0

In short, my question is that are execution proceedings mandatorily required to be concluded before a decree holder may enjoy the fruits of his decree against the judgment debtor OR are execution proceedings only required to be initiated when the judgement debtor fails to comply with the decree.

My query pertains to common law jurisdictions and arbitration, specifically w.r.t. to that in India.

Suppose, one has obtained a decree, or arbitral award for that matter, in his favour, through which the claimant/plaintiff has obtained the title of certain immovable property and also the defendant/respondant has been directed to hand over the possession of the said property to the former. Allow me to add, that this decree/award has been passed with the consent of the defendant/respondant.

Now, supposing that the judgement debtor has complied with the decree, but still the decree holder is required to get the property mutated under his name in municipal/revenue records. Are municipal authorities bound to honour an un-executed decree/award? Are we required to get the decree duly executed by the execution court before it obtains the force of law?

1

Are municipal authorities bound to honour an un-executed decree/award?

In the case of an award of declaratory judgment, the example using in the question, yes, the municipal authorities must honor it in the absence of a writ of execution. Writs of execution for a money judgments, not awards granting declaratory or injunctive relief.

Getting a writ of execution on a declaratory judgment is like "loading a sword with ammunition", it is a category error even though it makes grammatical sense.

If the municipal authorities failed to comply with the court's order, you would go back to the court to secure a different kind of writ, called a writ of mandamus to compel the municipal official to take non-discretionary action like honoring a court order for declaratory or injunctive relief.

Are we required to get the decree duly executed by the execution court before it obtains the force of law?

Arbitral awards have to be confirmed by a court before they can be enforced in an involuntary process, regardless of the nature of the order or the type of relief obtained.

A court order granting declaratory or injunctive relief does not have to be executed upon to have an enforceable legal effect.

A money judgment does have to have a writ of execution in place to be enforceable against real property or against tangible personal property. A money judgment is enforced vis-a-vis many kind of intangible assets via a writ of garnishment, rather than a writ of execution.

The term writ is a word that means a court order directing a government official to do something or to refrain from doing something, usually in a case where the government has not been accused of any wrongdoing or held liable for anything.

| improve this answer | |
  • Thanks your detailed answer! In the Indian Arbitration Act 1996, which is based on the UNICITRAL Model, there is no express provision which says that an award of the arbitral tribunal must be confirmed by court. Also, the chapter regarding execution does not mentiones the conditions when, if at all, it is mandatorily required to be executed. – Love Bites Jun 13 at 14:39
  • You said that, "Arbitral awards have to be confirmed by a court before they can be enforced in an involuntary process, regardless of the nature of the order or the type of relief obtained." I'm assuming, and please correct me if I'm wrong, that arbitral awards are not required to be executed if the judgement debtor is compliant. – Love Bites Jun 13 at 14:46
  • @LoveBites The UNICITRAL model is not comprehensive in this regard because it starts getting into the procedural details of national and regional court systems. But, it is an implicit understanding that arises from India's common law heritage and the overall structure of a common law court system. If a judgment debtor simply pays an arbitral award or does what the other party wants, then there is no need to use further involuntary process and so no confirmation of the award is necessary. – ohwilleke Jun 15 at 0:01
  • Thank you very much for confirming the theory. I'm truly greatful! – Love Bites Jun 17 at 11:12

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.