Q. Is CPC,1908 Or Limitation Act,1963 Provides Any Time Period For The Disposal Of Execution Petition ?

Q. Is It Mandatory For The Executing Court To Dispose Of The Execution Petition Within 6 Months ?

A. NO

YES

RELEVANT CASE LAW:

RAHUL S SHAH VS. JINENDRA KUMAR GANDHI LL 2021 SC 230 (F.B.)

It may be noted that all these points are elaborately discussed by Hon’ble Apex court in a few landmark judgment, sum up as follows:-

The Supreme Court, while issuing directions to reduce delays in the execution proceedings, observed that an EXECUTING COURT MUST DISPOSE OF THE EXECUTION PROCEEDINGS WITHIN SIX MONTHS FROM THE DATE OF FILING, which may be extended only by recording reasons in writing for such delay.

SQ. The Actual Difficulties Of A Litigant In India Begin When He Has Obtained A Decree. Is It True Even Today ? Discuss The Guidelines Which Court Can Follow To Expedite The Execution Petition ?

SQ. Vide Which Recent Judgment, SC, In Larger Public Interest To Subserve The Process Of Justice So As To Bring To An End The Unnecessary Ordeal Of Litigation Faced By Parties Awaiting Fruits Of Decree And In Larger Perspective Affecting The Faith Of The Litigants In The Process Of Law, Has Directed U/A.142 R/W. A.141/144 Of CoI,1950  All High Courts To Reconsider And Update All The Rules Relating To Execution Of Decrees, Made Under Exercise Of Its Powers Under Article 227 Of The Constitution Of India And Section 122 Of CPC, Within One Year Of Order ?

A. RELEVANT CASE LAW:

 THE GENERAL MANAGER OF THE RAJA DURBHUNGA V. MAHARAJA COOMAR RAMAPUT SING (1871-72) 14 Moore’s I.A. 605

Reiterated recently in,

RAHUL S SHAH VS. JINENDRA KUMAR GANDHI LL 2021 SC 230 (F.B.)

In the above judgment, it is clarified that till such Rules are brought into existence, the following directions shall remain enforceable:

SUITS RELATING TO DELIVERY OF POSSESSION

1. In SUITS RELATING TO DELIVERY OF POSSESSION, the court must examine the parties to the suit under ORDER X in relation to third party interest
2.  and further exercise the power under ORDER XI RULE 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.
3. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.

1. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.
2. Under ORDER XL RULE 1 OF CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.

1. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.

MONEY SUIT:

1. In a MONEY SUIT, the Court must invariably resort to ORDER XXI RULE 11, ensuring immediate execution of decree for payment of money on oral application.
2. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit.

1. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.

1. The Court exercising jurisdiction under SECTION 47 OR UNDER ORDER XXI OF CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner.

1.  Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.
2. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.

1. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of RULE 98 OF ORDER XXI as well as grant compensatory costs in accordance with SECTION 35A.

1. Under SECTION 60 OF CPC the term "…in name of the judgment- debtor or by another person in trust for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.

1. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.

1. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.

1. The JUDICIAL ACADEMIES MUST PREPARE MANUALS and ensure CONTINUOUS TRAINING through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts.

SQ. Judgment Debtor Sometimes Misuses The Provisions Of ORDER XXI RULE 2 & ORDER XXI RULE 11 To Set Up An Oral Plea. How You As An Executing Court Can Control Such Abuse Of Law ?

A. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the Courts first issue SHOW CAUSE NOTICE asking the judgment debtor as to why the decree should not be executed as is given under Order XXI Rule 22 for certain class of cases.

 However, this is often misconstrued as the beginning of a new trial.

For example, the judgement debtor sometimes misuses the provisions of Order XXI Rule 2 and Order XXI Rule 11 to set up an oral plea, which invariably leaves no option with the Court but to record oral evidence which may be frivolous.

This drags the execution proceedings indefinitely. This is anti-thesis to the scheme of Civil Procedure Code, which stipulates that in civil suit, all questions and issues that may arise, must be decided in one and the same trial.

