to file an execution petition from the date of decree. If installments are granted with default clause, the time till default will have to be excluded while computing 12 years. The Court has to register it by giving number. Execution EP 1/08. If the Execution Petition is within 2 years, steps like attachment of property and salary can be ordered straight away. If the Execution petition is filed more than 2 years from the date of decree, a show cause notice as to why the execution of decree should not be ordered (See Order 21 Rule 22 CPC). In respect of decree for mandatory injunction, 3 years is the limitation (See Article 135 of the Limitation Act. In respect of execution of decree for permanent injunction, there is no limitation (See proviso to Art. 136 of Limitation Act).

Regional Variations

• By section 11 of the Punjab Debtors Protection Act the period of limitation has been reduced to six years in certain cases specified therein and the attention of the Courts is directed to that Section.

Execution of Arbitral Awards

The procedure for enforcement and of decrees in India is governed by the Code of Civil Procedure, 1908 while that of arbitral awards in India is governed by the Arbitration & Conciliation Act, 1996 as well as the CPC. According to Section 35 of the Arbitration And Conciliation Act, 1996, an arbitral award shall be final and binding on the parties and persons claiming under them. Thus, an arbitral award becomes immediately enforceable unless challenged under Section 34 of the Arbitration And Conciliation Act, 1996. When the period for filing objections has expired or objections have been rejected, the award can be enforced under the CPC in the same manner as if it were a decree passed by a court of law. An ex parte award passed by an Arbitral Tribunal under Section 28 of the Act is also enforceable under Section 36. Even a settlement reached by the parties under Section 30 of the Act can be enforced under Section 36 of the Act as if it were a decree of the court.

Functional Aspects

Allocation

The Chapter XII of rules of High Court of Delhi on 'Execution of Decrees' provide that district Judges are required to establish standing orders for distributing execution applications among subordinate courts, ensuring cases involving decrees passed by officers no longer attached to the district are properly managed, and pending execution proceedings before such officers continue without disruption. Courts should generally handle the execution of their own decrees; however, if a decree must be transferred, it should be sent only to a court with competent jurisdiction as defined under Section 39(3). District Judges must closely supervise execution work in subordinate courts to prevent negligence, and habitual neglect or perfunctory handling of such work should be reported to the High Court. Execution work should receive the same priority as original civil work, with at least one dedicated day each week — or more if required — reserved for its systematic and timely disposal. District Judges are responsible for ensuring that subordinate courts have proper arrangements in place for handling execution matters efficiently.

Classification as Pending

Execution Proceedings, for statistical purposes, is generally considered to be pending for the period during which something is being done towards execution.

Regional Variations

• Punjab and Haryana: The Chapter 12 Part E of Rules and Order of Punjab High Court (Volume I) on Procedure on Application of Execution provides that if the decree-holder has realized his installment, or obtained the satisfaction asked for in the application for execution, the case should be struck off, even though a portion of the decree still remains unexecuted. Similarly, the case should be dismissed if the applicant for execution does not take necessary steps to prosecute his application. The Court should record its reasons for the action taken in such cases.
• Jharkhand: Rule 114(b) of Civil Court Rules of the High Court of Jharkhand provide that an Execution Case shall be treated as pending, until the installment of the Decreed Amount is paid; and Execution Case should be shown disposed off on the date when the sale is confirmed or on the date when the Stamps for the sale certificate is filed.

As discussed in case laws

Rahul S. Shah v. Jinendra Kumar Gandhi (2021)

The Supreme Court in Rahul S. Shah v. Jinendra Kumar Gandhi ((2021) 6 SCC 418) considering the urgent need to reduce delays in the execution proceedings, the Court issued the following directions

1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.
2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.
3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.
4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.
6. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.
7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.
8. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.
9. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
10. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.
11. Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.
12. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
13. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.
14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts.

Shubh Karan Bubna vs. Sita Saran Bubna and Others (2009)

In Shubh Karan Bubna vs. Sita Saran Bubna and Others, the Supreme Court suggested eliminating the artificial division between preliminary, final decree, and execution proceedings. <br>• Once a preliminary decree is issued, subsequent proceedings should be continuous rather than fragmented. <br>• The Code of Civil Procedure should be amended to reflect a seamless process from filing to relief.

