Introduction

Execution is the last stage of any civil litigation. There are three stages in litigation:

Institution of litigation.

Adjudication of litigation.

Implementation of litigation.

Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of the plaint. The decree
means operation or conclusiveness of judgment. Implementation of a decree will be done
only when parties have filed an application in that regard. A decree or order will be executed
by the court as facilitative and not an obligation. If a party is not approaching the court, then
the court has no obligation to implement it suo motu. A decree will be executed by the court
which has passed the judgment. In exceptional circumstances, the judgment will be
implemented by another court which is having competency in that regard.

Execution is the medium by which a decree-holder compels the judgment-debtor to carry out
the mandate of the decree or order as the case may be. It enables the decree-holder to recover
the fruits of the judgment. The execution is complete when the judgment-creditor or decree-
holder gets money or other thing awarded to him by judgment, decree or order.

Execution: Meaning

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. Simply “execution” means the process for enforcing or giving effect to the
judgment of the court. 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.

Illustration:

A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is the decree-
holder. B is the judgment-debtor, and the amount of Rs 10,000 is the judgment- debt or the
decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000 to A.
Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can recover
the said amount from B by executing the decree through judicial process. The principle
governing the execution of decree and orders are dealt with in Sections 36 to 74 ( substantive
law) and Order 21 of the code( procedural law).

Supreme Court in Ghanshyam Das v. Anant Kumar Sinha1 dealing with provision of the code
relating to execution of decree and orders, stated, “ so far as the question of executability of a
decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions
for dealing with it in all aspects. The numerous rules of Order 21 of the code take care of
different situations providing effective remedies not only to judgment-debtors and decree-
holders but also to claimant objectors, as the case may be. In an exceptional case, where
provisions are rendered incapable of giving relief to an aggrieved party inadequate measures
and appropriate time, the answer is a regular suit in the civil court.

Order XXI of the CPC which is the longest Order provides detailed provisions for making an
application for execution and how they are to be entertained, dealt with and decided.

Execution is the enforcement of a decree by a judicial process which enables the decree-
holder to realise the fruits of the decree passed by the competent Court in his favour. All
proceedings in execution commence with the filing of an application for execution. Such
application should be made to the Court who passed the decree or where the decree has been
transferred to another Court, to that Court. Once an application for Execution of decree is
received by the Court, it will examine whether the application complies with the requirements
of Rules 11 to 14. If they complied with, the Court must admit and register the application.

It is only the execution, which reveals and signifies the importance of the
decrees to be passed and the pedestal of the Court and sanctity of the document.
As such, the decrees are required to be executed with force, so that the Decree
Holder having a document containing declaration of his rights may not feel
cheated or helpless having earned no fruits of the list got settled by him from
the Court even after spending decades altogether.
This Order 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.

Which Court may Execution a Decree?

1
(1991) 4 SCC 379
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 Court.

Mode of executing decree

The substantive provision under Section 51 of Cpc,1908 merely enumerates different

modes of execution in general terms. The Code of civil procedure allows more than
one mode of execution of decrees. The code lays down following modes for the
execution of different types of decrees:

a) By delivery of any property specifically decreed. Property may be movable or

immovable [Section 51(a)].

b) By attachment and sale of the property or by sale without attachment of the

property [Section 51(b)].

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

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

e) 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).

Sale of property as a mode of execution of decree

A decree may be executed by attachment and sale or sale without attachment of any property.
Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of
movable and immovable property. Before ordering sale the court has to decide whether it is
necessary to bring entire attached property to sale or such portion thereof as may seem
necessary to satisfy the decree. If the property is large and decree to be satisfied is small the
court must bring to sale only such portion of the property the proceeds of which would be
sufficient to satisfy the claim of the decree holder.

General Rules

Power of Court : Rules 64 - 65

Order 21 Rule 64 provides ”Any Court executing a decree may order that any property
attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the
decree shall be sold, and the proceeds of sale, or a sufficient portion thereof, shall be paid to
the party entitled under the decree to receive the same.”

Under this provision the executing Court derives jurisdiction to sell properties attached only to
the point at which the decree is fully satisfied. The words ‘necessary to satisfy the decree’
clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale
proclamation. In other words, where the sale fetches a price equal to or higher than the amount
mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should
be held and the court should stop at that stage.

