The article is written by Tarini Aleti of Pendekanti Law College pursuing 3rd Year BA. LL.B, during her internship at Ledroit India.
Abstract:
Litigation, which begins with the filing of the suit and ends with the decree in further execution. This entire judicial process is divided into 3 stages: (A) the pre-trial, where suit is instituted, (B) the During-trial, in which the evidence, arguments, and witnesses are presented, and the final stage (C) Post-trial stage, i.e., where judgment, execution of decree, and appeal are dealt with. This article focuses on the 3rd stage exclusively on the execution of decrees, explaining its legal significance and procedure under the Code of Civil Procedure, 1908.
It has an in-depth understanding of the differences in terms of judgment, decree, and execution while illustrating each topic with practical examples. This article aims to explain the concept of execution in a clear and simplified manner, making it easily understandable to everyone, especially for readers seeking a basic yet structured understanding of what execution means and how the procedure for executing a decree operates under the Code of Civil Procedure, 1908.
Key words: Execution, Decree, Judgment, Post-judgment procedure, Judicial process
UNDERSTANDING THE INTERRELATIONSHIP BETWEEN JUDGEMENT, DECREE, AND EXECUTION:
It is generally understood that judgment is a powerful term, though it is a right; however, there is a term that is more powerful than judgment, i.e., execution. To understand our topic, let me provide a scenario.
Facts: A (who is the plaintiff) files a suit against B (defendant) alleging that B, his neighbour, is continuously causing nuisance and disturbing his peaceful enjoyment of property.
Now see the stages:
- A files the plaint.
- Further, B files the written statement and
- Then, after the proceedings where the evidence, witnesses, and arguments are heard.
- Now the judge examines facts, evidence, and law and writes his judgment.
Here, in judgment, the judge explains why he’s taking a certain decision. As in our case, if the judge has given judgment saying that B has caused a nuisance and should refrain from disturbing A based on evidence, arguments, and law.
Now, to understand judgment is merely a written document, It is essentially a reasoning and a decision.
A decree is a written declaration in which the rights of the parties are determined. “If the decree is given in favour of A, he becomes the decree-holder, while B, against whom it is passed, is the judgment-debtor.” So, in the present case, B is hereby permanently restrained from creating a nuisance against A. Therefore, A is the Decree-holder and B is the judgment debtor
So here, as per the judgment, if B complies with the decree, no further action is required, but despite the decree and judgment passed still B is still continuing to disturb.
Now, in this scenario, A applies for the execution of the decree, so that the court ensures B actually stops disturbing A.
In simple terms, A decree is based on the judgment; judgment precedes decree. However, a judgment and decree itself does not give the court the power to act; it explains what the court has decided. In a decree it determines the rights of the parties. In our case, Judgment: B is guilty of nuisance; he must stop disturbing A. Decree: B is hereby permanently restrained from creating nuisance against A.
Execution is enforcing or implementing the decree passed by the court. Here court can act. For that, A has to file the execution petition. So execution is initiated when the decree is not complied with by the judgment-debtor, then through execution court implements that decree.
Hence, though judgment is intellectually and legally powerful. Practically, it has no force unless executed. Judgment declares the rights, but execution delivers rights.
What if B complies with the judgment?
As per the judgment, B has been permanently restrained from disturbing A. Then, no execution is to be filed as B has obeyed the decree. So, when the decree becomes satisfied or discharged (i.e., when the judgment debtor obeys), the decree-holder can file a satisfaction memo under Order 21, Rule 2 of CPC, saying the decree has been satisfied
In this way, civil proceedings progress through the distinct stages of Trial → Judgment → Decree → Execution. Therefore, execution marks the culmination of the entire judicial process; it’s where justice on paper becomes justice in reality.
ABOUT DECREE
The legal term decree is derived from the Latin word “decretum,” meaning a decision which comes from the verb “Decernere,” meaning “to decide”. The term decree is defined under Sec 2(2) of the Civil Procedure Code, 1908, as:
(2) “decree” means the 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 3 *** section 144, but shall not include
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
This statutory definition of the decree can be divided into 3 distinct parts, i.e., the main part of the definition which gives the actual meaning of the term decree; its types and its inclusions and exclusions, i.e., the scope of the decree.
