How to Enforce a Decree in Civil Cases – Civil Law
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There are several types of court orders – and you might get confused between the technical details of what an order, decree, judgment, etc. means and implies. A decree is the complete and final observation/judgment rendered by the Court of Justice after deciding the disputes between the parties. While many people think that receiving a favorable order/judgment is the final and conclusive step in the litigation process, it may come as a surprise to people that there is an additional step in the litigation process which is “the execution”. Execution is the process by which one can get the order and what it involves, literally, executed. The process of initiating the enforcement process only takes place after the Court has pronounced its judgment and the judgment has become final.
For example: in a dispute between Party A and Party B, Party A filed a claim against Party B for the recovery of an amount “X”. The court, after deciding the dispute, comes to the final conclusion that Party B owes money to Party A. It thus orders Party B to pay the sums due within a time prescribed to Party A by through his judgment.
Is this sufficient for party A to receive the sum and party B to pay? Well it should be but in some cases it isn’t. In cases where the parties do not intend to pay, even the court order is not sufficient and therefore enforcement of such orders is incumbent.
In such situations, even after receiving a favorable order, the party receiving a favorable order (holder of the decree) waits for the opposing party (judgment debtor) to act. After the final conclusion of the case, the party must not wait for the opposing party to take steps and must proceed with the filing of a request “for the execution of a decree”.
So to speak, the procedure for the execution of the decree begins when the judgment has reached its final character and there is no appeal or request for review filed/pending before the Court of Justice.
There may be several situations such as arbitration proceedings or civil suits where the execution of the decree becomes necessary since the holder of the decree is unable to obtain the required relief from the debtor.
What is execution?
Enforcement is a process by which the holder of the decree “enforces the decree”, adopted by the Court of Justice. Execution is the final and conclusive step in civil litigation. Although the term “execution” was not defined in the Code of Civil Procedure 1908, Articles 36 to 74 and Ordinance 21 of the Code of Civil Procedure 1908 deal with the execution of the decree. By initiating the Enforcement process, the Holder of the Decree has taken steps to realize the fruits of the Decree, that is to say to recover the sums due from the Judgment Debtor.
Who can request execution
The enforcement process is intended and planned for the purpose of ensuring that an aggrieved party, who has received a favorable order, is able to obtain what has been rightfully awarded to him.
- Decree holder
- In the event of the death of the holder of the decree, legal representative of the holder of the decree
- Any person claiming under the Holder Decree
Enforcement: how and when to file a request for enforcement
In order to proceed with the execution of a decree, the first and main step that the holder of the decree must take is to file a written request before the court which passed the decree or the court to which the decree was sent for execution. Until and unless there is a stay of the execution procedure by the Court of Appeal, the holder of the decree may prefer the request for execution of the decree at any time after obtaining the decree.
Although the holder of the decree can file this request for execution of the decree at any time after the adoption of the decree, there is however a period of 12 years from the date of its adoption during which the holder of the decree or his legal representative may prefer such a request.
- The holder of the decree must file a written petition requesting the execution of the decree with the court which passed the decree or the court to which it is transferred. The request for execution must contain certain essential elements such as the lawsuit number, the amount to be recovered from the judgment debtor, the interest calculated on the unpaid amount, the mode of execution and any other assistance required;
- Once the application has been granted, a notice is issued to the judgment debtor in accordance with Rule 22 of the Code of Civil Procedure 1908. Under this notice, the judgment debtor is given the opportunity to appear in court executing the decree;
- In the event that, even after receipt of the notice, if the Judgment Debtor does not appear before the Court, the Court, at the request of the Judgment Holder, may proceed to issue a warrant of seizure of moveable/real estate of the Judgment Debtor or issue a Notice of Arrest of the Judgment Debtor;
- The bailiff, when issuing the warrant, will attach this warrant for the seizure of assets at the premises of the judgment debtor. Thereafter, a period of two weeks is granted to the Judgment Debtor to come forward and pay the amounts due. If the Debtor of the Judgment does not appear, the bailiff in agreement with the Holder of the Decree will proceed with the steps for the sale of the Immovable Property;
- Once the sale is concluded, the proceeds of the sale are given to the Holder of the Decree to recover his arrears. At the end of the entire procedure, the bailiff files a report with the court executing the decree.
Ordinance 21 of the Code of Civil Procedure 1908 gives an exhaustive, elaborate and detailed process of the execution of the decree and also explains the different ways of executing the decree in court.
The steps above clearly clarify the procedure for executing the decree. It obviously follows from the foregoing that the Execution is the final and conclusive stage of the litigation and ends when the Holder of the Decree recovers his sums due. The legislature, intending to protect the interests of the holder of the decree, has incorporated these provisions into law, which is like a life of money for any holder of the decree.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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