Order 21 Rule 65 provides "Save as otherwise prescribed, every sale in execution of a decree
shall be conducted by an officer of the Court or by such other person as the Court may appoint
in this behalf, and shall be made by public auction in manner prescribed."

According to rule 65, every sale in execution of a decree shall be conducted by an officer of the
court by public auction, sale by asking offer through advertisement in Newspaper or otherwise
is barred and such a sale is nullity. There is a substantial distinction between the sale by calling
for offers through advertisement and the sale by public auction. An auction is held by public
competition wherein every bidder has the right to raise his own bid. The atmosphere therein
created by open bidding can tempt the bidder to raise his bid and thus enhanced price can be
fetched by the said mode. In a sale by tender, however no such opportunity is available to the
tenderer. Once he gives his offer that is final and cannot be raised, whereas in public auction
each bidder knows the bid of the other person, in the mode of sale by calling for offers of
tenders, none of the persons or tenderers know the price offered by the other.

Proclamation of Sale Rule 66 - 67

Order 21 Rule 66 provides that:- (1) Where any property is ordered to be sold by public
auction in execution of a decree, the court shall cause a proclamation of the intended sale to be
made in the language of such court.

(2) Such proclamation shall be drawn up after notice to the decree holder and the judgment debtor
and shall state the time and place of sale, and specify as fairly and accurately as possible—

(a) the property to be sold, or, where a part of the property would be sufficient to satisfy the
decree, such part;

(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an
interest in an estate or in part of an estate paying revenue to the government;

(C) any encumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) every other thing which the court considers material for a purchaser to know in order to judge
of the nature and value of the property:

Provided that where notice of the date for settling the terms of the proclamation has been given to
the judgment debtor by means of an Order under rule 54, it shall not be necessary to give notice
under this rule to the judgment debtor unless the court otherwise directs:

Provided further that nothing in this rule shall be construed as requiring the court to enter in the
proclamation of sale its own estimate of the value of the property, but the proclamation shall
include the estimate, if any, given, by either or both of the parties.

(3) Every application for an Order for sale under this rule shall be accompanied by a statement
signed and verified in the manner herein before prescribed for the signing and verification of
pleadings and containing, so far as they are known to or can be ascertained by the person making
the verification, the matters required by sub-rule (2) to be specified in the proclamation.

(4) For the purpose of ascertaining the matters to be specified in the proclamation, the court may
summon any person whom it thinks necessary to summon and may examine him in respect to any
such matters and require him to produce any document in his possession or power relating
thereto.

Order 21 Rule 67 :- (1) Every proclamation shall be made and published, as nearly as may be,
in the manner prescribed by rule 54, sub-rule (2).

(2) Where the court so directs, such proclamation shall also be published in the Official Gazette
or in a local newspaper, on in both, and the costs of such publication shall be deemed to be costs
of the sale.

(3) Where property is divided into lots for the purpose of being sold separately, it shall not be
necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in
the opinion of the court, otherwise be given.
The object of issuing a proclamation is twofold, firstly it protects the interest of the intending
purchasers by giving them all material information regarding the property to be sold, and
secondly, it protects the interest of the judgment-debtor by facilitating the fetching of proper
market price for his property and by preventing it from being knocked down at public auction for
a price much below the market price.

It is no doubt easy to draw the line between irregularity and illegality in an execution sale, but
where a substantial provision like Order XXI, Rule 66, is violated the sale should be regarded as
having been illegally conducted and would be void.

A sale conducted without publication of proclamation is not merely an irregularity but a nullity. It
is incumbent on the court to be scrupulous to the extreme. No action of the court or its officer
should be such as to give rise to the criticism that it was done in a casual manner.[6]

It is the duty of the court to ensure that the requirements of Rule 66 are complied with. It is also
desirable that every proclamation of sale shall be made by beat of drum or other customary mode.

Contents of proclamation:-

 Time and place of sale

 Property to be sold
 Revenue, if any, assessed upon the property;
 Encumbrance, if any, to which property is liable;
 Amount to be recovered;
 Details relating to property, such as title deed, length etc.

Time of Sale: Rule 68

Order 21 Rule 68 provides that No sale shall, without the consent in writing of the judgment
debtor, take place until after the expiration of at least thirty days in the case of immovable
property, and of at least fifteen days in the case of movable property from the date of
proclamation in the courthouse.

