UNIVERSITY INSTITUTE OF LEGAL STUDIES

Execution of Decree and General

Rules of Pleadings

Submitted to:- Submitted by:-

MRS. SITAL RAVNEET SINGH
BCOM L.L.B
172/15
8TH SEMESTER
 Acknowledgement

Success is a blend of multiple efforts. The final import of this project is also a
result of the sheer hard work and constant support of many people. I would like to
take this opportunity to thank all of them.

To begin with, I would like to express my humble gratitude to my teacher, Ms.

Sital for her able guidance and mentoring. The meticulous manner in which she
teaches has paid significantly in the completion of this project.

Secondly, I would like to thank my department, University Institute of Legal

Studies, Panjab University, Chandigarh, for providing such an expansive library
which provided me all the relevant material required for this project.

Last but not the least, I would like to express my profound gratitude to my
parents and my friends who have constantly supported and motivated me
throughout this project.

Ravneet Singh
 Table of Contents

Table of Contents
Acknowledgement .......................................................................................................................... 2
Table of Contents ............................................................................................................................ 3
INTRODUCTION .......................................................................................................................... 4
MEANING AND TYPES ............................................................................................................... 5
FUNDAMENTAL RULES OF PLEADING ................................................................................. 6
OTHER GENERAL RULES .......................................................................................................... 9
PLAINT ........................................................................................................................................ 12
STRUCTURE OF THE PLAINT ............................................................................................. 14
WRITTEN STATEMENT ............................................................................................................ 15
WRITTEN STATEMENT STRUCTURE ................................................................................... 18
EXECUTION ................................................................................................................................ 21
Bibliography ................................................................................................................................. 27
 INTRODUCTION

Pleadings are very important in civil cases. It is the duty of the lawyer to make a proper pleading.
Since a considerable percentage of litigants are either illiterate or not conversant
with law the duty of the lawyer of becomes more relevant facts of the case from the client. The
lawyer has to even to anticipate probable evidence that may be let in. All the details should be
comprehended, analyzed and assimilated before drafting the pleadings. A good case
may sometimes be lost because of bad drafting. Pleading are intended to put forth the
case of the parties before court. Pleadings constitute
the basis for the litigation. By the pleadings, the point at issue between the parties should be clea
r and ambiguous. The opposite party is made known of the case of
t h e o t h e r p a r t y b y t h e pleadings. While drafting the pleadings there should be no
attempt to concealment of the relevant f a c t s . A s t u t e n e s s i n d r a f t i n g i s n e c e s s a r y.
B u t i t s h o u l d n o t g o t o t h e e x t e n t o f p u t t i n g t h e opposite party to surprise.
From the pleadings, either party should be able to know what his opponents case is
and what case he has to meet. The parties should get a fair idea from
the pleadings as to what disputes involved in the case effectually and completely.
Proper pleadings would enable the court to raise proper issue for trial. It would enable the parties
to d e c i d e t h e c a s e e f f e c t u a l l y a n d c o m p l e t e l y . P r o p e r pleadings would
also avoid delay and minimize the expenditure of litigation. It is the duty of the law yer to
ensure that correct facts are brought before the court. %e should ensure that
wrong facts, calculated to mislead the court are not pleaded judicial Pronouncements are effect
to the effect that without proper pleadings, any amount of evidence is of no use and that such
evidence shall not be looked into by the court.
 MEANING AND TYPES

MEANING

As per Order VI Rule 1 pleading is either plaint or written statement. However pleading can be
defined as a formal statement that requests the court to either grant a relief or pass a verdict in a
dispute. The plaintiff initiates the lawsuit by filing a complaint while respondent will file an
answer to the claims of the plaintiff. The pleadings are the first document that the parties file
before the court. However other documents may be added as the trail continues

TYPES OF PLEADING –

 PLAINT (ORDER VII)

A plaint is a legal document which contains the written statement of the plaintiff’s claim.
A plaint is the first step towards the initiation of a suit. It can be said to be a statement of
claim, a document, by presentation of which the suit is instituted. However the expression
“plaint” has not been defined in the code. It is a pleading of the plaintiff.

