Section 2(3)[i] of the Code of Civil Procedure provides that a decree holder is a person in whose favour a decree has been passed or an order capable of execution has been made. So this definition gives us the impression that only the person in whose favour a decree or order has been passed can get it executed. But Law is always not that much simple as it appears from the outside. In this present article, by way of a specific example, I will try to argue that not only the decree-holder but also the judgement debtor[ii] can get the decree executed.
In Somavally and Ors. v Prasanna Kumar and another[iii], a substantial question of law was raised that ‘can a decree in a suit for fixation of common boundary of the properties belonging to the plaintiffs and defendants be executed at the instance of the defendants?’
Before the executing court the judgement debtor i.e., defendants in the suit for fixation of boundary, claimed demarcation of a common boundary between their property and that of the plaintiffs/decree holder. The suit was for declaration of the plaintiffs’ right over plaint schedule property, a prohibitory injunction against the defendants from trespassing into the property and also for fixation of common boundary. The suit was partly decreed by the trial court declaring the plaintiffs’ right over the plaint schedule property and also holding that the site plan submitted by the commissioner is the boundary line separating the properties of the contesting parties. A certified copy of the plan was made a part of the decree.
Executing Court dismissed the execution petition filed by the judgment debtor (JD) on the sole reason that the JD cannot seek execution of a decree for fixation of boundary as they cannot be termed either as “decree holders” or “holders of the decree”.
Difference between Decree Holder and Holder of Decree
The point germane for our consideration is about the executability of the decree for demarcation of a common boundary separating the properties of the plaintiffs and defendants at the instance of the defendants/judgment debtor.
There is a marked difference in the expressions used by the CPC in Section 2(3) and Order XXI Rule 10[iv]. The term “decree holder” is defined in Section 2(3) CPC. The expression used is “holder of a decree” in Order XXI Rule 10 CPC. At first blush, it may appear to be synonymous. But, there is a legal distinction between these two expressions.
The term “decree holder” denotes a person:
- in whose favour a decree has been passed
- in whose favour an order capable of execution has been passed and
- whose name appears in the decree, either as plaintiff or defendant, and the following conditions are satisfied:
- the decree must be one capable of execution and
- the said person, by the terms of the decree itself or from its nature, should be legally entitled to seek its execution.
Division Bench of the Allahabad High Court in Ajudhia Prasad v. The U.P. Govt. through the Collector[v] has considered the scope of the expression “decree holder” occurring in Section 2(3) CPC and held as follows:
“Now it is clear from this that a person in whose favour an order capable of execution has been made is also a decree holder. It is also evident from this definition that a decree-holder need not be a party to the suit. He may be ‘any person’. ………..”
The expression “holder of a decree” occurring in Order XXI Rule 10 CPC is very wide and it not only encompasses Decree Holder but also takes into account the transferee of a decree and the legal representative of the decree-holder. Order XXI Rule 16 CPC[vi] deals with an application for execution by the transferee of a decree. Such a person also comes within the expression “holder of a decree”.
Therefore, the expression “holder of a decree” in Order XXI Rule 10 CPC takes in parties other than whose name appear on the decree. Likewise, a legal representative of the decree holder, though his name may not be inscribed in the decree, can execute it as provided in the CPC. The term “decree holder” defined in Section 2(3) CPC takes in persons whose names appear on the record as the persons in whose favour the decree was made. It includes persons who have been recognized by the court by order as the decree holder from the original plaintiff or his representative.[vii]
The Supreme Court in Dhani Ram v Sri Ram[viii] answering a question as to whether the property in a decree passes as intended in the deed of assignment, without the recognition of transfer by the court as a precondition, the Supreme Court held that the property in a decree must pass to the transferee under a deed of assignment when the parties to the deed intend such property to pass and it does not depend on the court’s recognition of the transfer. It goes without saying that such a transferee is also entitled to execute the decree.
Who can get the Decree Executed- Not Necessarily the Decree Holder Everytime
The aspect then comes up for consideration is the implication of the usage “or” in Section 2(3) CPC to separate the two portions of the provision. Decree holder means any person in whose favour a decree has been passed. This is the first limb of the provision. Thereafter, the expression “or” appears. Then it further says that the decree-holder means any person in whose favour an order capable of execution has been made. On careful reading, it can be seen that the word “or” occurring between two limbs of the provision has to be read as “or” itself. It shall not be read as “and” because the term “decree holder” as defined in the above provision takes in two categories of persons, viz., any person in whose favour a decree has been passed and any person in whose favour an order capable of execution has been made.
