Execution of Decrees & Orders
Execution is the process of enforcing a decree and or order by a court of law.
A party in whose judgment has been given is called a Decree Holder(DH) whereas a party whom judgment has been entered as against is called a judgment debtor(JD).
Decree - Final determination of and or adjudication of a matter by a court of competent jurisdiction. It may be partly preliminary or partly final.
Execution is provided for under Part 111 of the civil procedure Act and Order 22 of the Civil procedure rules.
APPLICATION FOR EXECUTION (O. 22 R. 6)
A DH may apply to court to execute a decree against a JD either Orally or through a written application.-Order 22 Rule 6
An Oral applications for execution of a money decree can be made by the DH at the time of making the judgment prior to making and or preparation of warrants of arrest if the JD is within the court precincts.
Written applications are made where the mode of execution is for attachment of immovable and or movable property or attachment of debts.
A court may on the application of the decree holder order execution of the decree: (Section 38 CPA):
by delivery of any property specifically decreed;
by attachment and sale or by sale without attachment, of any property;
by attachment of debts;
by arrest and detention in prison of any person;
by appointing a receiver; or
in such other manner as the nature of the relief granted may require.
It is the decree holder to select the appropriate means of execution of his decree, subject to the discretion of the court.
EXECUTION OF A DECREE FOR SPECIFIC MOVEABLE PROPERTY (O. 22 R. 27)
Where the decree is for a specific moveable or for any share in a specific moveable property, it may be executed by the seizure of the moveable property or share, and delivery of it to the party to whom it has been adjudged, or by arrest and detention of the Judgment Debtor, or attachment of his property or both.
Execution against a movable property of the JD is said to be done when the movable property is seized and delivered to the DH.
This power can only be used where the property is under the possession of the JD or his agent.
Order 22 Rule 27(2) Where attachment has remained in force for 6 months, if the JD has not obeyed the decree and the DH has applied for the attached property to be sold, it may be sold and the proceeds of sale awarded to the DH.
Order 22 Rule 27(3) If a JD has not executed a decree for attachment of property at the end of six months from the date of the attachment, the attachment of the said property ceases.
ATTACHMENT OF IMMOVABLE PROPERTY (O. 22 R. 10)
Where the property to be attached is agricultural produce, you attach the property by affixing a warrant of attachment in the field where the property is growing or where it is stored or where the JD resides or works for gain.
If it involves share of dividend in a company - a prohibitory order is issued against the person in whose name the share is registered prohibiting the transfer of the share or receipt of any dividend on that share. If the property is moveable in possession of a 3rd Party, attachment is with prohibition order against 3rd party.
If it is against Land - a prohibitory order is registered against it for the benefit of the DH or the land can be sold and the proceeds be delivered to the DH to satisfy the decree.
The attachment against immoveable property becomes complete and effective when a copy of the prohibitory order is registered against the title.
DECREE FOR PAYMENT OF MONEY (O. 22 R. 26)
A decree for payment of money may be executed by detention in prison of the JD or attachment of his property, or both.
Section 38 CPA: Execution by detention in prison shall not be ordered unless after giving Judgment Debtor, an opportunity to show cause why he should not be committed to prison the court, for reasons recorded in writing, is satisfied – Judgment Debtor, with object of obstructing or delaying execution is likely to abscond or leave local limits and has after institution of the suit in which decree is passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act in bad faith in relation to his property.
That the Judgment Debtor, has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part of it, but refuses or neglects to pay the same.
ATTACHMENT OF SALARY OR ALLOWANCE (O. 22 R. 42)
This is effected by attaching a third of the JD’s salary which is remitted to the DH. If this order is not complied with, one issues a notice to show cause to be served on the Judgment Debtor requiring him/her to appear before court and show cause why the decree has not been satisfied.
If the Judgment Debtor does not show sufficient cause, then the court will make an order attaching one third of the salary of the Judgment Debtor and the order will require that the employer deducts one third of the salary and forfeits to the court or the Advocate of the DH if the court so directs.
What if a third of the JD’s salary is already attached in satisfaction of another decree? O22 Rule 42(2) the JD is to retain and remit the attachable proportion of the salary or allowance in accordance of the order next received by him/her.
Arrest and Detention (Section 40 CPA)
One must issue notice to show cause unless the Judgement Debtor is within the precincts and an oral application has been made. If the person on appearing before court fails to convince the court about his failure to satisfy the decree, he can be remanded to prison at the expense of the Decree Holder for a period not exceeding 6 months and/or satisfaction of the decree.
EXECUTION ON CROSS DECREES (O. 22 R. 14)
This is where each party has a decree against the other. This can only occur where the following conditions exist.
The same court receives applications for executions of the cross decrees
Each decree is for payment of money
Both decrees are capable of execution at the same time and by the same court.
The parties have filed the suit in the same capacity of character in the same cases.
If those conditions are satisfied, then the court must record that they are satisfied and that the sums are equal.
If the sums are not equal, then the one with the larger sum will be allowed to execute.
