Code of Civil Procedure, 1908 (CPC)
Execution of a Decree for Specific Performance under Order XXI CPC
A decree for specific performance orders a party to do something: to execute a conveyance, to deliver title deeds, to complete a contract he agreed to complete. Money can be taken from a man, but an act cannot; so the Code provides two things instead, a coercive process against the person and his property under Order XXI Rule 32, and a substitutionary process under Order XXI Rule 34, by which the court executes the document itself when he will not. These notes cover both, together with the time for payment under Order XX Rule 12A and the enforcement of a decree against a corporation.
Execution by the kind of decree: money, specific acts and possession
1. The Coercive Process: Order XXI Rule 32
§ Order XXI Rule 32(1) and (5), CPC 1908 (in substance) (1) Where the party against whom a decree for the specific performance of a contract, or for an injunction, has been passed has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property, or, in the case of a decree for the specific performance of a contract or for an injunction, by his detention in the civil prison, or by the attachment of his property, or by both. (3) Where any attachment under sub-rule (1) has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing it which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. |
§ The two conditions in Rule 32(1) Coercive execution is not automatic. The court must find: • An opportunity of obeying the decree. The judgment-debtor must have been in a position to comply. Where performance depends on the decree-holder taking a step first, such as depositing the balance consideration, no opportunity has arisen until that step is taken. • Wilful failure to obey. The disobedience must be deliberate. Inability to perform, an honest inability to find the title deeds, or a genuine dispute about what the decree requires, is not wilful failure. • Both conditions must be established before detention or attachment is ordered, and the burden is on the decree-holder who seeks the coercive process. |
2. The Substitutionary Process: Order XXI Rule 34
§ Order XXI Rule 34, CPC 1908 (in substance) (1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument, and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver it to the Court. (2) The Court shall cause the draft to be served on the judgment-debtor, together with a notice requiring him to file any objections within such time as the Court fixes. (3) and (4) Where objections are filed, the Court shall consider them, and after hearing the parties shall make such alterations, if any, in the draft as it thinks fit, and shall then deliver it to the decree-holder. (5) The decree-holder shall deliver the document, after it has been duly stamped, to the Court, and the Court shall execute it or cause it to be executed, and the document shall have the same effect as if it had been executed by the judgment-debtor himself. |
Rule 34 is the provision that makes a specific performance decree effective in practice, and it is the one most often overlooked. Its logic is simple: since the point of the decree is a conveyance, the court supplies the signature the judgment-debtor withholds. Three consequences follow. The decree-holder must prepare a draft in accordance with the decree, so the decree's terms fix what can be executed. The judgment-debtor is heard on the draft, and the court settles it. And the document, once executed by or through the court and duly stamped, has the same effect as if executed by the judgment-debtor, so the title passes without his participation. The stamp duty is payable by the decree-holder in the first instance, and registration, where required by the Registration Act, 1908, follows in the ordinary way.
3. The Money Side of a Specific Performance Decree
§ Order XX Rule 12A and the time for payment Order XX Rule 12A provides that where a decree is for the specific performance of a contract for the sale or lease of immovable property, ordering the payment of the purchase money or other sum by the purchaser or lessee, the decree shall specify the period within which the payment is to be made. The provision matters because a specific performance decree is usually conditional and reciprocal: the vendor conveys, the purchaser pays. Until the purchaser pays or deposits within the period fixed, the vendor is not in default, and there is therefore no opportunity of obeying within Rule 32(1). Where the purchaser fails to pay within the time fixed, the position is governed by the decree and by Section 28 of the Specific Relief Act, 1963, under which the vendor may apply in the same suit for rescission of the contract, or for an extension of time. The application lies to the court that passed the decree, and not by a fresh suit. |
4. Enforcement Against a Corporation
Order XXI Rule 32(2) provides that where the party against whom such a decree has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation, or, with the leave of the court, by the detention in the civil prison of the directors or other principal officers of the corporation, or by both. Two points follow: the primary process against a corporation is attachment of its property, since a company cannot be imprisoned; and detention of its officers requires the leave of the court, which is granted only where their personal responsibility for the disobedience is established.