Against this backdrop, the question of whether fixation of the boundary can be executed at the instance of the defendants will have to be considered.
A Division Bench of the Calcutta High Court in Iswar Sridhab Jew v Jnanendra Nath[ix], has laid down the law that, where a scheme decree is executable and gives any rights to any party, which can be enforced by execution, the fact that the person seeking execution was formerly a defendant in the suit and a judgment debtor under the decree cannot possibly prevent him from working out the decree by execution.
According to Section 28 of the Specific Relief Act[x], 1963 to vouchsafe the point that under certain circumstances, even the defendant can seek indulgence of the court for reliefs subsequent to the decree. Section 28 of the said Act deals with the rescission of a contract after passing of a decree in a suit for specific performance. It is well settled that a suit for specific performance does not come to an end on passing of a decree.
Section 28(1) of the Act empowers a vendor or lessor to apply in the same suit in which the decree is made to have the contract rescinded, if the purchaser or lessee, as the case may be, does not, within the period allowed by the decree, or such further period as the court may extend, pay the purchase money or other sum. From this provision, it is clear that despite the vendor or lessor was a defendant in the suit, such a person gets an opportunity to seek rescission of the contract even after passing the decree. This principle has been approved by the Bombay High Court as early as in 1923 in the decision in Bai Karimabibi v Abderehman Sayad Banu[xi] .
High Court of Patna in Kanu Charan Deep v Bimla Deep[xii] has held that a decree in a proceeding under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights is executable even at the instance of the respondent as the decree is in favour of both the parties.
What Court has to do
For the said reasons, there cannot be any dispute that the decree passed in a suit for fixation of common boundary of the plaintiff and defendant, being one intended to put an end to the dispute between the parties and to achieve the object of common good, should be allowed to be executed by a defendant/judgement debtor in the suit too.
There are many instances in which a decree can be said to be in favour of the parties to the litigation, irrespective of the fact whether they are the plaintiffs or defendants in the suit. In such cases, the decrees can be said to be capable of execution at the instance of any of the parties to the suit.
For example in a suit for specific performance where a decree of specific performance of agreement to sale have been passed in favour of plaintiff (Decree Holder) and court has provided specific time to plaintiff to deposit the sale amount and get the sale deed executed. In absence of him not taking steps in the time provided the judgment debtor/defendant can also ask for the execution of specific performance of agreement to sale. Further Examples of such decrees are those passed in suits for partition, specific performance of a contract, suits under Section 92 CPC, etc. and this list is not exhaustive.
But a Decree granting Declaratory Relief is Not Executable at the behest of any person
When the decree includes the declaratory relief i.e., Declaration in favour of the Decree Holder (as the owner of the property) the defendants cannot seek execution of this declaratory part of the decree, viz., the relief of declaration granted to the plaintiff, for two reasons.
- Insofar as the declaratory relief is concerned, the defendants cannot be held to be the “decree holders” as defined in Section 2(3) of the Code of Civil Procedure, 1908 (in short, “CPC”). In Section 2(3) of the CPC, the term “decree holder” has been defined as “any person in whose favour a decree has been passed or an order capable of execution has been made”. Firstly, on a mere reading of the decree, it is clear that the relief of declaration granted is for the exclusive benefit of the plaintiffs and, in fact, it is against the defendants. Logically, therefore, that part of the decree cannot be executed by the defendants as it may be an execution proceedings against themselves.
- Further reason to hold that a declaratory decree cannot be executed at the instance of the defendants is that such a decree is incapable of execution. Viewing from any angle, that part of the decree granting a declaratory relief is inexecutable, not only at the instance of the defendants, but also by the plaintiffs themselves. The definition of the term “judgment debtor” in Section 2(10) CPC is also relevant. “Judgment debtor” means any person against whom a decree has been passed or an order capable of execution has been made. So far as the declaratory decree is concerned, it is passed against the defendants, though it is incapable of execution. This is yet another reason to find that the decree of declaration is incapable of execution at the behest of the defendants. (So it is clear that even plaintiff can’t ask for execution of Declaratory Decree in his favour because it is incapable of execution)
[iii] Kerala High Court, C.R.P. No.321 of 2013
[v] (AIR 1947 All. 390)
[vii] Paupayya v. Narasannah (ILR 2 Madras 216)
[viii] AIR 1980 SC 157
[ix] (AIR 1960 Calcutta 718)
[xi] (AIR 1923 Bombay 26)
[xii] (II (1996) DMC 214)
ABOUT THE AUTHOR
Harshit is a Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (Ph.D.) at NLU Jodhpur. He can be reached at email@example.com.
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