Short notes on Preliminary Decree

Execution is dealt with in Sections 36 to 74 and Sections 144, 146 and 148 CPC. Order 21 of CPC deals with the execution exclusively.

Chapter 16 of A.P. Civil Rules of Practice consisting of Rules 205- 285 deal with execution. Articles 125-129 and 134 to 137 of the Limitation Act deal with the limitation in respect of the execution proceedings. The above provisions are the relevant provisions which are to be looked into while dealing with the execution petitions or applications.

A decree can be executed in the court which passed the decree is the general proposition.

However Section 37 of CPC includes some other courts also in the definition of a court which passed the decree. The first limb of it states that when one is referring to a decree passed by an appellate court it includes the trial court which passed the original decree.

It also includes a court whose jurisdiction is subsequently transferred, when there is a transfer of jurisdiction from the court which passed the decree to a court which is newly constituted or a pre-existing court, subsequent to passing of the decree.

The same Section also clarifies that the execution can be taken in the court which has originally passed the decree or the court to which the jurisdiction is transferred subsequently. There is a sort of misconception in the minds of some of the advocates, that when there is a transfer of jurisdiction to another court, the decree has to be got transferred to that court before execution can be instituted therein.

But it is not so. Section 37 enables filing of an Execution Petition directly in the court to which a decree is transmitted by the court which passed it on application under Section 39 of CPC.

Execution of decree in small Cause suits, a court which is having the combined jurisdiction, original and small cause jurisdiction is treated as two separate courts for the purpose of execution.

Small cause decrees can directly be executed only against movable property and not against the immovable property. In case execution proceedings are to be taken against the immovable property, the small cause decree has to be transferred to a court exercising original jurisdiction or to any other court.

Till such transfer is made, the execution cannot be made against the immovable property in case of small cause decree.

Any sole decree-holder and all the joint decree-holders jointly can file the execution petition.

However, in case of joint decree-holders, one of them can also file the execution petition, with the permission of the court and the court is to make such orders as are required to protect the interests of the other decree- holders who have not joined in executing the decree.

The others who can execute the decree are the person to whom a decree is transferred by agreement or operation of law like legal representatives etc. Order XXII of CPC which deals with the addition of legal representatives in suits which is made applicable to appeals also, is not applicable in execution. There is no limitation for adding legal representatives in execution.

The relevant provisions are Sections 50, 52 and 146 CPC. Straight away an execution petition can be filed either by the legal representatives of a deceased decree-holder or against the legal representatives of a deceased judgment- debtor.

The only condition imposed is that when a decree is sought to be executed by a legal representative or against a legal representative, Order XXI Rule 22 notice is compulsory.

Apart from Order XXI Rule 22 notice a notice called notice under Section 50 is also being issued generally.

Only after serving the notice on the legal representatives in case of judgment-debtor’s death or on the judgment- debtor in case of the death of the decree-holder, further steps can be ordered, after hearing and disposing of the objections, if any.

When there is a transfer of a decree by operation of law or by mutual private arrangement, the decree can be executed by transferee, only after permission is granted by the court under Order XXI Rule 16 of CPC. There need not be a separate application for permission. He may straight away file an execution petition seeking permission to execute the decree after recognising the transfer.

Notice has to go not only to the decree- holder who has transferred the decree, but also to all the judgment-debtors concerned, and after hearing and disposing off the objections, if any, and after recognising the transfer alone, further steps in execution can be ordered.

In case it is a money decree the legal representatives of a deceased decree-holder have to produce a succession certificate for executing the money decree. The only exception is that if it is proved to be a Hindu undivided family, decree to which the applicants succeeded by survivorship and not by succession. Then there is no need for production of a succession certificate.

Besides it, Indian Succession Act itself excludes mortgage claims and mortgage decrees from the need for filing a succession certificate.

There was a conflict in regard to when the transferee court gets jurisdiction, whether it is from the time the transfer order is made in the original court, or is it from the date the transferee receives the record of transfer?

This becomes important in the case of 12 years execution petitions, which are filed just before the period of limitation is getting lapsed and then got transferred to another court wherein execution has to be taken before expiry of period of limitation, and also in cases of transfers for applying for retable’s etc., It is now clearly laid down that the date of order in the original court is the date when the transferee court gets jurisdiction to entertain an execution petition. With regard to the procedure in transfer of a decree, most of the courts are not following the procedure prescribed.

The court granting application may, if, prayed for by the applicant, handover to him or his advocate in a sealed cover a copy of the order transferring the decree together with the documents enumerated in Order 21, Rule 6 of the Code to be taken with the court to which they are transmitted.

Generally this part alone is being complied with by all the courts. But there is a further clause providing that the court shall send a copy of the order in confirmation, to the court to which the decree is transmitted.

What disputes can be considered by an executing court? General principle is that executing court cannot go behind a decree but there are some exceptions thereto. When the objection is regarding the nullity of the decree itself, then that objection has to be gone into and considered by an executing court.

Secondly when there is conflict between the decree and judgment, then it can look into the judgement to see as to the correct direction given by the court in judgment, as judgment prevails over decree.