 Order I and Order II which relate to Parties to Suits and Frame of Suits with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go.

SQ. How Can You Ensure That A Clear, Unambiguous, And Executable Decree Is Passed In Any Suit ?

A. To avoid controversies and multiple issues of a very vexed question emanating from the rights claimed by third parties, the Court must play an active role in deciding all such related issues to the subject matter during adjudication of the suit itself and ensure that a clear, unambiguous, and executable decree is passed in any suit.

SQ. Whether Execution Is A Continuous Process?

A. YES

RELEVANT CASE LAW:

SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA V SITA SARAN BUBNA (2009) 9 SCC 689

wherein it recommended that the LAW COMMISSION AND THE PARLIAMENT should bestow their attention to provisions that enable frustrating successful execution.

The Court opined that the Law Commission or the Parliament must give effect to appropriate recommendations to ensure such amendments in the Code of Civil Procedure, 1908, governing the adjudication of a suit, so as to ensure that the process of adjudication of a suit be continuous from the stage of initiation to the stage of securing relief after execution proceedings.

The execution proceedings which are supposed to be handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice.

SQ. What Is The Scope Of Section 47 Of CPC During Execution Of Decree?

A. It contemplates adjudication of LIMITED NATURE of issues relating to EXECUTION, DISCHARGE OR SATISFACTION (EDS) of the decree and is aligned with the consequential provisions of Order XXI.

Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision.

SQ. What Are The Two Essential Requisites Which The Executing Court Have To Be Keep In Mind  For The Applicability Of Section 47 ?

A. For the applicability of the section, two essential requisites have to be kept in mind.

Firstly, the question must be the one arising between the parties and

secondly, the dispute relates to the EXECUTION, DISCHARGE OR SATISFACTION of the decree.

SQ. What Is The Object Behind Section 47 CPC ?

A. The objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.

Sq. Can An Executing Court Go Beyond The Decree?

A. NO

The aforesaid provisions contemplate that for execution of decrees, Executing Court must not go beyond the decree.

Note: In RAHUL (supra) case, it is painfully observed that however, there is steady rise of proceedings akin to a re-trial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to.

SQ. The General Practice Prevailing In The Subordinate Courts Is That Invariably In All Execution Applications, The Courts First Issue Show Cause Notice Asking The Judgment Debtor As To Why The Decree Should Not Be Executed As Is Given Under Order XXI Rule 22 For Certain Class Of Cases. Is This  Anti-Thesis To The Scheme Of Civil Procedure Code, Which Stipulates That In Civil Suit, All Questions And Issues That May Arise, Must Be Decided In One And The Same Trial ?

A. YES

REASON:

ORDER I and ORDER II which relate to PARTIES TO SUITS and FRAME OF SUITS with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go.

Order I Rule 10(2) empowers the Court to Add Any Party who ought to have been joined, whether as a plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit.

 Further, Order XXII Rule 10 provides that in cases of ASSIGNMENT, CREATION OR DEVOLUTION of any interest during the pendency of the suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come to be devolved.

SQ.  Do You Agree That The Provisions Of The Code As Regards Execution Are Of Superior Judicial Quality Than What Is Generally Available Under The Other Statutes ?

A. YES

RELEVANT CASE LAW

GHAN SHYAM DAS GUPTA V. ANANT KUMAR SINHA AIR 1991 SC 2251

, SC had observed that the provisions of the Code as regards execution are of superior judicial quality than what is generally available under the other statutes and the Judge, being entrusted exclusively with administration of justice, is expected to do better.

With pragmatic approach and judicial interpretations, the Court must not allow the judgment debtor or any person instigated or raising frivolous claim to delay the execution of the decree.

 For example, in suits relating to money claim, the Court, may on the application of the plaintiff or on its own motion using the inherent powers under SECTION 151, under the circumstances, direct the defendant to provide security before further progress of the suit.

The consequences of non-compliance of any of these directions may be found in ORDER XVII RULE 3.