 WRITTEN STATEMENT (ORDER VIII)

The expression “Written Statement” has not been defined in this code. It is a term of
specific meaning ordinarily signifying a reply to the plaint filed by the plaintiff. In other
words, it is the pleading of the defendant wherein he deals with the material fact alleged
by the plaintiff in his plaint and also states any new fact in his favour or takes legal
objections against the claim of the plaintiff.
 FUNDAMENTAL RULES OF PLEADING

The fundamental rule of pleadings is contained in provisions of O. 6, R. 2 of C.P.C. which

enjoins:

(1) “Every pleading shall contain only, a statement in a concise form of the material facts on
which the party pleading relies for his claim or defence, as the case may be, but not the evidence
by which they are to be proved.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively,
each allegation being, so far as is conveniently, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.”

To quote the Earl of Halsbury: “The sole object of it is that each may be fully alive to the
questions that arc about to be argued in order that they may have an opportunity of bringing
forward such evidence as may be appropriate to the issues.”

The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one
main object in view. It is to find out and narrow down controversy between the parties.

“The pleadings are not to be considered as constituting a game of skill between the advocates.
The) ought to be so framed as not only to assist the party in the statement of his case but the
court in its investigation of the truth between the litigants”. The pleading shall contain:

(i)facts only, then again, material facts;

(ii) not law;

(iii) not evidence; and

(iv)Immaterial facts to be discarded.

(v) Deficiency in pleading.

What are material facts? Facts which gave the plaintiff his cause of action or the defendant his
defence are, briefly speaking, material facts which he must prove or fail. It, therefore, stands to
reason that facts which are not required to support the plaintiffs or the defendant’s case are not
material. Whether a fact is material or not depends on the facts and circumstances of each case
and can be held so or otherwise only in the context of relevant situation.

(i)Material facts:

A pleadings shall contain only material facts. Material facts are the entirety of facts which
would be necessary to prove to succeed in the suit. Any fact which is not material should be
avoided. In Pratibha Singh vs Shanti Devi and Anr 1it was held that if a property can be
identified.by the boundaries or numbers in the record for settlement the plaint shall specify it
Material facts should be pleaded concisely. There is hardly any scope for showing literary genius
in a pleading.

Order 6, R. 2, C.P.C. should be read with O. 6, R. 4(c). When commencing a suit, the plaintiff is
required to state only material facts, but such facts must constitute his cause of action as well.
Absence of material facts will put the party to discomfiture, for no amount of evidence can be
taken into consideration or regarded as sufficient in proof of any fact if specific mention of it is
not made in the pleadings. Therefore, if a party omits to state a material fact, he will not be
allowed to give evidence of the fact at the trial unless the pleading is amended under O. 6, R. 17,
C.P.C. The rule is based mainly on principles that no party should be prejudiced by change in the
case introduced by this method. No relief can be granted on facts and documents not disclosed in
the plaint.

It is often noticed that during the trial of a suit, some fact is sought to be introduced in evidence
which does not find mention in the plaint or in the written statement, as the case may be. Then
follows a heated parley when the court intervenes and rejects any attempt of introduction of any
new fact. To avoid discomfiture, the pleading should be carefully drafted not to miss any
material fact which may subsequently be found to be so material as to decide the fate of the case
this or that way.

1
AIR2003 SC 643
 (ii) Not law:

In a pleading, there is no scope of pleading a provision of law or conclusion of law. It is the

intention 286 PP-DA&P of the framers of the Code that a pleading should state facts, and the
position as in law shall be inferred if such facts are capable of raising any legal inference. The
pleading should present facts in such a way that those would irresistibly and spontaneously draw
a legal inference. Herein lies the art of pleading. To find out the law is the duty of the court.
Legal effects are not to be stated by the party2. In India, as in England, the duty of a pleader is to
set out the facts upon which he relies and not the legal inference to be drawn from them.
Likewise the conclusion of law or a mixed question of law and fact should not be pleaded.

