Execution Proceedings

Execution Proceedings and Withdrawal of Suits

Execution Proceedings

Businesses are incorporated by adhering to numerous laws such as the Companies Act, Labour Laws, Intellectual Property Rights, Tax Laws, Securities Laws, Environmental Laws, etc. When a dispute arises, it is imperative that the aggrieved party will move to the Court. After the proceedings are all done with, a judgement is passed by the Judge as a finality to the suit. This judgement decides the rights and liabilities of the parties, which must be abided by them. There is a possibility that a judgement-debtor is not being bothered by the judgement which is against him. This is where Execution proceedings come into the picture. This article examines the legal provision of execution proceedings and withdrawal of suits.

Judgement-debtor -The status given to a defendant after the execution proceedings on the delivered judgement begin.  

Execution Proceedings

The sanctity of a decree or an order is upheld only when it is enforced appropriately. In legal terms, getting the judgement into force is called Execution of Decree or Order. The process whereby such execution is carried out is generally called execution proceedings.

The Code of Civil Procedure, 1908 is the primary procedural law in India which acts as a backbone to all the procedural aspects in civil suits. As per the Code of Civil Procedure, the whole process of execution of a decree is referred to under Order XXI.

A court having original jurisdiction can carry out the process of execution only when there is no ‘stay’ proceedings pending elsewhere say in appellate court or revisional court. When in appeal, a judgement is reversed, then the appellate court’s judgement is considered for the concerned execution proceedings.

For the execution procedure to begin, an application has to be initially filed by the decree-holder, his legal representative in case of death of decree-holder or anyone who is legally related to or benefitting from the decree-holder by the execution of the decree or order. The execution decree can be made only against the judgement-holder or his legal representative in case of the death of the judgement holder.

Modes of Execution

The execution is carried out in various modes as per Section 51 of the Code of Civil Procedure, 1908. According to the abovementioned provision, a decree can be executed:

  • By delivery of property specifically decreed – property of the judgement-holder is legally delivered to the decree-holder as part of the process of execution of decree/judgement.
  • By attachment or sale or sale without attachment of the property – attachment of property is the process where the court holds any property of the debtor, attaches the same to the decree wherein the property is transferred to the decree-holder, to pay off the debts as against the creditor through the sale proceeds which are conducted formally. A sale without such formal attachment of property may also take place based on the given circumstances.
  • By arrest and detention – Not only for criminal cases, but arrest can also be carried out in civil suits as a part of the execution of the decree where the judgement-debtor is unable to pay off the debts to the creditor, as ordered by the court, in any way. Such detention shall not exceed three
  • By appointing a receiver – Where any disputed property in question is the substance of judgement, then such property is taken care of by appointing a receiver who carries out all the transactions related to the property, till the judgement is enforced in totality.
  • By any means through which the nature of the relief granted may require – any other ways as required by the judgement at the discretion of the Judge.

The term ‘property’ need not necessarily mean ‘physical property’ such as land and money. It could be damages, intellectual property or anything else that is sufficient enough to fulfil the burden as against the judgement rendered. It can be interchangeably used as per the nature of the suit.

Withdrawal of suits

Order XXIII of the Code of Civil Procedure deals with the withdrawal of suits. A suit can be withdrawn any time after the institution of the suit, but not after the judgement is delivered and execution proceedings are initiated. The withdrawal of a suit takes place with or without the permission of the Court.

In circumstances where the plaintiff is of the opinion that there are technical errors or mistakes in the filing of a suit or sufficient ground for changes in subject matter that can potentially affect the outcome of the suit, he/she is entitled to withdraw the suit in agreement with the defendant along with the permission of the Court. In such cases, even if there is no agreement with the defendant, the Court gives leave to withdrawal, keeping in view, the merits of the case. For that matter, a defendant cannot even object the plaintiff’s request to withdraw the case as held by the Supreme Court in Anil Kumar Singh Vs. Vijay Pal Singh. Hence, in such context, the plaintiff would be facilitated to file a fresh suit after the withdrawal of suit is completed. This is called qualified withdrawal of suits.

When the plaintiff withdraws a suit without the permission of the Court, the plaintiff is not allowed to file a fresh suit even when there was an agreement with the defendant for withdrawal of the suit. This is called absolute withdrawal of the suits.

Hence, it is important for withdrawal of suits with the leave of the Court where the legal developments are undone, and the individual status of both the parties are restored as if the suit has not been instituted.

Summary

Only decrees or orders can be enforced because a decree is the final part of judgement where rights and liabilities of parties are determined. An order is passed during the proceedings in a suit. A judgement consists of all the aspects of a suit such as the facts, evidence, findings, precedents involved, etc. So, when the term ‘execution’ comes into the picture, it means, execution of the final decision or final step that has to be followed, as directed by the Judge. It is to be noted that wherever a case is dealt with, i.e., from a National Company Law Tribunal, Tax Law Tribunal or even Intellectual Property Appellate Board, it finally culminates into enforcement of decree (final decision of the judge) in accordance with the Code of Civil procedure as far as the execution proceedings are concerned.

Withdrawal of suits, as discussed above can be done at any time, with the will of the plaintiff as per the appropriate procedure.

Both the procedures of execution of decree or order and withdrawal of suits are independent of each other and completely different in contexts. As a matter of fact, the withdrawal of suits does not apply to execution proceedings.

Post by Sreeram Viswanath

IndiaFilings is India's largest online compliance services platform dedicated to helping people start and grow their business, at an affordable cost. We were started in 2014 with the mission of making it easier for Entrepreneurs to start their business. We have since helped start and operate tens of thousands of businesses by offering a range of business services. Our aim is to help the entrepreneur on the legal and regulatory requirements, and be a partner throughout the business lifecycle, offering support at every stage to ensure the business remains compliant and continually growing.