Execution or Enforcement of Indian and Foreign Judgments

Judgment is a decision of a court regarding the rights and liabilities of parties in a legal action or proceeding. Judgment is a final part of the court case. Enforcement of Judgment means enforcing a judicial decision depends upon its nature and also on the discretion of the court. If a judgment does nothing more than declaring the legal right of a person, or a simple divorce decree or a declaratory judgment (Ex. Interpreting a contract or a statue) then no enforcement is needed.

If a judgement orders a party to do or to refrain from doing a certain act or an injunction is issued to a person or an organization, the court itself takes a first step towards enforcement or execution of a judgment by holding in contempt anyone who refuses to obey the order and sentencing him to pay a fine or to go to jail.

Enforcement of Domestic Judgements

To enforce a domestic judgement, the applicant seeking to enforce have to first appoint a lawyer through a power of attorney (Vakalatnama) for representation before the court with jurisdiction to adjudicate the matter. A Court fee is to be paid at the same time for a suit to be instituted. Further, no security cost is required, during the course of hearing until the court orders.

Unless a jurisdiction is specified in a contract which subjects to pecuniary or other limitations as prescribed by law, lawsuits in relation to immovable property must be instituted in the court or to the closest where the property is situated. The place of business or place of residence will also be a factor to be kept in mind by the court to determine the jurisdiction.

Under the Limitation Act, 1963, there is a limitation period to initiate enforcement proceedings. The application for execution must be made within a period of 12 years from the date of decree or order becomes enforceable.

Below is the outline of steps used to carry out enforcement:

1.     The court must issue summons to the defendant as per the procedure set out in law and the practice rules of the High Courts. Despite the summon of the court, if the defendant failed to appear before the court, the matter will be heard and decided ex parte.

2.     Court fees have to be deposited which varies depending on the value of the lawsuit.

Cases where the order of enforcement is applicable:

·       Any order passed by the court determining the liability of the custodian (it is a person to whom the custody of the movable property is given which cannot be conveniently removed or taken in possession) of movable property to compensate the decree-holder for any damages caused due to his default.

·       Any order made against the garnishee.

·       Any order determining the liability of a partner of the firm who was not the party to the original proceedings.

·       Any order made by adjudicating the claim made to the attachment of any property attached in execution of a decree.

·       Any order adjudicating an application filed by the decree-holder for resistance or obstruction to possession of immovable property.

·       Any order adjudicating an application for the dispossession of the third party by decree-holder.

Enforcement of Foreign Judgements

Enforcement of Foreign Judgements are similar to that of Domestic Judgments.

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