Report No. 14
18. Execution of Decrees
1. Difficulty of obtaining satisfaction for decrees-an old complaint.-
The general complaint against the system of execution of decrees of civil courts in India is that in a large number of cases the decree-holders who have obtained after much trouble and expense, decrees for payment of money or for delivery of specific property or for other relief are not able to obtain full or even a partial satisfaction of their decrees. The evil was noticed as far back as 1872 by the Privy Council in the Maharaja of Darbhanga's cases 1 where it was stated that the difficulties of a litigant in India begin when he has obtained a decree.
1. The General Manager of the Raj Darbhanga v. Maharaj Coomar Ramput Singh, 14 Moor's Indian Appeals 612.
The position in 1923.- This was echoed in 1923 by the Government of India in their letter dated 25/28-6-1923 addressed to the Provincial Governments: "It is clear, however, that there are substantial facts to support the common criticism that litigants are unable to gain adequate satisfaction for the decrees passed in their favour. Thus taking the figures reported by provinces in 1921 it will be found that the Bengal mofussil courts returned execution proceedings as infructuous in no less than 245, 344 cases, the percentage of the total of infructuous cases in some districts being as high as 71 and 63 per cent.
In the same year the mofussil courts of Madras except village courts obtained satisfaction in full in only 16.56 per cent. of the applications for execution, and satisfaction in part in 7.19 per cent. while the number of wholly infructuous applications was 2,39,421. The courts subordinate to the Allahabad High Court dealt with 1,41,639 applications for execution of decrees, and of these 57,711 were totally infructuous. Those subordinate to the Lahore High Court dealt with 1,74,566 applications out of which 83,902 were returned as totally infructuous; out of 1,39,742 applications before the courts in the districts of the Central Provinces and Berar 66,286 were returned as infructuous."1
1. Civil Justice Committee Report, pp. (v) and (vi), para. 2.
2. General results of execution (The present position).-
To assess the validity of the criticism that litigants are generally unable to gain adequate satisfaction for their decrees, it is necessary to examine the present situation with reference to the figures of applications for 'execution of decrees and their results. The following table (Table I) shows at a glance the general result of such applications for the years 1954 and 1955 in eleven States. Table II shows the percentages of the number of applications in which satisfaction was obtained in full or in part and the applications which were wholly infructuous to the total number of applications disposed of in the two years.
General Result of Applications For Execution of Decrees For The Years 1954 and 1955
State |
No. of application for disposal |
By transfer |
Full satisfaction |
Partial satisfaction |
Infructuous |
Total disposals |
Pendency |
|||||||
1954 |
1955 |
1954 |
1955 |
1954 |
1955 |
1954 |
1955 |
1954 |
1955 |
1954 |
1955 |
1954 |
1955 |
|
Andhra |
71980 |
75862 |
2122 |
1556 |
10336 |
9899 |
5617 |
6124 |
37224 |
39494 |
54299 |
57073 |
17681 |
18789 |
Bihar |
94086 |
... |
4441 |
... |
30154 |
... |
3211 |
... |
17441 |
... |
55247 |
... |
38839 |
... |
Bombay |
1,64667 |
1,75,279 |
2452 |
4088 |
19045 |
19298 |
25253 |
30184 |
38978 |
40745 |
85728 |
90325 |
78939 |
84954 |
Kerala |
80425 |
78553 |
2309 |
2897 |
8055 |
7307 |
8523 |
9123 |
26686 |
26182 |
45573 |
46109 |
34852 |
32444 |
Madhya Pradsh |
67102 |
... |
... |
... |
(1)20.1% |
... |
15.40% |
... |
56.30% |
... |
48776 |
... |
18326 |
... |
Madras |
103195 |
148420 |
356 |
395 |
14446 |
19114 |
11643 |
19008 |
47860 |
67111 |
74305 |
105628 |
28890 |
42792 |
Orissa |
15368 |
14335 |
... |
... |
2460 |
223 |
1479 |
1462 |
4464 |
3648 |
8403 |
7345 |
6965 |
6990 |
Punjab |
28465 |
28716 |
544 |
491 |
6390 |
6461 |
3215 |
3320 |
11254 |
11474 |
21409 |
21745 |
7062 |
6970 |
Rajasthan |
79069 |
79566 |
2748 |
... |
(2)16403 |
(2)16205 |
... |
... |
32117 |
33551 |
48520 |
49756 |
27801 |
29810 |
Uttar Pradesh |
1,02510 |
109216 |
5502 |
6312 |
17351 |
18781 |
11609 |
12360 |
35439 |
38284 |
69901 |
75737 |
32609 |
33479 |
West Bengal |
120171 |
104347 |
844 |
145 |
56724 |
50651 |
3485 |
3359 |
22096 |
21813 |
83149 |
75965 |
37022 |
28379 |
(1) No separate figures are available. Only percentage are available.
