Execution: general principles, the executing court and transfer of decrees

1. Basic terms

• Decree-holder (section 2(3)): a person in whose favour a decree has been passed or an order capable of execution has been made.
• Judgment-debtor (section 2(10)): a person against whom such a decree or order has been passed.
• Legal representative (section 2(11)): a person who in law represents the estate of a deceased person, including an intermeddler. A decree may be executed against the legal representative of a deceased judgment-debtor, but only to the extent of the property of the deceased that has come to his hands (sections 50 and 52).
• Transferee (section 49): a transferee of a decree holds it subject to the equities that the judgment-debtor might have enforced against the original decree-holder. He applies for execution under Order XXI rule 16.

2. Which court executes? (sections 37 and 38)

A decree may be executed either by the court which passed it or by the court to which it is sent for execution (section 38). By section 37, “the court which passed a decree” includes:

• where the decree was passed in appeal, the court of first instance; and
• where the court of first instance has ceased to exist or to have jurisdiction, the court which would have jurisdiction to try the suit if it were filed when the execution application is made. The Explanation added in 1976 says the court of first instance does not lose jurisdiction merely because the area has been transferred to another court; both courts can execute.

3. Transfer of decrees (sections 39 to 46)

On the decree-holder's application, the court which passed the decree may send it for execution to another court of competent jurisdiction (section 39(1)) if:

• (a) the judgment-debtor actually and voluntarily resides, carries on business or personally works for gain within that court's jurisdiction; or
• (b) he has insufficient property within the jurisdiction of the decree court and has property within the other court's jurisdiction; or
• (c) the decree directs sale or delivery of immovable property outside the decree court's jurisdiction; or
• (d) the decree court, for other reasons recorded in writing, considers that the other court should execute it.

The court may also, of its own motion, send the decree to any subordinate court of competent jurisdiction (section 39(2)). A court is competent if it could have tried the suit when the application for transfer is made (section 39(3)). Since 2002, section 39(4) makes it clear that the decree court cannot itself execute against a person or property outside its territorial jurisdiction; it must transfer the decree.

• Another State (section 40): the decree is sent to the court there and executed under the rules in force in that State.
• Certificate (section 41): the transferee court certifies the result of execution, or the reasons for failure, to the transferor court.
• Powers of the transferee court (section 42): the same powers as if it had passed the decree, including punishing obstruction, executing against legal representatives and attaching decrees. It cannot order execution at the instance of a transferee of the decree, or, in a decree against a firm, grant leave to execute it against a person other than those already made liable by Order XXI rule 50(1)(b) and (c) (section 42(4)).
• Foreign decrees (sections 43 to 45): decrees of superior courts of a reciprocating territory notified by the Central Government may be executed in India as if passed by the District Court, on filing a certified copy (section 44A), subject to the exceptions in section 13. Decrees of non-reciprocating countries require a fresh suit on the foreign judgment.
• Precepts (section 46): on the decree-holder's application the decree court may issue a precept to another court to attach the judgment-debtor's property there, for a period of up to two months unless extended.

4. Section 47: questions for the executing court

All questions arising between the parties to the suit (or their representatives) and relating to the execution, discharge or satisfaction of the decree must be decided by the executing court and not by a separate suit (section 47(1)). A plaintiff whose suit was dismissed and a defendant against whom it was dismissed are parties (Explanation I), and an auction-purchaser is deemed a party, so questions about delivery of possession to him fall under section 47 (Explanation II). The object is to provide a cheap and quick remedy and to prevent a fresh round of litigation.

The executing court cannot go behind the decree. It must take the decree as it stands and cannot question its correctness, even if it is wrong in law or fact. The one exception is a decree that is a nullity. In Kiran Singh v. Chaman Paswan, 1954 INSC 45, AIR 1954 SC 340, the Court held that a decree passed by a court without inherent jurisdiction is a nullity and its invalidity may be set up wherever and whenever it is sought to be enforced, even in execution. Applying this in Sunder Dass v. Ram Prakash, 1977 INSC 67, (1977) 2 SCC 662, the Court said the executing court may refuse to execute a decree only if it is a nullity for want of inherent jurisdiction; a mere error, however gross, does not make it so.

5. The application for execution (Order XXI)

• Payment out of court (rules 1 and 2). Money under a decree may be paid into the executing court, sent by postal money order or through a bank, or paid out of court. A payment or adjustment out of court must be certified to the court; an uncertified payment is not recognised by the executing court (rule 2(3)).
• The application (rules 10 to 14). The decree-holder applies to the court that passed the decree or to the transferee court (rule 10). A money decree may be executed on an oral application made at the time of passing the decree, by arrest of a judgment-debtor present in court (rule 11(1)). Otherwise the application is in writing, signed and verified, in tabular form, stating the particulars of the decree, payments, previous applications and the mode of assistance required (rule 11(2)).
• Notice to show cause (rule 22). Notice must issue where the application is made more than two years after the decree, or against the legal representative of a party, or under section 44A, or against an assignee or receiver of an insolvent party.
• Stay (rules 26 to 29). The transferee court may stay execution for a reasonable time so the judgment-debtor can approach the decree court or appellate court (rule 26); and execution may be stayed where a suit by the judgment-debtor against the decree-holder is pending (rule 29).

Limitation. An application for execution of any decree (other than one for a mandatory injunction) must be made within twelve years from the date the decree becomes enforceable (Article 136, Limitation Act). A decree for a perpetual injunction may be enforced at any time. A decree for a mandatory injunction must be enforced within three years (Article 135). Section 5 does not apply to applications under Order XXI.

6. Delay in execution: the Supreme Court's directions

The difficulties of a decree-holder are often said to begin only after he has obtained a decree. In Rahul S. Shah v. Jinendra Kumar Gandhi, 2021 INSC 270, (2021) 6 SCC 418, the Court issued directions to the trial and executing courts. Among them: in suits for possession, the trial court should examine the parties under Order X to find out third-party interests in the property and frame a clear, executable decree; the executing court must decide execution proceedings within six months of filing, extending only with reasons; and frivolous objections should be met with costs. In Periyammal v. V. Rajamani, 2025 INSC 329, the Court found that these directions were not being followed and directed all High Courts to collect information from the district judiciary on the pendency of execution petitions and to ensure their disposal in time.

How this is examined

“Execution of decree” appears as a six-mark note (August 2024): define execution, the executing court (sections 37 and 38), transfer (section 39), section 47 and Article 136. A ten-mark question on execution usually asks for the modes of execution, which are dealt with in the next note; begin such an answer with a paragraph from this one. A problem asking whether a judgment-debtor can challenge the decree in execution is answered with Kiran Singh and Sunder Dass.