(iii)Not evidence

In like manner evidence has to be avoided in pleadings. We have noticed the wording of the rule
of O. 6, R. 2 to wit, a statement in a concise form of the material facts on which the party
pleading relies for his claim or defence as the case may be but not the evidence by which they
are to be proved. A pleading should not contain facts which are merely evidence to prove the
material facts.

(iv) Immaterial facts to be discarded:

Unnecessary details are the facts which are not material and, therefore, should be discarded. A
pleading is not a place of fine writing but assertion of hard facts3

(v) Deficiency in pleading:

Case law- Kailash Chandra v. Vinod, 4Deficiency in pleading: Parties are related to each other
and know everything. No element ofsurprise has been caused to the other party. Parties
understood the case and led evidence accordingly. Deficiency in pleading would not affect case
of the plaintiff

2
Kedar lal vs Hari Lal AIR 1952 SC 1818
3
Odgers on pleading, Eleventh edition p107
4
AIR 1994 NOC 267 (MP)]
 OTHER GENERAL RULES

AS per ORDER6 pleadings should contain the following

R4.Particulars to be given where necessary.

In the cases of fraud breach of trust, misrepresentation, willful default and in all other cases in
which particulars is necessary shall be stated with proper particulars and dates

R6.Condition precedent.

Any condition precedent, the performance or occurrence of which is intended to be contested,

shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and,
subject thereto, an averment of the performance or occurrence of all conditions precedent
necessary for the case of the plaintiff or defendant shall be implied in his pleading

R7.Departure.

No pleading shall, except by way of amendment, raise any new ground of claim or contain any
allegation f fact inconsistent with the previous pleadings of the party pleading the same.

R8.Denial of contract.

Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall
be construed only as a denial in fact of the express contract alleged or of the matters of fact from
which the same may be implied, and not as a denial of the legality or sufficiency in law of such
contract.

R9.Effect of document to be stated.

Wherever the contents of any document are material, it shall be sufficient in any pleading to state
the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless
the precise words of the document or any part thereof are material.
R10.Malice, knowledge, etc.

Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of

the mind of any person, it shall be sufficient to allege the same as a fact without setting out the
circumstances from which the same is to be inferred.

R11.Notice.

Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be
sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or
the circumstances from which such notice is to be inferred are material.

R12.Implied contract, or relation.

Wherever any contract or any relation between any persons is to be implied from a series of
letters or conversations or otherwise from a number of circumstances, it shall be sufficient to
allege such contract or relation as a fact, and to refer generally to such letters, conversations or
circumstances without setting them out in detail. And if in such case the person so pleading
desires to rely in the alternative upon more contracts or relations than one as to be implied from

such circumstances, he may state the same in the alternative.

R13.Presumptions of law.

Neither party need in any pleading allege any matter of fact which the law presumes in his
favour or as to which the burden of proof lies upon the other side unless the same has first been
specifically denied (e.g., consideration for a bill of exchange where the plaintiff sues only on the
bill and not for the consideration as a substantive ground of claim)

R14.Pleading to be signed.

EVery pleading shall be signed by the party and his pleader (if any) :
Provided that where a party pleading is, by reason of absence or for other good cause, unable to
sign the pleading, it may be signed by any person duly authorized by him to sign the same or to
sue or defend on his behalf.

R15.Verification of pleadings.

Save as otherwise provided by any law for the time being in force, every pleading shall be
varied at the foot by the party or by one of the parties pleading or by some other person proved to
the satisfaction of the Court to be acquainted with the facts of the case. The person verifying
shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his
own knowledge and what he verifies upon information received and believed to be true. The
verification shall be signed by the person making it and shall state the date on which and the
place at which it was signed.
 PLAINT

Plaint is defined in order 7 of cpc. Rules 1to8 of order relate to particulars in a plaint. Rule 9 lays
down procedure on plaint being admitted. Whereas rules 10 to 10-B provide for return of plaint,
and appearance of parties, rules 11 to 13 deal with rejection of plaint. Rules 14 to 17 contain
provisions for production of documents. Order 7should be read with section 26 of the code.