International Experience

Singapore

Unlike the challenges faced by decree-holders (DHs) in India, the enforcement of money decrees in Singapore is more streamlined and efficient. The Singapore government provides several sources of information to aid in enforcing money decrees, including:

1. E-services from the Ministry of Law's Insolvency Office, offering data on the bankruptcy and solvency status of individuals and corporate entities.
2. The Accounting and Corporate Regulatory Authority (ACRA) Business Information database, which provides details on an individual's current and past business activities, positions held, shareholdings, and financial information related to companies.

In Singapore, DHs can request the court's assistance in obtaining information about a judgment debtor's (JD’s) assets before initiating legal action. They can file applications for pre-action discovery and interrogatories to identify potential assets and may also request orders to prevent the JD from disposing of assets.

The enforcement of money decrees is governed by the new Rules of Court 2021 and the Singapore International Commercial Court Rules 2021, which took effect on April 1, 2022. These rules offer several enforcement methods, all initiated through a single application that outlines the sequence of actions. The enforcement process, overseen by the Sheriff, has been simplified and typically takes two to eight months to complete. Additionally, the JD may be liable for legal costs, court filing fees, and execution-related expenses, such as advertising and auction fees, as well as the Sheriff's commission, under Order 22 Rule 9 of the 2021 Rules.

Appearance of execution petition in database  

National Judicial Data Grid (NJDG)

The NJGD data shows the statistics for the pending execution petitions for both civil and criminal cases across different courts High Court, bench-wise and year-wise classified into matter-type, age-wise and institution v. disposal.

The information related to pendency of Civil Execution petition in District Courts is also captured in NJDG, and are categorised annually and as per the court establishment.

As Case Types in High Courts

There are multiple case types that relate to matters filed for execution. The table below illustrate this variations

High Court	Case type(s) for execution petition
Allahabad	1 –execution case
Calcutta	2 – execution case and execution case commercial
Gauhati	4 – execution application, execution first appeal, execution second appeal and execution petition
Himachal Pradesh	8 – execution petition in RSA, execution petition in FAO, execution petition, execution petition in CWP, execution petition in Civil Revision , execution petition in RFA, execution petition tribunal and execution petition in RP
Jammu and Kashmir	Srinagar Wing: 6 – execution petition, execution first appeal, execution second appeal, execution application, execution of order/judgment in OWP and execution  of order/judgment in SWP Jammu Wing: 7 – execution first appeal, execution second appeal, execution application, execution petition in arbitration application/award, execution of order/judment in OWP, execution petition, execution  of order/judgment in SWP
Karnataka	2 – execution first appeal and execution second appeal
Kerala	4 – Execution application, execution first appeal, execution petition and execution second appeal
Madhya Pradesh	3 –  Execution case, Execution miscellaneous case and execution objection case
Manipur	4 – Execution application, Execution petition, Execution first appeal and Execution second appeal
Meghalaya	4 –  Execution application, execution first appeal, execution petition and execution second appeal
Orissa	4 –  Execution application, execution first appeal, execution petition and execution second appeal
Punjab and Haryana	4 – execution first appeal, execution first appeal (commercial), execution petition (commercial) and execution second appeal
Rajasthan	2 – Execution first and second appeal
Telangana	1 – Execution petition
Tripura	2 – Execution petition and execution first appeal
Uttrakhand	1 – Execution decree
Delhi	3 – Execution petition, execution first appeal and execution second appeal

Research that engages with Execution Petition

Focusing on Execution Proceedings (DAKSH)

The article titled “Focusing on Execution Proceedings” written by Sandhya PR and Smita Mutt, examines the slow pace and inefficiencies in the execution of decrees, particularly in the context of arbitration awards, through the lens of a Supreme Court case in India:  M/s Chopra Fabricators and Manufacturers Pvt. Ltd. v. Bharat Pumps and Compressors Ltd. This case highlights the backlog of pending execution cases in Uttar Pradesh, where many arbitration awards remain unexecuted for years. The authors emphasize how this delay undermines the faith of decree-holders (DHs) in the system. A sample study of 5,149 execution cases in Allahabad, the article concudes that it took 4.47 years (1,630 days) to dispose of cases. This indicates that the current execution process is neither prompt nor efficient.The article identifies several structural challenges, such as inadequate data categorization, which obscures the nature of execution proceedings. For example, many cases in the system are not tagged with relevant sections or acts, making it difficult to segregate cases based on their subject matter.