Application for Execution - Comprehensive Guide on Process

The term execution of a decree refers to the process for enforcing or giving effect to the judgment, decree or order of the court. The execution is the mechanism though which the decree holder realises the fruits of the decree ordered by the court. It comes to a close when the decree holder gets the relief awarded to him by the court.

The decree holder is the person in whose favour a decree has been passed, and the judgment debtor is the person against whom a decree has been passed.

Attachment and sale of property can be done under execution of a decree. An attachment is an order prohibiting and restraining the defendant from transferring the attached property or from creating any charge over such property by sale / gift or otherwise.Any private transfer of attached property is void to the extent it creates new rights or liabilities. But a transfer as per an agreement executed prior to the attachment is legally valid.

Attachment is being done to give notice to the judgment debtor not to alienate the property and the public not to buy it. Any property, which is not liable to be attached under the law, can be attached. Some properties cannot be attached, as per Section 60 of the CPC. Moveable property should be attached by actual seizure. If the property thus seized is subject to speedy and natural decay the attaching officer may sell the property. Agricultural produce is to be attached by affixing a copy of warrant of attachment on the land on which such crops are grown or on the floor where the grain is stocked

The decree holder can reach the debtor who owes any debt to the judgment debtor (a Garnishee is a debtor’s debtor) by filing an application along with an affidavit to the court. The court can issue an order asking him to pay the amount to the court if he is staying within the court’s jurisdiction. Otherwise the case has to be transferred to the district court of that area for enforcing the payment. If Granishee disputes his liability in the decree the dispute needs to be tried as if it were an issue in the suit.

Salary or allowance of an official of the government, Company, Government owned Corporation, Railway or Local Authority can be attached by a court order as provided for by law. The disbursing officer of salary, on receiving a court order, shall withhold and remit the installment of salary to the court. If the attachable portion of the salary of the official is remitted to a court in pursuance of a previous court order, the officer shall return the subsequent order received from another court with a full statement of particulars to the latter court.

The portion of salary that can be attached in any decree other than the maintenance decree is arrived at by excluding the first one thousand rupees and the two third of the remainder from the total salary. Here the salary means the total monthly emoluments, excluding any allowance declared exempted from attachment.Attachment of salary of the private employees is possible by an order of the court.

Attachment of property belonging to a partnership firm can be made only when the decree is against the firm or against the partners in the firm as such. However the court can charge the interest of one partner in the firm if the decree is against him. If decree is against a firm, the execution is possible against any property of the partnership or anyone admitted on the pleadings as a partner or anyone who failed to appear before the court on serving summons. No partner can be made liable unless he is served with a summons to appear and answer.

Parties to the suit and other third parties can raise objections against attachment of property in case any interest of such party is defeated.

The parties to the suit can file application under Section 47 of the CPC whereas the third parties can file either a suit for claims or an application under Order 21 Rule 58 of the CPC. The court shall hear the person, adjudicate upon the claim and allow/disallow it. When a claim petition is dismissed it cannot be restored under Order 9 Rule 13 of the CPC, but it can be restored under Section 106 of the CPC.

Any person, who has some right, title or interest in the attached property at the time of attachment, may lodge a claim or raise an objection against attachment. A claim petition may be filed in the executing court which attaches the property.

The court is bound to order sale of property when a property is attached and a party files an application to order sale. The court has authority to sell a portion of the property of the judgment debtor necessary to satisfy the decree. No sale beyond the decretal amount is permissible. Sale is to be done by the officer of the court by public auction alone.

The decree holder should apply for sale of the property in form 56 along with draft sale proclamation. Proclamation should be made after issuing notice to the judgment debtor. The object of issuing a proclamation is to give notice to intending purchasers to know what is to be sold and the names of the parties whose right, title and interest in it are to be sold. After proclamation the sale takes place after 15 days in case of immoveable property and 7 days in case of moveable property, a failure of which will make the sale void.

The application should include property to be sold or portion thereof, revenue assessed on the estate, encumbrances to which property is liable, amount to which sale is ordered, valuation of both parties and other material things. Proclamation should be published in a local news paper or beat of drums.

Decree holder should not buy the property without permission of the court. The mortgagee or the officers of the court also cannot bid at the sale.

The court can postpone sale in order to allow time for the judgment debtor to raise decretal dues by private alienation of property such as sale, mortgage, lease etc. The court can issue certificate to mortgage, lease or sale, if applies for it.

A person having any interest (the term ‘interest’ has a wide import) on the property can apply for setting aside the sale, under Order 21 Rules 89 to 91 of the CPC, on the following grounds:-

• On deposit of purchase price specified in the sale proclamation
• When there is substantial injury due to material post-sale irregularity or fraud in conducting sale
• When decree holder has no saleable interest.

Such an application has to be made within the limitation period of 60 days only. The pre-sale irregularities can be remedied under Section 47 of the CPC.

Immediately after concluding the process of sale, the person declared to be the purchaser must deposit 25 per cent of the purchase money. The balance amount must be paid within 15 days from the date of the sale, the failure of which will vitiate the sale.

When no application to set aside the sale is filed in the court, the sale becomes absolute when the court makes an order of confirmation. If sale is set aside by the court, the purchaser of the property will get the purchase money.

When sale becomes absolute the court shall grant purchase certificate specifying the property and the name of the purchaser. Issue of a certificate is a ministerial act. Purchaser’s title relates back to the date of sale and not the date of confirmation of the sale.

• Rateable distribution is proportionate distribution of proceeds of execution sale of a property of the judgment debtor among two or more decree holders by the court, when it is held by it. It is provided for in Section 73 of the CPC.


• This is more an administrative rather than a judicial action of equitable distribution of assets by ensuring equitability among the decree holders. The cost of realisation of assets should be paid in priority to other debts. The section also confers priority of government debts over other debts when the amount is left with the court. But the government cannot lay claim after its distribution.


• The Section allows filing of suit for refund of any asset wrongly distributed to a person who is not entitled to receive it as well. The cause of action arises when the amount is paid. The period of limitation for such suit is three years after actual payment.


• The provision seeks to place all decree holders on an equal footing. It secures equitable disposition of assets among rival decree holders without any independent proceeding. Summary process of execution is followed in such distribution. The order under this Section is not appealable as a decree but revision is possible.

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is regarding a dispute related to family property. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates to, whether the issue requires going to court and, how the court procedure works. Seeing a lawyer and getting some legal advice can enable you to comprehend your choices and can give you the certainty to enable yourself to determine your legal recourse.

An experienced property attorney can give you expert advice on how to handle your property issue owing to his years of experience in handling such cases. An experienced property lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get your share in the property as quickly as possible.

If the judgment debtor resists obtaining of possession of the property in sale under execution by the court without just cause, the decree holder or auction purchaser can make an application to the court. The court can detain the person in civil prison for a term of not more than thirty days. The court can direct the decree holder or purchaser be put in possession of the property as well.

If the judgment debtor resists obtaining of possession of the property in sale under execution by the court without just cause, the decree holder or auction purchaser can make an application to the court. The court can detain the person in civil prison for a term of not more than thirty days. The court can direct the decree holder or purchaser be put in possession of the property as well.