SC:Unless directed otherwise execution can be filed without copy of decree

The Hon’ble Supreme Court, on 15thJuly 2019, in the matter of Sir Sobha Singh And Sons Pvt. Ltd. v. Shashi Mohan Kapur(Deceased) Thr. L.R. observed that it is not necessary to file a copy of the decree along with execution application unless the Court directs the decree holder to file a certified copy of the decree.

The Hon’ble Supreme Court observed that:

Though Rule 6A (2) of Order 20 of the Civil Procedure Code deals with the filing of the appeal without enclosing the copy of the decree along with the judgment and further provides the consequence of not drawing up the decree yet, the principle underlined in Rule 6A(2) can be made applicable also to filing of the execution application under Order 21 Rule 2 of the Civil Procedure Code. (Para 27)

Order 21 Rule 11(3) of the Civil Procedure Code makes it clear that the Court “may” require the decree holder to produce a certified copy of the decree. This clearly indicates that it is not necessary to file a copy of the decree along with execution application unless the Court directs the decree holder to file a certified copy of the decree. (Para 30)

(Paras 31 and 32)As and when the decree holder files an application for execution of any decree, he is required to ensure compliance of three things.

  • First, the written application filed under Order 21 Rules 10 and 11 (2) of the Code must be duly signed and verified by the applicant or any person, who is acquainted with the facts of the case, to the satisfaction of the Court;
  • Second, the application must contain the details, which are specified in clauses (a) to (j) of Rule 11(2) of the Civil Procedure Code, which include mentioning of the date of the judgment and the decree; and
  • Third, filing of the certified copy of the decree, if the Court requires the decree holder to file it under Order 21 Rule 11(3) of the Civil Procedure Code.

An order passed under Order 23 Rule 3 of the Civil Procedure Code is not in the nature of decree and thus is not capable of being executed as such. (This inference has been drawn on the basis of Para 34)

Order 23 Rule 3 of the CPC, in clear terms suggests that it is necessary after recording the compromise in the order to further pass a decree in accordance therewith. The expression “and shall pass a decree in accordance therewith” is a clear indication that after the compromise is recorded by the Court, it shall proceed to “pass a decree”. So, the rule contemplates, first an order recording of the compromise and then simultaneously pass a decree in accordance with the order. (This inference has been drawn on the basis of Para 35 and 36)

In order to invoke the powers under Section 152 of the Civil Procedure Code, two conditions must be present. First, there has to be a judgment or decree or an order, as the case may be, and second, the judgment or decree or order, as the case may be, must contain any clerical or arithmetical error for its rectification. In other words, Section 152 of the Code contemplates that the Court has passed the judgment, decree or the order and the same contains clerical or arithmetical error. (Para 46)

Copy of judgement: Judgement_15th-Jul-2019

-Tushar Kaushik

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