The main part of the definition clearly states that a decree is the formal expression of an adjudication, which is expressed by the court that conclusively determines the rights of the parties with regard to the suit.
Illustration: A files a suit against B alleging that B has unlawfully occupied A’s own property. After hearing the proceedings, examining the facts evidences the court declares that A is the rightful owner of the property.
This finding of the court, where it arrives at a decision, is known as adjudication.
NOTE: Don’t confuse the terms adjudication and judgment. Though they sound similar, they are different based on
Adjudication refers to the judicial determination of a particular issue or controversy. In a non-legal context, adjudication is an act to decide who is right between 2 parties. And the term adjudication is nowhere defined under CPC.
Judgement, on the other hand, is the formal statement of the court’s reasons and decision based on that adjudication. In simple terms, the reasons behind delivering such adjudication.
As in the given illustration. The court gave an adjudication that A is the rightful owner based on the evidence shown by A, i.e., original document and registration, sale deed, etc., and arguments. Hence, based on this evidence and arguments court drew the formal statement. The written reasoning and decision given by the judge is called a judgment.
The court formally expresses its final decision by ordering that B must vacate the land and deliver the possession to A. This conclusive determination of the rights of the parties is said to be known as a decree.
The types of Decree: the decree may be
- preliminary,
- final, or
- partly preliminary,
- partly final.
- Preliminary Decree: when the decree is determined before the disposition of the suit. The preliminary decree is given before the judgment is delivered.
In the case of Shankar Balwant Lokhande vs Chandrakant Shankar Lokhande, the Supreme Court observed that A preliminary decree is one which declares the rights and liabilities of the parties, leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are fully determined, and a decree is passed in accordance with such determination, which is final.
- Final Decree: the decree that disposes of the suit completely and determines the rights of the parties and settles the dispute. In the final decree, no issue that shall be determined is left over.
Illustration: A entered into the contract with B to construct a warehouse for Rs. 5,00,000/-. After A completed the construction, B refused to pay, alleging that the work was defective. Therefore, A filed a civil suit for recovery of money.
After hearing the arguments and going through facts and evidence court found that A has substantially performed his part of the contract. At least he is entitled to be paid at least a portion of the agreed amount. Hence, declared that A should be paid Rs. 2,50,000 immediately. This stage, where rights are declared but further inquiry is still required, is known as the Preliminary Decree.
Later, upon further proceedings and detailed inquiry, the court found that B had indeed proved minor defects in the construction. Taking this into account, the court decided to deduct a reasonable amount from the claim he actually needs to get. And further an additional Rs. 1,00,000/- towards compensation for delay and mental agony caused due to non-payment. Thus, the total amount payable to A was fixed at Rs. 4,20,000/-. At this stage, both parties accepted the decision, and B paid the decreed amount to A.
Here at this stage, both parties accepted the decision, and B paid the decreed amount to A. This conclusive adjudication, which completely disposed of the suit and left no issue pending, is the Final Decree.
SCOPE OF THE DECREE:
A. What is included within the scope of decree?
- Rejection of a Plaint (Order 7 Rule 11, CPC):
When a plaint is rejected on certain legal grounds such as lack of cause of action, undervaluation, bar of limitation, or non-payment of court fees etc, such rejection is deemed to be a decree.
Although there is no adjudication law treats it as decree so that it can allow the parites to file an appeal under section 96 of the CPC.
- Determination (section 144 Restitution)
When a decree or order is reversed or varied in appeal the party who has suffered i.e. Judgment debtor due to the execution of the decree can seek restitution i.e., to restore.
e.g., A filed suit against B. It was adjudicated that B has to pay back the amount as promised. However, through appeal, this order got reversed and directed A to refund the money to B this is known as a deemed decree.
B. When is it excluded?
1. Any adjudication appealable as an order: If a decision is of such a nature that an appeal lies from it as an order under Section 104 or Order XLIII of the CPC, it is not treated as a decree.
2. Order of Dismissal for Default:
When a case is dismissed for non-appearance of the plaintiff (Order IX Rule 8 CPC) or for failure to take procedural steps, such dismissal does not amount to a decree since the rights of the parties are not judicially determined.
