Execution of a ‘CIVIL DECREE’

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What is Execution of Decree?

The litigation consists of three stages, initiation of litigation, adjudication of litigation, and implementation of litigation.

The last stage of litigation, that is the implementation of litigation is known as an execution.

Once a decree or judgment is passed by the court, it is the obligation of the person against whom the judgment is passed (judgment-debtor), to give effect to the decree so as to enable the decree-holder to enjoy the benefits of the judgment.

By execution, a judgment-debtor is compelled to carry out the mandate of the decree or order. Execution implies giving effect to an order or judgment of a court of justice.

When the decree-holder gets the thing granted to him by judgment, decree or order, the execution is complete.

PROCEDURE OF THE EXECUTION OF A CIVIL DECREE IN BANGLADESH 

Section 51 to 54 talks about the procedure in execution or mode for execution

Section 51: this section gives the power to the court to enforce the decree in general.

This section defines the jurisdiction and power of the court to enforce execution.

Application for execution of the decree under this section may be either oral (Order 21 Rule 10) or written (Order 21, Rule 11). Party has to choose the mode of implementation of the decree.

The court may execute decree as per the choice prayed by the decree-holder or as the court may think fit.

Mode of executing decree under section 51

(a). By delivery of any property specifically decreed. Property may be movable or immovable

(b). By attachment and sale of the property or by sale without attachment of the property.  Under clause (B) of Section 51, it is within the power of the court to attach the property if it is situated within its jurisdiction.

(c). Court can execute decree by mode of arrest and detention.

no execution of decree by arrest or detention of judgment-debtor unless reasonable opportunity is given in the form of show cause notice as for why he should not be imprisoned.

(d). It can be executed by appointing a receiver. Within the purview of this section, it is permissible to appoint decree-holder himself as the receiver of the judgment-debtors land.

(e). Clause (e) is the residuary clause and comes into play only when the decree cannot be executed in any of the modes prescribed under clause (a) to (d).

Section 52: Enforcement of decree against Legal representative

Section 52 deals with a case where the decree is passed against the legal representative of the judgment-debtor.

Section 52 (1) empowers a creditor to execute his decree against the property of deceased in the hands of legal representative so long as it remains in his hand.

For application of this clause, the decree should have passed against the party as the legal representative of the deceased person, and it should be for the payment of money out of the property of the deceased.

Section 52 (2) empowers a creditor to execute his decree against the legal representative personally if he fails to accounts for the properties received by him from deceased person.

Exception to section 52: Court can implement the decree against the personal property of the legal representative provided if he is avoiding, neglecting or evading to make the payment from the property of deceased.

Where he has miss utilized the property of the deceased and where the legal representative has alienated the property of the deceased person.

Section 53: Liability of ancestral property

No legal representative should be held personally accountable where the suit has been filed against a joint Hindu family unless he has received some property of a joint Hindu family.

Under pious obligation, if has received the property of joint Hindu family then will be held liable.

Where the decree has been passed against Karta, no execution be made against the son under pious obligation if the decree is passed after partition.

Event after partition a son can be held liable if the suit was pending before partition.  

The son will be held accountable if after the death of Karta the decree has been executed and son has distributed the property of Karta among themselves.

The member of the joint Hindu family will be held liable if Karta has taken debt for moral purpose or family purpose.

The nature of suits determines how decree should be implemented.

Illustration: a promissory note has been executed by the father for the purpose of borrowing money. After the death of the father, the creditor instituted proceeding against son.

Where suit is filed basing on promissory note first it will be seen that whether suit is maintainable or not- if it is filed within three years then the suit will be maintainable.

General rule is that son will be held liable if they have received ancestral property.

Where the son is not having knowledge about the execution of the promissory note, in such case will not be held liable even though has received the ancestral property.

Section 54: Partition  of estate or separation of share

Section 54 comes into play when a decree has been passed for partition, or for the separate possession of a share of an undivided state paying revenue to the government, that is the partition of the state or share will be made by the collector.

However if the collector refuses to make the partition of the revenue paying property, the civil court can do so. 

