The Hon'ble Supreme Court in the recent matter of Rahul S. Shah v. Jinendra Kumar Gandhi and Ors.1 while deciding upon a property dispute empathetically discussed the plight of the decree holders and the challenges they face in the execution of the decrees. The three-judge bench of former Chief Justice of India S.A. Bobde and Justices L. Nageswara Rao and S. Ravindra Bhatt issued a landmark decision involving 14 (fourteen) directions to all courts that dealt with suits and execution of decrees to expedite the execution of decrees. The directions aim to allow a decree-holder to enjoy the fruits of litigation without any inordinate delay and unnecessary hurdles.
The dispute pertained to a property based in Bengaluru that was purchased in the year 1960 and was the centre stage of litigation from the year 1987. The matter went through multiple rounds of litigation both on the civil and the criminal front, with the execution proceedings filed by the decree holders being pending for over 14 (fourteen) years. In the words of the Hon'ble Supreme Court, the course of litigation in the instant matter highlighted the malaise of constant abuse of procedural provisions which defeat justice. The case involved frivolous attempts by unsuccessful litigants to object, delay and obstruct the execution of the decree. Faced with these circumstances, the Hon'ble Supreme Court passed the orders as discussed below.
Findings of the Hon'ble Supreme Court
The Hon'ble Supreme Court at the outset remarked that it had repeatedly observed that remedies provided for preventing injustice were being misused to cause injustice by preventing a timely implementation of orders and execution of decrees. A catena of decisions2 were relied upon by the Hon'ble Supreme Court to reiterate that the actual difficulties of a litigant in India began when he obtained a decree. It was further observed that execution proceedings which are supposed to be a handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools that are easily misused to obstruct justice.
The Hon'ble Supreme Court then referred to Section 47 of the Code of Civil Procedure, 1908 (CPC) to reiterate that the CPC contemplates adjudication of limited nature of issues relating to execution, i.e., discharge or satisfaction of the decree. The Hon'ble Apex Court ruled that Section 47 was intended to prevent multiplicity of suits and dispose of all objections as expeditiously as possible. However, despite such concrete provisions, there was a steady rise of proceedings akin to a re-trial of the entire dispute at the time of execution. The Hon'ble Supreme Court ruled that this was a failure of realisation of the fruits of the decree and relief which the party sought from the court despite there being a decision in its favour.
A reference was made to the decision in Ghan Shyam Das Gupta v. Anant Kumar Sinha3 to reiterate that a Judge being entrusted exclusively with the administration of justice is expected to do aid the execution of decrees. The Hon'ble Supreme Court observed that the courts must not allow the judgment debtor or any person to raise frivolous claims to delay the decree's implementation. Having regard to the above background, the Hon'ble Supreme Court deemed it appropriate to issue a few mandatory directions to do all courts dealing with suits and execution proceedings to do complete justice. The directions passed by the Hon'ble Apex Court are as follows:
- In suits relating to the delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest 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.
- 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.
- 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.
- Under Order XL Rule 1 of the 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.
- 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.
- 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.
- 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. The court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 of the CPC, demand security to ensure satisfaction of any decree.
- The court exercising jurisdiction under Section under Section 47 or under Order XXI of the CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. 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.
- 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.
- 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.
- Under section 60 of the 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.
- 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.
- 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.
- 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
With the above directions, the Hon'ble Supreme Court directed all the High Courts to reconsider and update their rules relating to the execution of decrees within one year of the date of this order. The Hon'ble Supreme Court further cautioned the High Courts that the amended rules must be in accordance with the CPC and should endeavour to expedite the process of execution with the use of information technology tools. Until the amended rules were brought into effect by the High Courts, the aforementioned shall remain enforceable.
The present decision is a landmark dictum that will prove beneficial to countless decree holders facing unwarranted hurdles in the execution proceedings before various civil courts across India. The trend until now was such that the litigants had to face two battles. Firstly, the litigants had to fight for obtaining a decree in their favour. Secondly, the litigants had to overcome all challenges posed at the time of execution of the decrees. This was akin to having two sets of trials for the same matter and was undoubtedly an abuse of process. However, with the present judgment and its directives in place, we expect that the menace of obstructions brought to the enforcement of decrees would come down significantly.
* The author would like to acknowledge the research and assistance rendered by Harshvardhan Korada.
1. Rahul S. Shah v. Jinendra Kumar Gandhi and Ors., 2021 SCC OnLine SC 341.
2. The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Singh, (1871-72) 14 Moore's I.A. 605; Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna, (2009) 9 SCC 689.
3. Ghan Shyam Das Gupta v. Anant Kumar Sinha, AIR 1991 SC 2251.
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