Thursday, 30 June 2022

Decree and its Execution

 Decree and its Execution

  • Decree means a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 2 *** section 144, but shall not include

  • any adjudication from which an appeal lies as an appeal from an order (Sec. 104), or 

  • any order of dismissal for default i.e. where the plaintiff does not appear to present his case. If the plaintiff does not appear, there is no ex parte decree and hence, there is a simpliciter dismissal for default. This is not considered as a decree and therefore, Sec. 11 will not be applicable.  

  • Essentials of a Decree

  • There must be adjudication of dispute 

  • Conclusive determination of rights of parties with respect to issues raised in the suit. 

  • Formal expression of such determination

  • Kinds of Decree

  • Preliminary Decree : Further proceedings have to be taken before the suit can be completely disposed off. 

  • Final Decree : Where the court has decided the issues to an extent where it can completely dispose off the suit. 

  • Partly Preliminary and Partly Final : Where certain issues vis a vis maintainability are decided and along with that other issues are also decided and will not be re-looked at as the court proceeds with the suit. 

  • A person aggrieved by preliminary decree must file an appeal within the statutory prescribed period, if the individual does not do so, he is estopped from subsequently raising those grievances at the time of final decree or during appeal to the final decree.

Execution of Decree

  • In case of voluntary satisfaction, there is no need for applying to court for execution, one just has to report the satisfaction of decree to the court.

  • In case there is no voluntary execution of decree by the parties, an application has to be made to the court for execution of the decree. This court may be different from the court which has passed the decree. 

  • Based on this application, the court will issue a notice to the other party to show cause why decree should not be executed against him. 

  • This matter will be heard by execution court. It will not go behind the merits of the decree and rehear the matter but just ascertain why decree should not be executed against the other party. 

  • An order will be passed by the court for execution of decree. 

  • The execution court can look into questions only which deal with 

  • satisfaction and discharge of the decree

  • Objections raised by third party towards execution of decree.

  • Cannot go behind the decree 

  • Modes of execution: 

    • Delivery of Property

    • Sale : With or Without attachment  

    • Arrest

    • Appointment of receiver

    • Any other mode court may deem fit 

Execution through Court

  • Application: 

  • The application has to be made in writing (Rule 11(2)). 

  • It should contain the particulars like date, name of the court, name of the parties etc. (Rule 11-14). 

  • The application should also be served upon the other side. 

  • The application can be made by the decree holder or his legal representative. Furthermore, the court may require the decree holder to make certain amendments to the application if it is not properly framed. 

  • Notice (Rule 22): 

A notice has to be issued in following circumstances unless it appears that the judgement debtor will abscond  upon receiving notice (Rule 37):

  • Where application for execution of decree is being made after two years 

  • Where application is made against a legal representative of a party to the decree

  • Where application is made against an assignee or receiver in case of insolvency. 

In case of money decree, it is satisfied when decree is passed. If it is not done within prescribed time, then the mode of arrest and detention of the judgement debtor exists for execution of the decree. Application can be filed for arrest and detention of the judgement debtor in following circumstances:

  • Dishonestly transferred, concealed or removed his property from the territorial jurisdiction or ownership.

  • He is absconding

  • He refuses or neglects to pay.

  • Decretal dues are such that he is bound to account for them in a fiduciary capacity (eg- trustees, executor of will, guardian, where amount is held for the benefit of another).

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