To attract the provision of this section it is not necessary that the plaintiff should ask for the division of government revenue.

Section 54 deals with a case where though the civil court has the power to pass a decree yet it is not competent to execute the same.

Under this section, the execution of decree shall be made by collector.

So, we see that procedure of the execution of a decree is a process of law which in the perspective of Bangladesh is too long and costly.

 VARIOUS TYPES OF DECREES AND THEIR MODE OF EXECUTION 

A. General

Elaborate procedures have been laid down for execution of various types of decrees.

By virtue of the very nature of such decrees special intricacies may be involved and specific remedies maybe provided under the law to meet with such situation.

Money decree involves payment of money and the prescribed mode for execution includes notice to the judgement debtor, attachment of his movable and immovable properties and sale thereof.

The executing court also has a power to order arrest and imprisonment of judgement debtor in exercise of its jurisdiction within the framework prescribed under the law.

B. Specific Movable property

When the decree is for any specific movable property, the execution can take place in any of the following made

(a) By seizure and delivery of the property.

(b) By detention of the judgement debtor.

(c) By attachment of his properly.

(d) By attachment and detention both.

Money is not covered within the definition of movable property and there is separate procedure for money decree.

Provisions as stated above apply only to specific movable property in possession of the judgement debtor and if it is in possession of third party the procedure prescribed under this provision does not apply.

C. Document and Negotiable Instruments

If the decree is for execution of a document, the process of execution involves signing of such documents by the judgment debtor.

When judgement debtor neglects or refuses to obey or comply with the decree, the court shall after giving opportunity to the decree holder as well as to the judgement debtor, prepare the draft of the document in accordance with the terms of the decree and execute such document.

Such document shall have same effect as the execution of the document by the party himself.

If the decree is for endorsement of a negotiable instrument and the judgement debtor neglects or refuses to obey the decree, the court after giving an opportunity shall prepare draft of endorsement and endorse it accordingly.

It shall have same effect as endorsement by party or his order to endorse it.

Australian Journal of Asian Law  Vol 16 No 1

 Conclusion 

The data set out in this paper demonstrates how and why delays occur and establishes a basis upon which change could be made to reduce backlogs he principles that Lord Woolf (1995)  identified  as denoting a good and effective civil justice system, are mostly absent in the civil justice system of Bangladesh.

It is too slow in bringing cases to a conclusion. It is also incomprehensible to many litigants.

Above all, it is too fragmented in the way it is organized since there is no-one with clear overall responsibility for the administration of civil justice and too adversarial.

Because cases are run by the parties and their lawyers, not by the courts, the rules of court are all too often ignored by the parties and not enforced by the court.

In this situation, new amendments are required in the CPC 1908, incorporating case management; empowering the judges to control the cases;  changing the traditional pleadings  procedure; introducing summary judgments; reducing opportunities  for appeal to a higher courts; motivating clients  to  mediate; increasing the number of the judges; and  ensuring computer facilities in each court with proper maintenance and skilled persons  to  run them. 

It is high time to proceed with incorporating  case management methods in substantive as well as procedural laws to make the  legal system more effective and efficient, and to achieve maximum benefits for litigants.  

Ref:

1. Kavita Chandra, ‘Execution of a decree under Code of Civil Procedure 1908’ (2020) (1), ipleaders <https://blog.ipleaders.in/execution-decree/> accessed on 21 July 2020

2. Abhishek Kumar, ‘Concept of Execution’ (2015), (Chapter-4) < https://www.lawctopus.com/academike/concept-execution/> accessed on 22 July 2020

3. Section 51-A and Order 21 Rule 31 Of CPC.

4. Order 21 Rule 34 Of CPC.

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Shipta Baruahttps://legalhome.org
Shipta Barua has been Completed LL.B(Hon's) from Cox's Bazar International University and completed LL.M on Human Rights at Southern University. Writing and discussion about the critical and important topics of law in his choice. For primary Legal support and enrich to the general people legal knowledge he working in the Legal Home.
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