5. The Processes Compared
Basis | Rule 32: the coercive process | Rule 34: the substitutionary process |
|---|---|---|
What it does | Compels the judgment-debtor to perform, by attaching his property or detaining him | Dispenses with him: the court executes the document itself |
Condition | An opportunity to obey, and wilful failure to obey | Neglect or refusal to obey a decree for the execution of a document or endorsement of an instrument |
Procedure | Application for attachment or detention; the court records its satisfaction of the two conditions | The decree-holder files a draft; it is served with notice; objections are heard; the court settles and executes it |
Outcome | Performance by the judgment-debtor, or sale of the attached property after six months with compensation to the decree-holder | A document having the same effect as if executed by the judgment-debtor |
When each is used | Where the act cannot be done by anyone but the judgment-debtor, or as pressure | Where the act is the execution of a document, which is the ordinary case in a sale of immovable property |
Rule 32(5) | The court may direct the act to be done by the decree-holder or a person appointed, at the judgment-debtor's cost, the expenses being recoverable as part of the decree | Not applicable; Rule 34 is itself a form of doing the act through the court |
6. Landmark Points
- Order XXI Rule 32(1). Coercive execution requires an opportunity of obeying the decree and wilful failure to obey it.
- Order XXI Rule 32(3) and (4). An attachment that has remained in force for six months may lead to sale and compensation; otherwise the attachment ceases.
- Order XXI Rule 32(5). The court may direct the act to be done by the decree-holder or a person appointed, at the judgment-debtor's cost, the expenses being recoverable as if included in the decree.
- Order XXI Rule 34. Where a decree is for the execution of a document, the court settles the draft and executes it, and the document has the same effect as if executed by the judgment-debtor.
- Order XX Rule 12A. A decree for specific performance of a contract for sale or lease of immovable property must specify the period for payment of the purchase money.
- Section 28, Specific Relief Act, 1963. Where the purchaser fails to pay within the time fixed, the vendor applies in the same suit for rescission or the purchaser for extension; no fresh suit lies.
7. Frequently Asked Questions
How is a decree for specific performance executed?
By the coercive process under Order XXI Rule 32, that is, attachment of the judgment-debtor's property or his detention in civil prison or both, where he had an opportunity to obey and wilfully failed; and by the substitutionary process under Rule 34, where the court settles and executes the document itself.
What must be shown before detention or attachment under Rule 32?
Two things: that the judgment-debtor had an opportunity of obeying the decree, and that he wilfully failed to obey it. Inability to perform, or a genuine dispute about what the decree requires, is not wilful failure, and the burden lies on the decree-holder.
What happens if the judgment-debtor refuses to execute the sale deed?
Order XXI Rule 34 applies. The decree-holder files a draft in accordance with the decree; it is served on the judgment-debtor with notice to file objections; the court hears the objections, settles the draft, and executes the document, which then has the same effect as if executed by the judgment-debtor.
Must the purchaser pay before seeking execution?
Ordinarily yes. Order XX Rule 12A requires the decree to specify the period within which the purchase money is to be paid, and a specific performance decree is reciprocal, so until the purchaser pays or deposits within that period the vendor is not in default and no opportunity of obeying has arisen.
What if the purchaser does not pay within the time fixed?
The vendor may apply in the same suit under Section 28 of the Specific Relief Act, 1963 for rescission of the contract, and the purchaser may apply for extension of time. The application lies to the court that passed the decree, and a fresh suit is not required.
How is such a decree enforced against a company?
Under Order XXI Rule 32(2), by attachment of the property of the corporation, or, with the leave of the court, by the detention in civil prison of its directors or other principal officers, or by both. Attachment is the primary process, and leave for detention requires personal responsibility to be established.
What happens to property attached under Rule 32?
If the attachment has remained in force for six months and the judgment-debtor has still not obeyed, the decree-holder may apply to have the property sold, and out of the proceeds the court may award him such compensation as it thinks fit, paying the balance to the judgment-debtor. Otherwise the attachment ceases under Rule 32(4).
8. Related Topics in This CPC Series
- Execution of an Injunction Decree
- Execution of a Possession Decree
- Modes of Execution under Section 51
- Execution of Decrees: Sections 36 to 74 and Order XXI