EXECUTION - PETITION

EXECUTION PETITION
Execution is the enforcement of decrees and orders of courts by the process of the court.n It is the act if carrying into effect the final judgment of a court or other tribunal. In its practical sense, execution is the formal method prescribed by law, whereby the party, entitled to the benefit of a judgment or of any obligation equivalent to the judgment, may obtain that benefit.

Sections 36 to 74 and order 21 (XXI) of the code of Civil Procedure deal with the law and procedure for the execution of decrees. The order consists of 106 rules and is the longest of all he order of the code.

The question as to the execution of decree shall arise only when the person against whom the decree has been passed, does not comply with it. Order XXI of the code deals with those steps which a decreeholder shall have to follow in the execution of he decree against the judgment- debtor.

According to Rule 30 or order XXI the expression, 'execution of a decree means the enforcement of the decree against a judgment debtor's person or property or both through the forum of the court.

According to court to Rule 21 of the same order the court may, in its discretion, refuse execution at the some time against the person and property of the judgment debtor.

The true executing against the person of the judgment- debtor means his arrest and detention in civil prison the term, execution against the property of the judgment debtor, means the attachment and sale of his property and then payment of the amount of the decree out of the sale proceeds to the decreeholder. A decree may be executed either by the court which passed it, or by the court to which it is sent for execution.

Application for Execution : Where a decree-holder desires to execute it, he shall apply to the court which passed the decree. Every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person who is acquainted with the facts of the case, and it shall contain the following particulars as provided under rules 11 (2) to 14 of the Order XXI.
a. The name of the court,
b. The number of the suit,
c. The names of the parties,
d. The date of the decree;
e. Whether any appeal has been preferred from decree, and if so what is the result thereof,
f. The nature, character and the amount of the decree and costs.
g. The mode of execution, against person or property movable and immovable and their detailed description.

If the application complies with rules 11 (2) to 14, the court will direct exclusion under rule 24; and if it does not it may be rejected or ordered to be amended under rule 17. When the application is rejected, the decree- holder can present another application properly framed. Where the application is made for arrest and detention of the judgment-debtor in prison, it shall state the grounds on which artest is applied for and shall be accompanied byan Affidavit of the applicant or any other person conversant with the facts of the case, (Rule 11- A). But where the decree is for the payment of money and the judgmentdebtor is present in the court at the time when the decree is passed, on the oral application (Rule 11 (1) Orper XXI) of the decree- holder, the court may order immediate execution of the decree by arresting the judgment-debtor without prior preparation of warrant under rule 11 (1) of the order.

Who May Apply for Execution: The application for execution is made by the decree-holder. Where the decree has been passed jointly in favour of more persons than one, anyone or mare of such persons may apply for execution (rule 15). Where a decree is transferred by the decree-holder, the transferee may apply for execution (Rule 16). If the decree-holder is dead, his legal representative may apply for execution.

Against Whom Execution May be Applied for: where judgment-debtor is living, the execution is applied for against him, but if he is dead, execution is applied for against his legal representative. When the execution is applied for against legal representative of the deceased judgment-debtor, it cannot be against the person of the legal representative, but only against the property of the jUdgment-debtor which has come to the legal representative and has not been disposed of by him (sec. 50).

Form of Execution Petition: An application for execution of decree under rule must state certain particulars. The decree-holder is required to state the details as number of The suit, names of e parties, the date of decree, etc, in his executions application, and if upon scrutiny, it appears that any of this detail is missing in the application; the court may give an opportunity to the decree-holder to remedy the effect. An application for execution is generally made in a tabular form given in form NO.6 in appendix E to the first schedule of the civil procedure code. But the fact that the petition for execution was not in a tabular form is, in itself, not a sufficient ground for rejection the application.

Verification of Application
Sub rule (2) of 11 enjoins that every application for the execution of ta decree shall be verified by
(i) The application, or
(ii) Some other person proved to the satisfaction of the court to be acquainted
with the facts of the case. A valid application can be signed and verified by any person proved to the satisfaction of the court to be acquainted with the facts of the case. So, if an incorporate body obtains a decree through its secretary and the application for execution is sighed and verified by its president, the application is competent. Rule 11 (1) does not require that the execution petition must be verified by a person authorised by the decree-holder. It may be verified by any person acquainted with the facts of the case.

The provisions, as regards the signing and verification in sub-rule (2) in respect of an execution application are mandatory and the omission to comply with the same constitutes a material irregularity, which unless cured, renders the application open to the objection that the some is not in accordance
h law. Where they are more applicants than are, the verification need not be signed by all a verification one of them acquainted with the facts of the case is sufficient.