modes of execution of decree.

 

INTRODUCTION

Execution of decree or court order is a final stage in every civil litigation, there are three stages in civil litigations to mention them, one is institution of litigation, adjudication of litigation and implementation of litigation which in an alternate name may be called execution stage. Decree as per section 3 of Civil procedure Code[1] means a formal expression of an adjudication which conclusively determines rights of the parties with regard to the controversy between the parties and as a general rule, only a court which passed decree may execute it[2]. There is exception to this general rule, other courts with competent jurisdiction may execute decree from any other courts in hierarchy when it is desirable and necessary to do. The execution process enables the decree-holder to benefit from the fruits of the judgement. A term execution is not clearly given meaning in the Civil Procedure Code, but the expression “execution” simply means a process of enforcing or giving effect to the order or decree of the court of law. Execution of decree is governed under section 31-55 and under order XXI of the Civil Procedure Code.

MODES OF EXECUTION OF DECREE

The attachment and sale of the property of judgment debtor as per section 42(b) and order XXI rule 28-29 of the Civil Procedure Code. Subject to the conditions and limitation of the law, and after application has been made to execute decree by a decree holder, a court which passed a decree or court which receive a decree to execute, may order execution of decree by attachment and sale or by sale without attachment of any property.

The same mode of execution of a decree is provided under rule 28 of order XXI that;

“Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the attachment and sale of his property”

Main advantage of this mode, it is easy to execute and goes direct to cure pecuniary loss of the plaintiff through sale of properties of a judgment debtor, but its main disadvantage is that, there is a possibility of attaching wrong properties or properties co-owned between judgment debtor and third parties not parties to the suit, order XXI r. 57(1) and Section 48. Only sole owned properties of the judgment debtor are capable of being attached, properties which are co-owned by a judgment debtor and another third party are not capable of being attached.

Arrest and detention in prison as per section 42(c), order XXI rule 28 and order XXXVI rule I of the Civil Procedure Code. When an application to execute decree has been made by a decree-holder, a court passed a decree or a court to which decree sent for execution may, order arrest and detention of a judgment debtor when it looks like he obstructs due process of the court or he intend to delay execution of a decree.[3]

As per order XXXVI rule I, where at any stage of a suit the court is satisfied, by affidavit or otherwise that the defendant, with intent to delay the plaintiff, or to avoid any process of the court or to obstruct or delay the execution of any decree that may be passed against him, or is about to abscond or leave the local limits of the jurisdiction of the court; or that the defendant is about to leave Tanzania under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance.

Main advantage of this mode is that, arrest is a direct threat to a judgment debtor which may reminds him to comply to the order of the court, its disadvantage is that, a judgment debtor may apply before court being declared insolvency and he may get released basing on some conditions.

CONCLUSION

An application for execution may be made before a court which passed that particular decree or a court to which decree sent for execution. An application of execution of decree may be made orally or in writing in a special form which is applicable to lodge application of that particular nature, and it must be signed by a decree holder. It must show name of the court where the decree is going to be executed, name of parties to say judgement holder against judgment debtor, facts constituting application and enabling provisions and lastly must be verified by an applicant or applicant legal representative. Mode of application of execution of decree is provided under rule 9 and 10 of order XXI of the Civil Procedure Code.

REFERENCE

BOOKS

D.F. Mulla, Code of Civil Procedure 1908: in 2 volumes.

UDSM, “Civil Procedure Manual, 2002

 

STATUTES

The Civil Procedure Code [CAP. 33 R.E. 2019]

The Law of Limitation Act [CAP. 89 R.E. 2019]

 

OTHER

Yesaya, J., “third party notice in Tanzania”, available at <https://www.tanzanianweb.co.tz/2020/12/third-party-procedure-in-tanzania.html?m=1> ( accessed April 27, 2022).

Yesaya. J, “modes of execution of decree”, available at https://www.tanzanianweb.co.tz/2021/09/modes-of-execution-of-decree.html accessed April 27, 2022.

 

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[1] Civil Procedure Code [CAP 33 R:E 2019]. S.3

[2] Ibid. S.33

[3] Yesaya. J, “modes of execution of decree”, available at https://www.tanzanianweb.co.tz/2021/09/modes-of-execution-of-decree.html accessed April 27, 2022.