The only exception is in the case, where the property ordered to be sold is perishable or the
expense of keeping it in custody is likely to exceed its value.
Adjournment or stoppage of sale : Rule 69

Order 21 Rule 69 : (1) The court may, in its discretion, adjourn any sale hereunder to a specified
day and hour, and the officer conducting any such sale may in his discretion adjourn the sale,
recording his reasons for such adjournment:

Provided that, where the sale is made in, or within the precincts of, the court house, no such
adjournment shall be made without the leave of the court.

(2) Where a sale is adjourned under sub-rule (1) for a longer period than thirty days, a fresh
proclamation under rule 67 shall be made, unless the judgment debtor consents to waive it.

(3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including
the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his
satisfaction that the amount of such debt and costs has been paid into the court which ordered the
sale.

The Court is given discretionary power to postpone the sale to a specified day and hour, however,
if such sale is adjourned for more than thirty days, a fresh proclamation should be issued, unless
the judgment debtor waives it.

Waiver of sale proclamation implies waiver of an objection as to any of the defects apparent on
the proclamation. Whoever prays for adjournment of sale, fresh sale proclamation is needed
unless the judgment-debtor waives fresh sale proclamation.

This section also provides that the moment the amount specified in the sale proclamation for
recovery of which sale was ordered is realized, the sale of further item should be stopped.

Default by purchaser: Rule 71

Order 21 Rule 71: Any deficiency of price which may happen on a re sale by reason of the
purchaser’s default, and all expenses attending such re-sale, shall be certified to the court by the
officer or other person holding the sale, and shall, at the instance of either the decree holder or the
judgment debtor, be recoverable from the defaulting purchaser under the provisions relating to
the execution of a decree for the payment of money.
Where a resale has been occasioned by reason of the purchaser’s default, (i.e. due to the failure to
deposit the sale price) any deficiency of price and all expenses attending such resale shall be
certified to the court and shall be recoverable at the instance of either the decree-holder or the
judgment debtor from the defaulting purchaser.

When purchaser is not negligent then this rule won’t apply.This provision is salutary and has
been enacted with a view to minimize the hardship of the judgment-debtor or decree-holder
resulting from the auction-purchaser’s default. It also seeks to provide an expeditious remedy to
the aggrieved party (judgment-debtor or decree-holder), who has suffered due to the default of the
auction-purchaser. Therefore, if resale is not ordered because of the default of the auction
purchaser, this rule won’t be applied.

Principles of natural justice are applied to this rule. Before auction-purchaser is held liable under
this rule, he must be given notice and opportunity of hearing to show cause why an order adverse
to him should not be passed.

Restrictions to bid : Rules 72 – 73

Order 21 Rule 72 : Decree holder not to bid for or buy property without permission - (1) No
holder of a decree in execution of which property is sold shall, without the express permission of
the court, bid for or purchase the property.

(2) Where decree holder purchases, amount of decree may be taken as payment—Where a decree
holder purchases with such permission, the purchase money and the amount due on the decree
may, subject to the provisions of section 73, be set-off against one another, and the court
executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.

(3) Where a decree holder purchases, by himself or through another person, without such
permission, the court may, if it thinks fit, on the application of the judgment debtor or any other
person whose interests are affected by the sale, by Order set aside the sale; and the costs of such
application and order, and any deficiency of price which may happen on the re-sale and all
expenses attending it, shall be paid by the decree holder.
When decree holder does so with the permission of the court, he is entitled to a set off, but if he
does so without such permission, the court has discretion to set aside the sale upon the application
by the judgment-debtor, or any other person whose interests are affected by the sale.

This provision is intended to safeguard the interests of the judgment-debtor. The court will have
to be satisfied that without granting permission to the decree-holder, an advantageous sale cannot
otherwise be had. The decision to grant permission is administrative and not judicial. It is
therefore, not necessary for the court to pass a speaking order or to record reasons in support of
grant of leave to the decree holder to bid. But the order must reflect application of mind by
executing court.

Order 21 Rule 72A provides that mortagee is also forbidden to bid at sale without the leave of the
Court. If leave to bid is granted to such mortgagee, then the court shall fix a reserve price as
regards the mortgagee so that mortgagee may not take undue advantage by purchasing the
mortgaged property at a lower price and then pursuing other remedies to recover the balance of
the amount of the decree.

Order 21 Rule 73. No officer or other person having any duty to perform in connection with any
sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the
property sold.

In such case the sale will be hit by Section 64 of Cpc,1908.