The court’s ability to ensure rightful and effective delivery of justice highly depends upon the successful execution of the judgment. In the Nepalese legal system, execution and enforcement of court decisions are distinct based upon the civil law, criminal law, and constitutional law (writ petition) domains. Each of these domains is regulated under a distinct statutory framework.

This article deals with the procedural regulatory framework to enforce a judicial decision under Nepalese law and its purview of relevant statutes, precedents, and codes considering civil law, criminal law, and constitutional law aspects.

Enforcement of Decision: A Civil Law Guide

Enforcement of cases concerning civil law is governed by the Civil Procedural Code 2074 (CPC). The CPC serves as the fundamental and primary guideline with regards to enforcing the decisions concerning the civil law aspect. Below is the procedural mechanism followed in the legal arena:

1. District Court’s role Section 230: Irrespective of the level of court making the final decisions, it falls upon the responsibility of the district court where the plaint was initially/originally heard to execute the judgment. (मुलुकी देवानी कार्यविधि संहिता, २०७४ | Nepal Law Commission.) 
   
2. Enforcement Procedure: In accordance with Section 238 of the CPC, before issuing an order for the execution of the decision, the court requires the decree holder to deposit the following:

• 3% of the claimed amount of the property to be enforced
• A sum of thousand rupees if the claim amount is not specified.
• Upon the submission of the amount, the court notifies both parties of the case concerning the date and location for execution of the judgment. (मुलुकी देवानी कार्यविधि संहिता, २०७४ | Nepal Law Commission,)

3. The matters relating to registration, de-registration, or transmissions of matters are concerned with Section 239 of the CPC; the court, for the purpose of the execution of the judgment, sends a precept to the concerned office and also asks the party to appear in that office within 21 days. If the party appears before the office within the given time frame, the judgment would be executed within three days.
   
4. For the judgments relating to preemption, any party recognized by the court as the party to receive the preemption shall appear before the court to obtain the preemption of the property or receive the deposited amount. The court shall then send the receiver to the concerned office, and the concerned office shall deliver the receivable to the preemptee within seven days.
   
5. Partition is one of the most recurring cases, especially in the Nepalese context. The court provisions for the execution of partition in Section 241 of the CPC state that, upon receiving the judgment, the concerned court brings into effect the judgment within six months. If the partition concerns more than one coparcener and one of the coparceners is absent, the court serves a fifteen-day notice for such coparcener to arrive.
   
   Upon the arrival of an absent co-partner, the partition takes place in his/her presence. Otherwise, the partition takes place without the coparcener being present.

6. Recovery of Claimed Amount: In case a judgment holder wishes to recover the claimed amount, the debtor recognized by the court shall be given a time of fifty days to pay the claimed amount by cash, goods, or checks. If the debtor is not present in the court or fails to pay the amount, the judgment holder can also make a petition to the court for the recovery of the claimed amount from the debtor’s property as per Section 242 of the CPC.

Therefore, the Civil Procedural Code can be regarded as the soul of justice execution. CPC mandates the procedure that ought to be followed during justice execution, and it also categorizes different procedures to deal with a wide range of cases concerning civil matters.

Criminal Case: Decision Execution Guide 

The execution of judgment concerning criminal cases is primarily guided by the Muluki Criminal Procedural Code 2017 (MCPC). Chapter 15 of the MCPC governs the provisions regulating the execution of decisions concerning criminal law.

Similar to that of civil law cases’ regulatory framework, the District Court where the charge sheet or plaint was initially filed is vested with the prime responsibility of judgment execution (The National Criminal Procedure (Code) Act, 2017) in accordance with Section 152 of the MCPC. Any court that delivers a judgment in any case shall establish a record of the judgment and send a copy of the judgment to the concerned District Court. 

Unlike in the cases of normal nature, where execution of judgement takes place only after the judgement is delivered by the highest appellate court, in criminal cases of a grievous nature, judgements are executed from the court of first instance itself (Aryal, 2020, 432).

Upon receiving the judgment, if the person sentenced to imprisonment is present in the court, then the court shall forward the person directly to the prison, and if the person is not present in the court or in custody, then the court shall write to the concerned police office to make an arrest of such person (फैसला कार्यन्वयन निर्देशिका, २०७५). The court also has authority to attach and freeze the property of such a person against whom a warrant has been issued and who has not been arrested. If the person does not get arrested even until six months from the date of issue of the warrant, then the amount of fine or compensation payable can be claimed from the property attached or also by auctioning it.

Execution of criminal cases also takes into account the principle of restorative justice, as in accordance with Section 155, in view of the age of the offender, if the offender is convicted in the first instance or the offense is punishable by a sentence of imprisonment for a term of one year or less and the court does not consider it appropriate to confine the person in prison, the offender can be forfeited from the liability of imprisonment if he or she makes payment money in lieu along with a deed stating his/her good conduct.

Therefore, MCPC Chapter 15 ensures prompt and systematic execution of judgment of the cases. Unlike in the civil cases where parties to the case have to concern themselves with the court time and again, it falls upon the responsibility of the government and its agents to deal with the procedural aspect of judgment execution. It can also be witnessed that judgement and execution of criminal cases are both punitive and restorative at the same time.

Execution of Constitutional Judgments: Writ Implementation

The Constitution of Nepal 2072 (2015), which acts as the soul and spirit of the country, ensures fundamental rights for all the citizens of the country. Moreover, it also ensures protection and provides a framework for the enforcement of these fundamental rights.

In particular, Article 133 and Article 144 provide provisions for writ petitions whose prime function is to ensure remedies for persons whose fundamental rights are encroached upon (The Constitution of Nepal). These articles provide for the jurisdiction of the Supreme Court and the High Court, respectively, to issue appropriate orders and writs concerning the following:

• Habeas Corpus: Release of Unlawful detention,
• Mandamus: Directing public authority to perform its legal duty,
• Certiorari: Quashing illegal administrative or judicial decisions,
• Prohibition: Restraining unlawful actions of government officials,
• Quo Warranto: Challenging the legality of public office occupation,

On the contrary, the District Court is also vested with the authority to dispense petitions of habeas corpus only as per Article 151 of the constitution.

The constitution vests the authority in all three courts to use their extraordinary power in order to provide appropriate remedies and enforce such rights of the people that have been encroached upon.
Article 128 also establishes the Supreme Court as the court of record, and all other courts and judicial bodies fall under its purview. Similarly, the Supreme Court also has the power to inspect, supervise, and give necessary directives to all and any subordinate bodies so as to ensure the enforceability of the cases tried by it.

Conclusion

Finally, the constitution explicitly mentions that all must abide by the interpretation of the constitution, law, or any legal principle laid down by the Supreme Court, which ensures that justice dispensed under the extraordinary jurisdiction is followed by all of the subordinate bodies to the fullest extent possible, and if any subordinate body is found not to be following the judgment, then the Supreme Court has the authority to initiate proceedings and impose punishment for contempt of exempting from justice execution.

The soul of justice lies in its execution and implementation. The Nepalese legal system has ensured provisions that will lead to the successful execution of the judgments through different acts and statutes as mentioned in the above premises. The Civil Procedural Code deals with civil matters, the Muluki Criminal Procedural Code deals with criminal matters, and the Constitution itself ensures the execution of fundamental rights. These three different legal statutes, along with other supplementing statutes such as the District Court Rule, Justice Execution Directive, etc., ensure that the rights of the citizens are not just limited to legal texts but are also ensured and enforced.

Justice is ensured upon its execution, and the Nepalese legal system has a balanced approach to ensure that justice is executed and the constitution is upheld with respect to the nature of the case.