Particulars of the plaint:

General Rules for drafting a plaint

Order 7 Rule 1 of CPC lays down that a plaint must contain the following particulars;-

1. Plaint should contain name of that court in which suit is brought.

2. Plaint should contain name, description and residence of plaintiff.

3. Plaint should contain name, description and residence of defendant.

4. When plaintiff or defendant is minor or person of unsound mind, plaint should contain a
statement to that effect.

5. Plaint should contain those facts, which have constituted cause of action. In addition to
this, it should also be described in plaint when cause of action has arisen.

6. Plaint should contain those facts, which show the court has jurisdiction.

7. Plaint should contain that relief, which plaintiff claims.

8. When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should
contain that amount, which has been so allowed or so relinquished.

9. Plaint should contain statement of value of subject-matter of suit not only for purpose of
jurisdiction, but also for purpose of court-fees.

10. Plaint should contain plaintiff’s verification on oath.

Some other principles related to plaint:-

1. As per Order 7 Rule 2 of The Code,1908: If the suit is for recovery of money, the plaint
should contain the exact amount claimed. If the suit is for mesne profit, or for an amount
which will be due on taking accounts, or a debt the value whereof cannot be estimated
with reasonable diligence, the approximate amount may be stated instead of the exact
amount.

2. As per Order 7 Rule 3 of The Code, 1908: If the suit is for immovable property, the
plaint should contain a proper description sufficient to identify such property along with
boundaries, survey numbers, etc., wherever possible.

3. As per Order 7 Rule 4 of The Code, 1908: Where the plaintiff files a suit of a
representative character, the plaint must show not only that he has an actual existing
interest in the subject matter of the suit, but also that he has taken the necessary steps to
enable him to file such a suit.

4. As per Order 7 Rule 6 of The Code, 1908: If the suit if filed after expiry of the
limitation period, the plaint must state the ground on which exemption from the law of
limitation is claimed. This proviso, however, empowers the court to permit the plaintiff to
rely on a new ground for exemption, if it is not inconsistent with the ground shown in the
plaint.

5. Where the plaintiff seeks relief in respect of several distinct claims or causes of action
founded on separate and distinct grounds, they should be stated separately and distinctly.

The plaint must state specifically the relief claimed by the plaintiff, either simply or in the
alternative.
STRUCTURE OF THE PLAINT

As per the above stated material we can say that the plaint should be drafted in a particular form.
So that a plaint can be divided into three important parts such as

1.HEADING AND TITLE

 NAME OF THE COURT

 NAME AND FULL DESCRIPTION OF PLAINTIFFS
 NAME AND FULL DESCRIPTION OF DEFENDANTS

2.BODY OF THE PLAINT

 MATTERS OF INDUCEMENT OR INTRODUCTORY PARAS

 CAUSE OF ACTION
 DATE OF CAUSE OF ACTION
 DEMAND AND REFUSAL
 CLAIM
 JURISDICTION CLAUSE
 VALUATION OF SUIT CORT FEES CLAUSE

3.RELIEF CLUASE

4.SIGNATURE AND VERIFICATION CLAUSE

5.VERIFIER SIGNATURE AND ITS ATTESTATION BY OATH COMMISSIONER

6.LIST OF DOCUMENTS OR ANNEXURES

 WRITTEN STATEMENT

It is incumbent on the defendant to file his defence in writing. If the defendant fails to file written
statement, the court may pronounce judgment against him or may under O. 8, R. 10, make such
order in relation to the suit as it deems fit. If the defendant has omitted to avail of his right to file
a written statement at or before the first hearing, the court can extend the time for filing it, in
exercise of its discretion, if the circumstances so warrant. The rule has to be worked in a manner
so as to advance justice held in case of Mehar Chand v. Suraj Bhan5,

Requirement of Written Statement

When the defendant appears and files a written pleading by way of defence, his pleading should
conform to all the general rules of pleading laid down in the preceding paras. A subsequent
pleading filed by the plaintiff, either in reply to a defendant’s claim of set off, or with leave of
the court, in answer to defendant’s pleas in defence, is also called a “written statement” (also
called Replication or Rejoinder). All the rules relating to defendant’s written statement apply,
mutatis mutandis to such written statement of the plaintiff also.