(2) Includes also figures of partial satisfaction.
(3) Bihar and Madhya Pradesh figures for the year 1955 are not available.
Table II
State |
Total disposals |
Percentage of full satisfaction |
Percentage of partial satisfaction |
Percentage of in fructuous application |
||||
Andhra |
54299 |
57073 |
19.3 |
17.30% |
10.3 |
10.7 |
68.3 |
69.1 |
Bihar |
55247 |
N.A. |
54 |
N.A. |
5.9 |
N.A. |
31.5 |
N.A. |
Bombay |
85728 |
90325 |
22.2 |
21.3 |
29.4 |
33.3 |
45.4 |
45.1 |
Kerala |
45573 |
46109 |
17.6 |
15.8 |
18.7 |
21 |
58.5 |
56.8 |
Madya Pradesh |
48776 |
N.A. |
20.1 |
N.A. |
15.5 |
N.A. |
56.3 |
N.A. |
Madras |
74305 |
1,05,628 |
19.5 |
18.1 |
15.6 |
17.9 |
64.4 |
63.5 |
Orissa |
8403 |
7345 |
29.3 |
29.1 |
17.6 |
19.9 |
53.1 |
49.6 |
Punjab |
21403 |
21746 |
29.8 |
29.6 |
15 |
15.2 |
52.1 |
52.1 |
Rajasthan |
48520 |
49756 |
34 |
32.6 |
32 |
N.A. |
66 |
67.2 |
Uttar Pradesh |
69901 |
75737 |
24.8 |
16.5 |
16.6 |
50.7 |
50.7 |
50.2 |
West Bengal |
83149 |
75968 |
68.9 |
66.8 |
4.2 |
4.8 |
26.9 |
28.8 |
3. Percentage of execution applications resulting in satisfaction.-
Taking the year 1954, the number of execution applications in which the decree-holders obtained full satisfaction was the highest in West Bengal (68.9 per cent.) and Bihar (54 per cent.) while it was the lowest in Kerala (17.6 per cent.) and Andhra and Madras (19 per cent.). In Madhya Pradesh only 20 per cent. of the applications resulted in full satisfaction, in Bombay it was 22.2 per cent., in Uttar Pradesh 24 per cent. while Orissa and Punjab came next with 29 per cent. and Rajasthan with 34 per cent.
The results of 1955 are very nearly the same; West Bengal again heading the percentage of full satisfaction with 66 per cent., and Rajasthan coming next at 32.6 per cent. There was no change in the returns of Orissa, Uttar Pradesh and Punjab while the lowest returns were again in Kerala 15 per cent., Andhra 17 per cent. and Madras 18 per cent. Turning to the percentages of applications which were totally infructuous in both the years the highest were in Andhra (68 per cent. and 69 per cent.), Madras (64 per cent. and 63 per cent.) and Rajasthan (66 per cent. and 67 per cent.).
4. Lack of uniformity (Figures misleading).-
The above figures do not reveal a uniform pattern and show a certain amount of variation from State to State in the percentages of applications which were wholly infructuous and those in which the decree-holders were able to obtain full or partial satisfaction. Moreover, these figures do not indicate the period during which the decree remained unsatisfied from the date on which it was passed. Therefore in drawing inferences from the figures of fructuous and infructuous execution proceedings in any given year, it must be borne in mind that the figures may to some extent be misleading and may not be a true reflection of the actual result of the execution proceedings launched by the decree-holders.
Immediate satisfaction not expected.- It must be remembered that a large majority of the ordinary civil suits which are filed in our courts are in respect of money claims in the nature of liquidated demands. In many of such cases the plaintiff files the suit not so much because he hopes to get immediate satisfaction of his decree but because he wants to get his claim established and secured by a decree before it becomes barred by limitation. This is one reason why some suits are filed only on the last day of the period of limitation.
