cpc II

Question 1

execution definition

Answer 1

The term “execution” is not defined in the CPC. The term “execution” means implementing or enforcing or giving effect to an order or a judgment passed by the court of justice. In simple words “execution” means the process of enforcing or giving effect to the decree or judgment of the court, by compelling the judgment-debtor to carry out the mandate of the decree or order and enable the decree-holder to recover the thing granted to him by judgment.

Question 2

Supreme Court dealt with the provisions of the code relating to the execution of orders and decree and stated that the Code contains elaborate provisions which deal with all questions regarding executability of a decree in all aspects.

Answer 2

Ghan Shyam Das v. Anant Kumar Sinha

Question 3

which section states a decree can be executed either by the Court of the first instance or by the Court to which it has been sent for execution.

Answer 3

section 38

Question 4

further establishes the scope of the expression “court which passed a decree”

Answer 4

Section 37

Question 5

four courts mentioned in 37

Answer 5

The court of the first instance;

The court which actually passed the decree in case of appellate decrees;

The court which has jurisdiction to try the suit at the time of execution, if the court of first instance ceased to exist;

The court which at the time of execution had jurisdiction to try the suit, if the court of first instance has ceased to have jurisdiction to execute the decree.

Question 6

when a decree-holder makes an application to the court of the first instance to send the decree for execution to another court, the court of first instance may do the same if any of the following grounds exist
section + grounds

Answer 6

39
1- if the judgement-debtor carries on business or resides in within the jurisdiction of the court
2- if the property doesn’t come under the jurisdiction of the court of the first instance
3- if the decree directs delivery or sale of immovable property outside the jurisdiction of the court
4- the court that has passed the decree considers considers that the decree should be executed by another court but it shall record the reasons for doing so

Question 7

provisions of Section 39 are not mandatory because the court will have discretion in the matter which can be exercised by it, judicially. The decree-holder would not have any vested or substantive right to get the decree transferred to another court.

Answer 7

Mahadeo Prasad Singh v. Ram Lochan

Question 8

foreign judgment

Answer 8

Section 2 (6)

Question 9

simultaneous execution proceeding in more than one place is possible but the power shall be used in a restricted manner, in exceptional cases by imposing proper terms so that the judgment debtors do not face any hardship because of several executions are being allowed to be proceeded with at the same time

Answer 9

Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors

Question 10

This section states the jurisdiction and power of the court in executing a decree

Answer 10

section 51

Question 11

modes of executing decree

Answer 11

by delivery of any property (movable or immovable) specifically decreed

by sale of property with or without the attachment of the property. if the property is situated within jurisdiction then can attach property

By arrest and detention. However, this mode should not be exercised without giving a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be imprisoned.

Execution by appointing a receiver

If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in the execution of a decree then clause(e) comes into play.

Question 12

This section deals with the cases where the decree is passed against the legal representative of the judgment-debtor (deceased)

Answer 12

section 52

Question 13

The Section states that when a property is liable for payment of a debt of a deceased ancestor and it is in the hands of a son and descendant, then the property will be deemed to be of the deceased which has as his legal representative come into the hands of the son or other descendants.

Answer 13

section 53

Question 14

When a decree has been passed for partition or for the separate possession of a share of an undivided estate for the payment of revenue to the government, this section comes into play.

Answer 14

section 54

Question 15

Order 21 Rule 8 of the Code

Answer 15

if a decree under the provisions of section 39 has been sent for execution to another district, it may be executed by either the district court to which it was sent or by a subordinate court which has competent jurisdiction, to which the district court may refer it.

Question 16

the powers of the transferee court and states that the Court to which a decree has been sent for execution shall have the same powers in execution of such decree as if it had been passed by itself.

Answer 16

section 42

Question 17

Powers of the transferee court

Answer 17

To send the decree for execution to another Court under section 39.

To enforce execution of a decree against the legal representative of the deceased judgment-debtor under section 50.

To order attachment of a decree.

Question 18

questions to be determined by the court before execution

Answer 18

section 47

execution of decree
satisfaction of decree
discharge of decree
The Court can also determine whether the person is representative of a party or not.

Question 19

allows the Court to transfer the case to competent Courts in another State.

Answer 19

Section 40