As per Order 8 Rule 1 of The Code, 1908:

The text of Order VIII, Rule 1, as it stands now, reads as under :-

"l. Written Statement.- The defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defense :

Provided that where the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the same on such other day, as may be specified by the
Court, for reasons to be recorded in writing, but which shall not be later than ninety days from
the date of service of summons".

5
AIR 1971 Punj 435).
Provision of Order 8,Rule 1.are directory in nature even after expiry of stipulated period court
can extend time to file written statement. As held in case of Rameshwar Lal v. Daya Nand6

As per Order 8 Rule 2 of The Code, 1908:

Order VIII,Rule 2. requires that the defendant must raise by his pleading all matters which show
the suit not to be maintainable, or that the-transaction is either void or voidable in point of law,
and all such grounds of defence as, if not raised, would be likely to take the opposite party by
surprise. or would raise issues of fact not arising out of the plaint, as for instance,fraud,
limitation, release,payment, performance, or facts showing illegality.

As per Order 8 Rule 3 of The Code, 1908:

Order VIII Rule 3. requires that it shall not be sufficient for a defendant in his written statement
to deny generally the grounds alleged by the plaintiff. but the defendant must deal specifically
with each allegation of fact of which he does not admit the truth, except damages.

"if a plea which was relevant for the purpose of maintaining a suit had not been specifically
traversed, the Court was entitled to draw an inference that the same had been admitted. A fact
admitted in terms of Section 58 of the Evidence Act need not be proved." Held in case of Man
kaur v. Hartar Singh Sangha7

As per Order 8 Rule 4 of The Code, 1908:

Rule 4 of Order VIII of C.P.C. says that where a defendant denies an allegation of fact in a
plaint, he must not do so evasively, but answer the point of substance.

6
AIR 2002 SC 2487
7
2010 SCC 512
As per Order 8 Rule 5 of The Code, 1908:

Where every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted except as against a person under disability. The court
may, however, require proof of any such fact otherwise than by such admission.

As per Order 8 Rule 7 of The Code, 1908:

Where the defendant relies upon several distinct grounds of defence or set-off or counterclaim
founded upon separate and distinct facts, they should be stated separately and distinctly.

As per Order 8 Rule 8 of The Code, 1908:

Any new ground of defence which has arisen after the institution of the suit is a presentation of a
written statement claiming a set-off or counterclaim may be raised by the defendant or
plaintiff in his written statement as the case may be.

As per Order 8 Rule 10 of The Code, 1908:

If the defendant fails to present his written statement within the time permitted or fixed by the
court, the court will pronounce the judgment against him or pass such order in relation to the suit
as it thinks fit and a decree will be drawn up according to the said judgment.

As per Order 8 Rule 9 of The Code, 1908:

No pleading after the written statement of the defendant other than by way of defence to set-off
or counterclaim can be filed.
 WRITTEN STATEMENT STRUCTURE

1.Formal Portion of Written Statement

(2) Body of the Written Statement:

How to Draft a Written Statement

When it is intended to take several defences in the same written statement, the different kinds of
defences should be separately written. It is convenient to adopt the following order for the
several pleas:

(i)Denials

(ii) Dilatory pleas.

(iii)Objections in point of law.

(iv) Special defence (pleas in confession and avoidance).

(v) Set off.