About Execution:
The term “execution” in law comes from the Latin word “ex sequi,” meaning “to follow out” or “to perform”. As we have discussed (supra) it is the last stage of litigation, hence the implementation of litigation is known as execution.
After the judgment is delivered and the decree is served to make the judgment debtor obey and comply with that decree, execution is passed. Therefore, it is known as the Post-judgment procedure as it is rendered after the judgment.
PROCEDURE OF POST POST-JUDGMENT DECREE
Courts that can execute decree
Sec 37 of CPC provides about the courts which can execute the decree:
- Court of the first instance
- Court that to which the decree is transferred
The procedure for execution is governed by Sections 36 to 74 and Order XXI of the Code of Civil Procedure, 1908.
1. Filing of Execution Application
The process commences with a written application (Execution Petition) filed either in the court that originally passed the decree or the court to which the decree has been transferred for execution under Section 38 and Section 39 CPC.
The application must contain essential particulars such as:
- Suit number, date, and details of the decree
- Names of the decree-holder and judgment-debtor
- Any appeal preferred or pending
- The amount due (if any)
- The specific mode of execution sought (attachment, sale, arrest, delivery of property, etc.)
Upon filing, a lodging number is assigned, and the registry reviews the application for defects within three weeks of filing.
2. Removal of Defects
If any defects are found, the decree-holder is required to rectify them within one week from the date of notification and obtain certification from the registry that the application is in order.
Once the registry is satisfied that the petition complies with procedural requirements, it is given a final number, making it ready for judicial consideration.
3. Issuance of Notice to Judgment-Debtor (Order XXI Rule 22)
After numbering, the registry issues a show-cause notice to the judgment-debtor, but only in the following situations:
- The execution petition is filed after two years from the date of the decree, or
- It is filed against a legal representative, assignee, or receiver of the judgment-debtor.
The notice directs the judgment-debtor to appear and show cause why the decree should not be executed against him. The notice is generally issued within two weeks of the final numbering of the application.
If the judgment-debtor fails to appear or fails to satisfy the court, the court may proceed to execute the decree by issuing a Warrant of Sale or Warrant of Attachment.
If objections are raised, the court hears and decides them—usually within four to eight weeks—depending on the nature of the claim or resistance.
4. Objections and Determination by Court
Under Section 47 CPC and Order XXI Rules 58–106, the judgment-debtor or any third party whose rights are affected may raise objections to the execution. The executing court, however, cannot go behind the decree; its role is limited to ensuring that the decree is properly executed.
Once all objections are heard and decided, the decree-holder may request for attachment of property as a step preceding the sale. Though a sale can take place without attachment, such attachment safeguards the decree-holder’s interest. This stage generally takes two weeks after objection disposal.
5. Warrant of Attachment and Public Proclamation
Upon satisfaction that execution is warranted, the court issues a Warrant of Attachment for the immovable property of the judgment-debtor.
The warrant is affixed conspicuously at the property site and the Collector’s office (if it involves revenue land) and is publicly proclaimed, often by beating drums or similar means, to notify the public of the attachment.
This process is typically completed within two weeks of the warrant’s issuance.
6. Warrant of Sale and Public Auction
Based on the Bailiff’s report, the registry issues a Warrant of Sale authorizing the bailiff to conduct a public auction of the attached property.
The sale must be conducted transparently, as per the details and date specified in the warrant, and the bailiff is required to report back to the court certifying how the sale was executed or explaining reasons for non-execution.
This stage usually takes around two weeks from the bailiff’s report submission.
CONCLUSION:
Execution is the final and most consequential stage of civil litigation: it transforms judicial pronouncements from paper into reality. While judgment and decree declare and define rights, execution enforces them, ensuring that the decree-holder actually obtains the relief awarded. The Code of Civil Procedure, through Sections 36 to 74 and Order 21, lays down clear rules for how a court should carry out a decree. It ensures that the person in whose favour the decree is passed (the decree holder) receives proper enforcement of their rights. At the same time, it also protects the person against whom the decree is made (the judgment-debtor) by giving them fair chances to raise objections.
In simple terms, the law tries to keep a fair balance between both sides — making sure justice is not only done but done fairly.
