Execution of decree and obstruction to its execution

 Execution is the process by which a decree-holder enforces a decree through the civil court. The law on execution is contained mainly in Sections 36 to 74 of the Code of Civil Procedure, 1908, and the detailed procedure is laid down in Order 21of  CPC.

A decree may be executed by the court which passed it, or by the court to which it is transferred for execution under Section 38 CPC. The decree-holder initiates the process by filing an execution application under Order 21 Rules 10 and 11 CPC, after which the court adopts the mode of execution permitted by law.

Section 51 CPC recognizes the principal modes of execution, such as delivery of property, attachment and sale, arrest and detention in civil prison where permissible, appointment of a receiver, or any other suitable mode depending on the nature of the decree.

Obstruction to execution usually arises in decrees for possession of immovable property, when the decree-holder or auction purchaser is resisted in obtaining possession. Such cases are governed by Order 21 Rules 97 to 101 CPC.

If resistance or obstruction is caused without just cause by the judgment-debtor or by someone acting on his behalf, the court may remove the obstruction, put the decree-holder in possession, and in an appropriate case order detention in civil prison for a term up to thirty days under Section 74 CPC.

If the resistance is by a third person claiming an independent right, title, or interest, the executing court itself must adjudicate that claim under Order 21 Rule 101 CPC. The object of the provision is to avoid multiplicity of proceedings, and a separate suit on such questions is generally not maintainable.

The practical position, therefore, is simple: execution enforces the decree, and obstruction relating to delivery of possession is ordinarily decided within the execution proceeding itself.

District Judge interview answer

“Execution means enforcement of a decree through the civil court. The governing provisions are Sections 36 to 74 CPC and Order 21 CPC. The decree-holder files an execution application, and the court may execute the decree by delivery of property, attachment and sale, arrest and detention where permissible, appointment of receiver, or other suitable mode under Section 51of CPC. If obstruction arises, especially in delivery of possession, the remedy lies under Order 21 Rules 97 to 101 CPC, and the executing court itself decides the objection; where obstruction is without just cause, the court may also act under Section 74 CPC.”

Easy line to memorize

“Execution enforces the decree, and obstruction is decided in execution itself.”

Whether resistance to execution of decree by transferee pendente lite is maintainable? 

No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of property Act.
Supreme Court of India
Silverline Forum Pvt. Ltd vs Rajiv Trust And Another on 31 March, 1998

Citation; AIR1998SC1754.

https://www.lawweb.in/2018/08/leading-judgments-of-supreme-court.html

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