Drafting of Reply/Written Statement

Important Considerations At the time of drafting the reply or written statement, one has to keep
the following points in mind:-

(i) One has to deny the averment of the plaint/petition which are incorrect, perverse or false.
In case, averment contained in any para of the plaint are not denied specifically, it is
presumed to have been admitted by the other party by virtue of the provisions of Order 8,
Rule 5 of the Code of Civil Procedure. It must be borne in mind that the denial has to be
 specific and not evasive (Order 8, Rule 3 & 4 CPC)8. However, general allegation in the
plaint cannot be said to be admitted because of general denial in written statement. As
held in caser of Union v. A. Pandurang,9
(ii) If the plaint has raised a point/issue which is otherwise not admitted by the opposite party
in the correspondence exchanged, it is generally advisable to deny such point/issue and
let the onus to prove that point be upon the complainant. In reply, one has to submit the
facts which are in the nature of defence and to be presented in a concise manner
(iii)Attach relevant correspondence, invoice, challan, documents, extracts of books of
accounts or relevant papers as annexures while reply is drafted to a particular para of the
plaint;
(iv) The reply to each of the paras of the plaint be drafted and given in such a manner that no
para of the plaint is left unattended. The pleadings are foundations of a case10
(v) After reply, the same is to be signed by the constituted attorney of the opposite party. If
the opposite party is an individual, it could be signed by him or his constituted attorney or
if the opposite party is a partnership firm, the same should be signed by a partner who is
duly authorised under the Partnership Deed, because no partner has an implied authority
to sign pleadings on behalf of the partnership firm by virtue of Section 22 of the Indian
Partnership Act, 1932. In case of a body corporate, the same could be signed by any
Director, Company Secretary, Vice-President, General Manger or Manager who is duly
authorised by the Board of Directors of the company because any of the aforesaid persons
per se are not entitled to sign pleadings on behalf of the body corporate. However, at the
time of filing of petition, if the pleadings are signed by a person not authorised, the same
could be ratified subsequently as held in the case of United Bank of India v. Naresh
Kumar11
(vi) The reply/written statement is to be supported by an Affidavit of the opposite party.
Likewise, the Affidavit will be sworn by any of the persons aforesaid and duly notorised
by an Oath Commissioner. The Affidavit has to be properly drawn and if the affidavit is

8
[1986 Rajdhani Law Reporter 213; AIR 1964 Patna 348 (DB), AIR 1962 MP 348 (DB); Dalvir Singh Dhilowal v.
Kanwaljit Singh 2002 (1) Civil LJ 245 (P&H); Badat & Co v. East India Trading Co. AIR 1964 SC 538]
9
AIR 1962 SC 630.
10
[Vinod Kumar v. Surjit Kumar, AIR 1987 SC 2179.]
11
AIR 1997 SC 2.
 not properly drawn or attested, the same cannot be read and the petition could be
dismissed summarily. [Order 6, Rule 15 CPC]. The court is bound to see in every case
that the pleadings are verified in the manner prescribed and that verifications are not mere
formalities.
(vii) The reply alongwith all annexures should be duly page numbered and be filed
alongwith authority letter if not previously filed
(viii) .At the time of filing of reply, attach all the supporting papers, documents,
documentary evidence, copies of annual accounts or its relevant extracts, invoices,
extracts of registers, documents and other relevant papers.
(ix) It may be noted that if any of the important points is omitted from being given in the
reply, it would be suicidal as there is a limited provision for amendment of pleadings as
provided in Order 6, Rule 17 CPC, and also the same cannot be raised in the Affidavit-in-
Evidence at the time of leading of evidence. Because if any point has not been pleaded in
the pleadings, no evidence could be led on that point. General rule is that no pleadings,
no evidence as held in the case of Mrs. Om Prabha Jain v. Abnash Chand Jain12
(x) If a party is alleging fraud, undue influence or mis-representation, general allegations are
insufficient even to amount to an averment of fraud of which any court ought to take
notice, however, strong the language in which they are couched may be, and the same
applies to undue influence or coercion
(xi) It is well settled that neither party need in any pleadings allege any matter of fact which
the law presumes in his favour or as to which the burden of proof lies upon the other side
unless the same has first been specifically denied. [Order 6, Rule 13 CPC; Sections 79
and 90 of Indian Evidence Act.]
(xii) In every pleading, one must state specifically the relief which the party is
claiming from the court or tribunal or forum. While framing the prayer clause, one should
claim all possible relief as would be permissible under the pleadings and the law [Order
7, Rule 7 CPC]. The general principle is that the relief if not prayed for, will not be
allowed. As held in the case of R Tiwary v. B Prasad,13