5. Reasons for misleading figures (Petitions as a step-in-aid).-
Once the decree-holder has obtained his decree, section 48 of the Code of Civil Procedure gives him an out side period of twelve years to execute the decree. Having this long period for execution, the decree holder would not ordinarily like to put himself to the trouble and expense of starting execution proceedings unless he has a reasonable expectation of obtaining a full or even a partial satisfaction of his claim. However, Article 182 of the Limitation Act compels him to take action. Although section 48 provides for a maximum period of twelve years for execution of a decree or order of any civil court, Article 182 compels the decree-holders to keep the decree alive by making an application every three years irrespective of the judgment-debtor's capacity to pay or otherwise satisfy the decree.
This provision has been responsible for an enormous number of futile applications which are described as wholly infructuous. The decree-holder is obliged to file such applications only to take what are known as steps-in-aid of execution. These applications having served their purpose are then allowed to be dismissed for default without, in many cases, even the payment of the process fees.
6. Settlement out of court.-
Another class of case goes to augment the figures of infructuous execution proceedings. Very often, on process for execution being issued, the judgment-debtor makes some part payment out of court and the decree-holder thereupon allows the proceedings in the court to be dismissed without pressing them and hoping to recover the balance in the future. If as often happens, the payment is not reported to the court, the application is shown as infructuous.
7. Exaggerated notions of failure of executions.-
The statistical figures of the returns of execution applications have therefore to be read subject to these considerations. The number of infructuous proceedings should not necessarily be taken to indicate that in every such case the decree-holder failed to realise his dues by reason of some default on the part of the judgment debtor or by reason of some defect in the procedure relating to the execution of decrees. The ever-increasing number of persons who come into court with money claims asking for money decrees is an indication that the Indian judicial system is working more successfully than the figures above mentioned seem to show, for, if the vast majority of proceedings resulted in no satisfaction, it would be extremely strange that people who have already parted with money should care to spend further money in obtaining a worthless piece of paper."1
1. Civil Justice Committee Report, p. 377, para. 2.
8. Delays (Stages in an execution proceeding).-
Nevertheless, it is well known that inordinate delays do frequently occur at various stages of the progress of an execution application. Some of these delays are caused by several personal factors which play a part in the trial of a proceeding and which cannot be remedies by a mere amendment of the law. Others are due to defects in the law relating to execution which, by providing too many safeguards against the abuse of execution proceedings, have made them cumbersome and ineffective. It will be useful at the outset to give a brief summary of the various steps which a decree-holder must take and the stages at which he is likely to meet objections or obstructions on the part of the judgment-debtor.
9. Execution procedure.-
The decree of a civil court may be either (1) for the payment of money, (2) for delivery of possession of immovable property, (3) for recovery of any movable property or (4) for specific relief, that is ordering any person to do some act other than payment of money or to abstain from doing something. The proceedings in execution of any decree commence by an application made in accordance with Order XXI, rule 10 of the Civil Procedure Code by the decree-holder or by his transferee or legal representative.
Execution may be taken out either against the judgment-debtor or against his legal representative if he is dead. In the latter case the decree is executed only against the judgment-debtor's property. Except in certain specified cases no notice is to be issued to the party against whom execution is sought. If notice has been served upon the judgment-debtor and he appears and objects to the execution, the court will inquire into his objections. If his objections are allowed, the petition will be dismissed; if not, the execution proceeds further.
10. Money decrees-Modes of execution (Claims and objections).-
In the case of a money decree there are two modes of execution: (1) the arrest of the judgment-debtor and his detention in civil prison and (2) the attachment and sale of his property, movable and immovable. A notice must precede a warrant of arrest to enable the judgment debtor to show cause why he should not be committed to civil prison. If the decree is sought to be executed by the attachment of property, the rules prescribe several modes of attachment for different categories of property. Any claim or objection raised to the attachment of any property has to be investigated by the court in a summary inquiry as distinct from a regular trial of the question of title to the property concerned. The order of the executing court in this inquiry is conclusive subject to the result of any suit which may be filed by the party against whom an order has been made.
If the claim or objection is disallowed, the attached property is ordered to be sold either by public auction or otherwise as the court may direct and the sale proceeds are paid to the decree-holder subject to the claims of other decree-holders to rateable distribution.
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