Original petitions and execution petitions
Drafting, Pleading and Conveyance · Unit II · Topic 8 of 19 · 6 min read
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1. Original petitions
Section 26 CPC requires a suit to be instituted by plaint “or in such other manner as may be prescribed”. Many statutes prescribe a petition instead. Common examples:
- Petitions under the Hindu Marriage Act, 1955: divorce under section 13, divorce by mutual consent under section 13B, restitution of conjugal rights under section 9. Section 20 requires every such petition to state the facts distinctly and to be verified in the manner of a plaint.
- Petitions under the Guardians and Wards Act, 1890 for appointment of a guardian.
- Petitions under the Indian Succession Act, 1925 for probate, letters of administration or a succession certificate.
- Petitions under the Arbitration and Conciliation Act, 1996, for example to set aside an award under section 34.
An original petition is drafted like a plaint (parties, facts, jurisdiction, prayer, verification), but it must also contain whatever the special statute requires, in the words of that statute. The CPC applies so far as the statute does not provide otherwise.
2. Model: petition for a succession certificate
A succession certificate under Part X of the Indian Succession Act, 1925 lets the heir of a deceased person collect debts and securities (bank deposits, shares, debts owed to the deceased). Section 371 vests jurisdiction in the District Judge where the deceased ordinarily resided or, if he had no fixed residence, where any of his property is found. Section 372(1) lists what the petition must state, and requires it to be signed and verified as a plaint is.
IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE, DHARWAD P. & S.C. No. ____ of 2026
Petitioner: Smt. Geeta S. Joshi, wife of late Suresh K. Joshi, aged about 58 years, residing at No. 4, Kalyan Nagar, Dharwad.
PETITION UNDER SECTION 372 OF THE INDIAN SUCCESSION ACT, 1925 FOR GRANT OF A SUCCESSION CERTIFICATE
- Time of death (s. 372(1)(a)). Sri Suresh K. Joshi died at Dharwad on 2 February 2026. The death certificate is produced.
- Residence (s. 372(1)(b)). At the time of his death he ordinarily resided at No. 4, Kalyan Nagar, Dharwad, within the jurisdiction of this Court.
- Family (s. 372(1)(c)). He was a Hindu governed by the Hindu Succession Act, 1956. He left behind his widow (the petitioner), his son Sri Kiran S. Joshi, aged 32, residing at Pune, and his daughter Smt. Anjali Kulkarni, aged 29, residing at Hubballi. His mother predeceased him. These are his only Class I heirs.
- Right claimed (s. 372(1)(d)). The petitioner, as a Class I heir, claims the certificate for herself. The other heirs have given written consent, produced with the petition, and are shown as respondents for notice.
- No impediment (s. 372(1)(e)). The deceased left no will. No probate or letters of administration have been granted, and no other application for a certificate is pending. There is no impediment under section 370 or any other law.
- Debts and securities (s. 372(1)(f)). Fixed deposit No. XXXX with State Bank of India, Dharwad Main Branch, of Rs. 6,00,000, and 500 equity shares held in demat account No. XXXX, of an approximate value of Rs. 2,10,000; total Rs. 8,10,000.
- Court fee on the value of the debts and securities is paid.
Prayer. Grant the petitioner a succession certificate in respect of the debts and securities in paragraph 6, with power to receive interest and dividends and to negotiate or transfer the securities.
Sd/- Petitioner. Sd/- Advocate. Verification as in Order VI Rule 15.
3. Execution petitions
Order XXI Rule 10 requires the decree-holder to apply to the court that passed the decree (or the court to which it has been transmitted). Except for an oral application for immediate arrest when a money decree is passed (Rule 11(1)), every application must be in writing, signed and verified, and contain, in tabular form, the particulars in Rule 11(2):
- (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;
- (e) whether any payment or adjustment has been made after the decree;
- (f) previous applications for execution, their dates and results;
- (g) the amount with interest due, and particulars of any cross-decree;
- (h) the costs awarded;
- (i) the person against whom execution is sought;
- (j) the mode of execution: delivery of property, attachment and sale, arrest and detention, appointment of a receiver, or otherwise.
Rule 11A requires an application for arrest to state the grounds, or to be accompanied by an affidavit stating them. Rule 12 requires an inventory of movable property not in the judgment-debtor’s possession, and Rule 13 a description of immovable property sufficient to identify it, at the foot of the application.
Limitation. Under Article 136 of the Limitation Act, 1963, an execution petition for any decree (other than one granting a mandatory injunction) lies within twelve years of the decree becoming enforceable.
Delay in execution is a well-known failing. In Rahul S. Shah v. Jinendra Kumar Gandhi, 2021 INSC 270, (2021) 6 SCC 418, the Supreme Court issued directions to executing courts, including that execution proceedings should be disposed of within six months of filing, extendable only with reasons recorded.
IN THE COURT OF THE ____ CIVIL JUDGE AT DHARWAD Ex. P. No. ____ of 2027 in O.S. No. 512 of 2026
Sri Anil V. Desai … Decree-holder v. Sri Mahesh S. Kulkarni … Judgment-debtor
- Number of suit: O.S. No. 512 of 2026 on the file of this Court.
- Names of parties: as above.
- Date of decree: 15 June 2027.
- Appeal: none has been preferred.
- Payment or adjustment after decree: none.
- Previous applications for execution: none.
- Amount due: Rs. 4,67,956 decreed, with interest on Rs. 4,00,000 at the rate decreed from 30 November 2026 to the date of this petition, calculated in an annexed statement.
- Costs awarded: Rs. 31,500.
- Person against whom execution is sought: the judgment-debtor named above.
- Mode of execution: by attachment and sale of the judgment-debtor’s immovable property described in the Schedule, under Order XXI Rule 54.
Schedule: residential house property bearing CTS No. 1234, Saptapur, Dharwad, measuring 30 × 40 feet, bounded on the East by …, West by …, North by …, South by ….
Prayer: Attach and sell the Schedule property and pay the decree-holder the amount due with costs of execution. Sd/- Decree-holder. Sd/- Advocate. Verification.
How this is examined
The syllabus lists “original petition” and “execution petition” separately, so the record should contain one of each (3 marks each). Good choices for the original petition: a mutual-consent divorce petition under section 13B of the Hindu Marriage Act, or a succession certificate petition. At the viva: why some proceedings begin by petition; the particulars of section 372; the particulars of Order XXI Rule 11(2); the limitation for execution; and the modes of execution.