12
AIR 2002 SC 136.]R 1968 SC 1083; 1968 (3) SC
13
AIR 2002 SC 136.]
 EXECUTION

INTRODUCTION

The term “execution” has not been defined in the code. The expression “execution” means
enforcement or implementation or giving an effect to the order or judgment passed by the court
of justice.[ii] Simply “execution” means the process for enforcing or giving effect to the
judgment of the court.[iii] Execution is the enforcement of decrees and orders by the process of
the court, so as to enable the decree-holder to realize the fruits of the decree. The execution is
complete when the judgment-creditor or decree-holder gets money or other thing awarded to him
by the judgment, decree or order.\

This Order 21 of The Code, 1908 can be divided into six parts. The main classification is as
under:-

1) Applications for execution and the process to be applied.

2) Stay of executions.

3) Mode of executions.

4) Sale of immovable property and movable property.

5) Adjudication of the claims and objections.

6) Resistance and delivery of possession.

APPLICATION FOR EXECUTION

Every application for the execution of decree has to be in writing signed and verified by the
applicant or some other person who is acquainted with the facts of the case. It must contain the
following particulars as provided under Rule 11(2) to 14 of the Order, namely:

a) The name of the court

 b) The number of the suit
c) The name of the parties
d) The date of the decree
e) Whether any appeal has been preferred from the decree, and if any what is the result
thereof
f) The nature character and the amount of the decree and the costs
g) The mode of execution, ie, against person or property movable or immovable and their
detailed description

WHO MAY APPLY FOR EXECUTION

The application for execution is made by the decree holder, people claiming under him including
transferee. Where the decree has been passed jointly in the favour of more persons than anyone
or more of such persons may apply for the execution (R16)

AGAINST WHOM EXECUTION MAY BE APPLIED FOR

Where judgment debtor is living, the execution is applied for against him. If he is dead,
execution is applied for against his legal representative. When execution is applied for against
legal representative, it cannot be against the person of the legal representative, but only against
the property of the judgment debtor which has come to legal representative and not disposed by
him

WHICH COURT HAS POWER TO EXECUTE A DECREE?

Section 38 of the code specifics that a decree may be executed either by the Court who passed it
or by the Court to which it is sent for execution. Section 37 defines the expression ‘Court which
passed a decree’ while sections 39 to 45 provide for the transfer for execution of a decree by the
Court which passed the decree to another Court, lay down conditions for such transfer and also
deal with powers of executing Court14.

The code lays down following modes for the execution of different types of decrees:

i. By delivery of any property specifically decreed. Property may be movable or immovable

[Section 51(a)].

ii. By attachment and sale of the property or by sale without attachment of the property
[Section 51(b)].

iii. By arrest and detention in prison [Section 51(c)].

iv. By appointing a receiver [Section 51(d)].

v. Section 51(e) is the residuary clause and comes into play only when the decree cannot be
executed in any of the modes prescribed under clause (a) to (d).

14
Justice C.K.Takwani (Thakker), Civil Procedure (CPC) with Limitation Act (8th ed. E.Book 2017)
IN THE COURT OF CIVIL JUDGE (SR. DIV.)

AT PATIALA

Execution application no. ........ of 2019

i) Number of Suit Civil Suit no. 262 of 23. 07.2013

ii) Name of parties Rajinder Singh s/o Parminder Singh R/o # 148A Model Town,
Patiala.

....Dercee Holder

Versus

Hardayal Singh s/o Surjan Singh R/o # 114D Lal Bagh Colony,
Patiala.

