(1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of the Court under that sub-section shall include the following powers of the Court which passed the decree, namely:—
(a) Power to send the decree for execution to another Court under section 39;
ADVERTISEMENTS:
(b) Power to execute the decree against the legal representative of the deceased judgment-debtor under section 50;
(c) Power to order attachment of a decree.
(3) A court passing an order in exercise of the power specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution any of the following powers, namely:—
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(a) Power to order execution at the instance of the transferee of the decree;
(b) In the case of a decree passed against a firm, power to grant leave to execute such decree against any person, other than such a person as is referred to in clause (b), or clause (c) of sub-rule (1), of Rule 50 of Order XXI.
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Object—Avoidance of Delay in Execution:
ADVERTISEMENTS:
Sub-sections (2) to (4) have been added to section 42 with a view to avoiding delay in execution proceedings by conferring additional powers on the court to which a decree has been transferred for execution, the additional powers conferred on the transferee court being: (a) to send the decree for execution to another court; (b) to execute the decree against the legal representatives of the judgment-debtor; and (c) to order attachment of a decree. Sub-section (3) however provides that the transferee court shall not have powers in regard to determination of matters which lie within the domain of the courts which passed the decree and which are detailed in that sub-section.
Government Law—Procedural law of Executing Transferred Court—Substantive law of court Passing Decree:
A court to which a decree is transferred for execution has in executing such decree to execute it in accordance with the law of procedure obtaining in that court, but it has to determine the rights and liabilities of the parties in accordance with the substantive law obtaining in the court which passed the decree.
Where a decree passed by the High Court of Calcutta in its original side in respect of a commercial loan is transferred for execution to a court in Bihar, the provisions of the Bihar Money Lenders Act cannot be applied in executing that decree.
Mode of Transfer:
Where a decree is to be sent for execution to another court, the court which passed such decree shall send the decree directly to such other court whether or not such other court is situated in the same State, but the court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the court having such jurisdiction. [Order XXI, Rule 5]
Stay of Execution:
Execution is the culmination of the suit. It is its final stage and the means are employed in due process of law to make a decree or order of a court effective. “Stay of execution”, therefore, means the suspension of the act of completing or carrying into effect the decree or order of a court.
Execution proceedings are commenced when the successful party makes an application in writing to the executing court. When execution is stayed the proceedings, started by the successful party, on an application to the executing court, are suspended pending further orders of the court.
Stay by Appellate Court:
An appeal does not operate as a stay of procedure under a decree or order appealed from nor shall execution of a decree be stayed by reason only of an appeal haying been preferred from the decree.
The appellate court may, however, for sufficient cause, order stay of execution of such decree, which shall be effective from the date of the communication of the order to the court of first instance, but that court may act on an affidavit sworn by the-appellant, based on his personal knowledge, pending the receipt of the stay order from the appellate court. [Order XLI, Rule 5(1)].
If orders are challenged and the appeals are pending one cannot permit a swinging pendulum continuously taking place during pendency of the appeal. The judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended; more so, when appeal is admitted.
Stay by the court which passed the decree:
Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from, the court which passed the decree may, on sufficient cause being shown, order the execution to be stayed. [Order XLII, Rule 5(2)].
Conditions for stay of Execution:
No order for stay of execution shall be made by the appellate court or the court passing the decree as aforesaid, unless the court making it is satisfied
(a) That substantial loss may result to the party applying for stay of execution unless the order is made;
(b) That the application has been made without unreasonable delay; and
(c) That security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. [Order XLI, Rule 5(3).]
Ex parte stay of Execution:
Subject to the provisions of sub-rule 3, the court may make an ex parte order for stay of execution pending the hearing of the application. [Order XLI, Rule 5(4)].
Notwithstanding anything contained in the foregoing sub-rules, in case of money decree where the appellant fails to make the deposit of the disputed amount or furnish the security in respect thereof specified in sub-rule (3) of Rule 1, the court shall not make an order staying the execution of the decree. [Order XLI, Rule 5(3)].
Under Order XXI, Rule 26, C.RC. the court to which a decree has been sent for execution may, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to an appellate court for an order to stay execution. Before making an order to stay execution the court may require such security from the judgment-debtor as it thinks fit.
Under Rule 29 of the same Order the court may, on security or otherwise, stay execution of a decree, until the decision of a suit pending in it, filed by the judgment-debtor against the decree-holder.
In Supreme Court appeals the High Court may stay the execution of the decree appealed from, taking such security from the appellant as the court thinks fit for the; due performance of the decree appealed from, or of any order which the Supreme Court may make on the appeal.
The High Court has also the power to stay execution in view of an application to the Supreme Court for special leave.
In summary suits if the defendant does not enter an appearance and has not applied for leave to defend or if such application has been made and is refused the plaintiff shall be entitled to the judgment forthwith. But the court may, after decree, under special circumstances, stay execution and give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms as the court thinks fit. (Order XXXVII).