The document discusses the process for filing an application for execution of a decree in court. It notes that only a decree holder, legal representative, authorized person, or transferee can apply for execution. The application must be filed in the court that passed the decree and include details of the case, decree, payments, and relief sought. Notice may need to be issued depending on the situation. Execution can be stayed if the judgment debtor shows sufficient cause and furnishes security or conditions set by the court.
The document discusses the process for filing an application for execution of a decree in court. It notes that only a decree holder, legal representative, authorized person, or transferee can apply for execution. The application must be filed in the court that passed the decree and include details of the case, decree, payments, and relief sought. Notice may need to be issued depending on the situation. Execution can be stayed if the judgment debtor shows sufficient cause and furnishes security or conditions set by the court.
The document discusses the process for filing an application for execution of a decree in court. It notes that only a decree holder, legal representative, authorized person, or transferee can apply for execution. The application must be filed in the court that passed the decree and include details of the case, decree, payments, and relief sought. Notice may need to be issued depending on the situation. Execution can be stayed if the judgment debtor shows sufficient cause and furnishes security or conditions set by the court.
The document discusses the process for filing an application for execution of a decree in court. It notes that only a decree holder, legal representative, authorized person, or transferee can apply for execution. The application must be filed in the court that passed the decree and include details of the case, decree, payments, and relief sought. Notice may need to be issued depending on the situation. Execution can be stayed if the judgment debtor shows sufficient cause and furnishes security or conditions set by the court.
The execution starts after a decree holder files an application in the court for the execution of the decree.
Order 21 rule 10-25 & 105-106 deal with the execution application.
1. Who may apply?
2. Decree Holder. 3. Any Legal representative of the decree holder i.e. Wife/Husband, Son/Daughter or Mother/father, if the decree holder is dead. 4. Any person authorised by the decree holder. 5. Any person claiming under decree holder. 6. Transferee of the decree holder, if the following are satisfied. a. The decree has been transferred in writing. b. The application for execution must have made to the court which passes decree. c. The notice and opportunity of heaving must be given to transferor & the judgment – debtor in case of assigned by transferrer. 7. One or more of the joint decree holders. 8. Any person having special interest.
2. Who cannot apply?
1. A person who is neither a decree holder nor has a right to execute a decree cannot apply. 2. A third party or a stranger
But a receiver can file the application who is appointed by court.
3. Against whom execution may be taken out?
1. The Judgment Debtor if he is alive 2. Legal representative of judgment debtor in case he is dead 3. Representative of or the person claiming under the judgment debtor. 4. Surety of the judgment debtor. 4. To whom the application is made? 1. To Court who passed the decree. 2. To transferee court 2
5. Content of application
Except in case of money decree. Every application for execution shall be in writing, signed & verified by the applicant. Further the application for execution shall contain all the necessary details needed by the court for enforcing the decree. The execution application must contain in tabular form the following particulars
(a) The number of the suit.
(b) The names of the parties.
(c) The date of the Decree.
(d) Whether any appeal is preferred from the decree
(e) Whether any payment or other adjustment is made.
(f) Whether any previous application is made for execution of decree.
(g) The amount with interest due upon the decree.
(h) The amount of costs (if any) awarded.
(i) Name of persons against whom execution of decree is sought.
(j) The mode in which assistance of court is required.
6. Form
The application for execution should be according to the Form no. 6 of appendix E to the first schedule of the code. In the interest of justice, the court shall admit the application for execution even if it is not in prescribed manner as given in form 6.
7. Procedure of Receiving Application
Admission
(Rule 17 deals with the application. If application is according to rule 11 to 14 so admitted
otherwise rejected by the competent court)
Hearing of application 3
(if party is default or ex-parte order is passed on the date fixed under Rule 105, in Rule 106 the court if satisfy change it.)
Notice for execution
(there is no notice in execution but under certain cases notice is issued.)
Procedure after Notice for Execution
(The court shall process the execution of the decree if the person to whom the notice issued didn’t turned up. But if the person appears and object for the execution, the court shall hear both the parties and pass the order as it deem fit.)
Certain Cases in which notice is issued for execution are as follows: -
1. If application is made after 2 years of decree.
2. If application is made against the legal representative of judgement debtor. 3. Where an application is made against surety. 4. Where is execution is sort to arrest due to payment of money.
8. Limitation of time: -
As the general rule limitation time for seeking execution of decree is 12 years from the date of decree. In Giridharilal v. Thakurdas, (AIR 1964 Ori. 170), it has been held that the initial onus is upon the decree-holder to show that the execution is within time. Where the application for execution is prima facie not barred by limitation it is for the judgment-debtor to show that the execution is time-barred. 4
STAY OF EXECUTION
Rule 26 talks about when court may stay the execution.
1. The executing court, on sufficient cause being shown and, on the judgement– debtor furnishing security or fulfilling such condition, as may be imposed on him, stay execution of a decree for a reasonable time. 2. The transferor court can stay the execution absolutely where as transferee court can stay the execution for reasonable time, to enable judgment debtor to apply to the transferor court or to the appellant court. 3. If judgement debtor apply for stay in execution so the transferee court must obtain: - a. Security from judgment debtor. b. Or impose such condition as it may think fit.
Krishna Singh v. Mathura Ahir, AIR 1982 SC 686, The Supreme Court has held that for stay of execution the following conditions need to be satisfied: -
(i) There must be two simultaneous proceedings in one court.
(ii) The proceedings are by judgement debtor against the decree holder and by decree holder against the judgement debtor
Rule 27:- says about the revival of execution proceedings
An order of restitution of property or the discharge of the judgment debtor made under rule 26 shall not present court to restart the execution proceedings.
Rule 29: - stay of execution pending suit.
Conditions: -
a. A proceeding in execution of the decree at the instance of the decree holder against the judgment debtor, and b. A suit at the instance of the judgment debtor against decree holder.
Object: - 5
I. To enable the judgment debtor and the decree holder to adjust their claims against each other. II. To prevent the multiplicity of execution proceedings.
This stay can be obtained only after furnishing security or fulfilling the condition imposed by court. But, to get the stay from the execution, the judgement debtor need to give strong ground in the court only than stay can be done.
References 1. C.K. Takwani- Code of Civil Procedure. 2. Lawmann’s Ready Reference on Civil Procedure Code,1908
