§ Order XXI Rule 10, CPC 1908

Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree, or to the officer (if any) appointed in this behalf, or, if the decree has been sent under the provisions hereinbefore contained to another Court, then to such Court or to the proper officer thereof.

§ The persons entitled to apply

Execution may be sought by:

• The decree-holder, that is, under Section 2(3), the person in whose favour a decree has been passed or an order capable of execution has been made.

• A transferee of the decree. Under Order XXI Rule 16, where a decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution to the court which passed it, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder. Notice must be given to the transferor and the judgment-debtor, and the decree is not executed until the court has heard their objections.

• The legal representative of a deceased decree-holder, since the right to execute survives, and the representative stands in his place.

• One of several joint decree-holders. Under Order XXI Rule 15, where a decree has been passed jointly in favour of more persons than one, any one or more of them may, unless the decree imposes a condition to the contrary, apply for execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. The court may make such order as it deems necessary to protect the interests of the persons who have not joined.

• A person claiming under the decree-holder, such as a receiver appointed in his estate, or an official assignee in insolvency.

§ The transferee of a decree: two cautions

Notice is mandatory. Under Order XXI Rule 16, notice of the transferee's application must be given to the transferor and the judgment-debtor, and the decree shall not be executed until the court has heard their objections. Execution on a transferred decree without notice is liable to be set aside.

The transferee court cannot entertain it. By Section 42(4)(a), a court to which a decree has been sent for execution has no power to order execution at the instance of a transferee of the decree. That application must be made to the court which passed the decree.

§ Order XXI Rule 11(2), CPC 1908 (in substance)

Every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a 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 has been preferred from the decree; (e) whether any, and if any what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree; (f) whether any, and if any what, previous applications have been made for the execution of the decree, the dates of such applications and their results; (g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed; (h) the amount of the costs (if any) awarded; (i) the name of the person against whom execution of the decree is sought; and (j) the mode in which the assistance of the Court is required.

§ Why the particulars matter

The list is not bureaucratic. Each particular answers a question the court must decide before issuing process: clause (d) tells it whether an appeal may affect the decree; clause (e) discloses payments or adjustments, which connects to Rule 2; clause (f) discloses earlier applications, which bears on limitation under Article 136 and on the notice requirement in Rule 22(1)(a); and clause (j) identifies the mode of execution sought, which determines what process issues.

Rule 11(3) requires the applicant, where he seeks the attachment of movable property not in the judgment-debtor's possession, to annex an inventory of the property to be attached, containing a reasonably accurate description; and where immovable property is to be attached, to furnish a description sufficient to identify it, with boundaries or survey numbers.

Rules 12 and 13 add further requirements: for an application to attach movable property not in the judgment-debtor's possession, and for an application to attach immovable property, the applicant must furnish the prescribed particulars, failing which the application may be rejected.

§ Order XXI Rule 11(1), CPC 1908

Where a decree is for the payment of money, the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant, if he is within the precincts of the Court.

§ The four conditions for an oral application

All must be satisfied; the provision is narrow and exceptional:

• The decree must be for the payment of money. No other kind of decree may be executed on an oral application.

• The application must be made at the time of the passing of the decree, not afterwards. The moment passes with the pronouncement.

• The judgment-debtor must be within the precincts of the court, since the whole object is to secure a debtor who is physically present and might otherwise leave.

• The only mode available is arrest. The court may order immediate execution by arrest prior to the preparation of a warrant; no other mode may be pursued orally.

Admission of the application

Order XXI Rule 17

The court examines the application; where it does not comply with Rules 11 to 14, the court shall allow the defect to be remedied then and there or within a fixed time, and on compliance the application is admitted and registered

Cross-decrees and cross-claims

Order XXI Rules 18, 19 and 20

Where the parties hold cross-decrees for money, execution is taken out only by the holder of the larger decree for the balance; cross-claims under the same decree are similarly set off

Simultaneous execution against person and property

Order XXI Rule 21

The court may, in its discretion, refuse execution simultaneously against the person and the property of the judgment-debtor

Notice to show cause

Order XXI Rule 22

Notice must issue where execution is applied for more than two years after the date of the decree, or against the legal representative of a party, or by an assignee of the decree, or against the assignee or receiver in insolvency where the party has been adjudged insolvent

Procedure after notice

Order XXI Rules 23 and 23A

Where the person served does not appear or shows no cause, the court shall order execution; where he shows cause, the court considers it and makes such order as it thinks fit

Stay of execution

Order XXI Rules 26 to 29

The executing court may stay execution for a reasonable time to enable the judgment-debtor to apply to the court that passed the decree or to an appellate court, on such terms and security as it thinks fit

§ The Rule 22 notice

The notice requirement is a substantive protection, not a formality. Its occasions are defined: execution sought more than two years after the decree; execution against a legal representative; execution by an assignee of the decree; and execution against the assignee or receiver where a party has been adjudged insolvent.

The reason in each case is the same: the person to be proceeded against may have a good answer of which the court is unaware, whether payment in the interval, the limits of a representative's liability, or a dispute about the assignment.

Execution taken out without notice where the rule requires it is liable to be set aside, though Rule 23A allows the court, where it has issued process without notice, to proceed on the objections being heard, and irregularity is judged by whether the person affected was in fact prejudiced.

§ Article 136, Limitation Act, 1963

Twelve years for the execution of any decree, other than a decree granting a mandatory injunction, or order of any civil court, running from when the decree or order becomes enforceable, or, where the decree directs payment or performance at a stated date or at recurring periods, when default in making the payment or performance occurs.

For a decree granting a mandatory injunction, the period is three years from the date the decree becomes enforceable.

Section 5 of the Limitation Act does not apply to applications for execution, so delay beyond the period cannot be condoned on sufficient cause; but the provisions on exclusion of time in Sections 12 to 15 do apply, and a fresh period does not run from each successive application.