When you have got a judgment, the judgment may say that—a judgment has so many things—you have the statement of the facts, the claim of the plaintiff, the claim of the defendant. Then the court will toy around with the interpretation, what evidence they took in, why they disregarded this evidence, why they accepted that evidence, etc., etc. Then finally comes out with the conclusion. Then the court will conclude and say that we think so-and-so is the owner of the property, we think they are entitled to damages of 10 million shillings, etc. Just having that judgment is not enough cause to celebrate. In fact, from there on another job begins for the lawyer. In fact I have got one quote for you from somewhere:
“Execution is not a subject that consumes practitioners, judges or even academics with much enthusiasm. The problems which arise do not usually lead to interesting legal arguments. They usually result in dissatisfied creditors, downcast creditors, infuriated judges and advocates. However, if you think for a moment you will probably come to the conclusion that execution is one of the most important stages of litigation. Some mitigation consist of deciding of intricate questions of law and fact, followed by … by the losing party but by far the largest proportion of mitigation is taken up by cases of debt-collecting types where obtaining judgment is the easy part of the process. The really difficult part in the case arises when the judgment come to be enforced. It is for this reason that execution is probably one of the most important aspects of mitigation in an advocate’s work particularly at the beginning of his career where both sides of debt collection forms a large part of his work,” etc. etc.
Basically what we are saying is that execution is almost like starting another case all over again and it is not exciting for lawyers because by that time they finished arguing. When you go to execution you are going into debt collection. So you move outside the law and move to debt collection.
Execution is when you reduce the judgment to execution
Who may apply for execution?
1. decree holders
2. legal representative of the decree holder
3. the person claiming under the decree holder
4. the transferee of the decree holder
Conditions attached to number 4: Here the decree should have been transferred by operation of law. The application for transfer should have been made to the court that made the decree. The notice should have been given to the transferor and the judgment debtor.
Against whom is the execution done?
1. the judgment debtor
2. the legal representative of the judgment debtor (only liable to the extent of the property of the deceased).
3. where the court passes a decree, the person in whose favour it is passed is known as a decree holder. The decree can also be executed against the property of the judgment debtor. It can also be executed against the person of the judgment debtor. This means you can put them to civil jail.
Which court executes the decree?
Section 30 –The decree may be executed by the court that passed the decree or by the court to which it is sent for execution.
Upon the application of the decree holder the court that passed the decree may send it to another court for execution. But there are four conditions that must be satisfied before this transfer is allowed:
1. if the judgment debtor actually and voluntarily resides or carries on business or works for gain within the local limits of the jurisdiction of such other court.
2. if the judgment debtor has no property within the local limits of the jurisdiction of the court which passed the decree.
3. where the decree directs the sale of immovable property situated outside the local limits of the jurisdiction of the court that passed the decree
4. where the court that passed the decree considers for any other reason to be recorded that such other court should execute the decree.
Where the decree is sent
Order 22 rule 4-Where the court sends decree for execution by another court, it should send-
(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unexecuted; and
(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.
The court to which the decree is sent will cause the copies and certificate to be filed without any further proof of the decree unless for some other reasons
once you obtain a decree you have to make an application for an execution order. So even when an execution order has been made, that order will be forwarded to the court that is going to execute. If the order has not been granted, while we are waiting for the execution order, in that case we will say it has not been granted, there will be a certificate to the effect that an execution order has not been granted, so that that court can be able to do that.