Jaimal Singh s/o Balkar Singh R/o # 58 Manjit Nagar, Patiala.

....Judment Debtor

iii) Date of Decree 20.12.2018

iv) Whether any payment No.

or adjustment has
been made subsequent
to decree, if any.

v) Any previous This is Ist execution application.

application for
execution of decree,
with date and result.

vi) Amount with interest A decree for permanent injunction and mandatory injunction
due upon the decree or has been passed by the ld. court with compensation.
other relief granted
Amount of compensation is Rs. 20,000/- along with interest @
 thereby. 6% per annum.

vii) Amount of cost, if any Rs 5000/-

awarded.

viii) Against whom to be Judgment Debtor

executed

ix) Mode in which the By issuance of direction to the judgment debtors to remove the
assistance of court is malba of illegal construction raised by them on the site in
sought. question and direct them pay the compensation awarded by
learned court and if they refuses to do so then by issuance of
warrant for attachment of their property and be detained in civil
prison in the interest of justice.

Sir,

I, do solemnly affirms as follows:-

1. That decree holder / plaintiff had filed suit no. 262 of 23.07.2013 against the
judgment debtors for decree of permanent injunction restraining the judgment debtors
from interfering in any manner or dispossessing the plaintiff from his established
possession as owner of plot at Village Tripuri Saidan (D. L. F. Colony) Tehsil &
Distt. Patiala measuring 0-9 Marlas 262.5 Sq. Yards out of Khewat Khatouni No.
84/133 Khasra No. 34//7/6 (4-14) as per the jamabandi of year 2012-2013 and
directing the judgment debtors to remove the malba of illegal construction raised by
them on the site in question during the pendency of suit.

2. That on 20.12.2018 a judgment was passed by the court of Shri Mahesh Kumar, PCS,
Ld.Civil Judge, Sr, Divn. Patiala, in which the judgment debtors have been restrained
from interfering in any manner or dispossessing the decree holder. And with
mandatory injunction directing the judgment debtors to remove the malba of illegal
construction raised by them on the site in the question within a period of three months
from the date of passing decree.
The Ld. Court also awarded the compensation amounting to Rs. 20,000/- along with interest
@6% per annum to decree holder for trespass done by judgment debtors. The copy of the decree
passed by the Ld. Civil Judge Senior Divison has been affixed thereto as Annexure P1.

3. That the time granted by the Ld. court for removing of malba of illegal construction
raised by judgment debtors have since expired, but the defendants have not complied
with the decree. Thus the decree holder is entitled to see the removal of illegal
construction from the site in question through present execution proceedings. The
judgment debtors be thus directed to immediately remove the construction and on
their failure to do so, the judgment debtors be detained in civil prison as per
requirement of Order 21 Rule 32 of The Code of Civil Procedure, 1908 and the illegal
construction be removed at the cost of judgment debtors.

The amount of compensation amounting to Rs 20,000/- and costs of Rs.5000/- awarded to the
decree holder be also recovered from the judgment debtors by attachment and sale of their
property and the same be paid to the decree holder towards the satisfaction of the decree.

Verification

Verified that all the contents of decree execution petition are true and correct

to the best of my knowledge.

 Bibliography

BOOKS

1. Justice C.K.Takwani (Thakker), Civil Procedure (CPC) with Limitation Act (8th ed. E.Book
2017).
2. Sir Dinshaw Fardunji Mulla, Mulla’s the Code of Civil Procedure (19th ed. Lexis Nexis
2017).
3. D. N. Mathur, Code of Civil Procedure (3rd ed. Cent. Law Publications 2015).
4. Avtar Singh, Code of Civil Procedure (4th ed. Cent. Law Publications 2015).

Websites
1. http://www.legalserviceindia.com
2. http://www.scconline.com/
3. https://indiankanoon.org
4. https://legal-dictionary.thefreedictionary.com
5. https://definitions.uslegal.com/
6. http://www.legalcrystal.com