SC - Directions For Executing Decrees
RAHUL S SHAH v. JINENDRA KUMAR GANDHI, C.A.1659-1660 of 2021
The Supreme Court of India while noting that as on 31.12.2018, there were 11,80,275 execution petitions pending in the subordinate courts, issued mandatory directions for executing civil decrees in India until the High Courts update their rules.
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 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.
4. 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.
5. 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.
6. 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.
8. 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.
9. 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 CPC, demand security to ensure satisfaction of any decree.
10. 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. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
"We further direct all the 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 the date of this Order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable."
(Emphasis Supplied)
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1ySorry Sir, there is no proactive actions shown by the lower courts in implementation of supreme Court orders and judgements on ground level. Law professionals know this occupation is their bread & butter so they never ask the judiciary for implement the same. In today's digitised world tech savy people are much better placed in terms of case laws anf orders to be produced before the courts. I need just 5 minutes online to reproduce a judgement against an accused. Most of the judgements pronounced by Supreme Courts & High Courts are available real time on my mobile. Some times I feel I can challenge the judiciary & lawyers in terms of substantiating a case with court orders. It's really painful and foolish on our part if a complainant loses a case because of a poor lawyer in absence of knowledge. Finally all court orders are an eye wash with no accountability from the judiciary. Imagine a lady judge working as a junior judge for more than 15 years in the chair without any promotions. So much so a senior lawyer never pleads & argues in front of the said judge since he knows she keeps on just advancing the dates, तारीख पे तारीख, instead je sends a junior to argue in this case.
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3ySir In little professional span, of working in Civil Original and Trial courts, learnt that... The most difficult task is execution of decree. Surprisingly noted that. A Regular Execution Petition ie Partition Decree of Kazies, is pending since 1959 till date. No matter the variety of reasons are there till, it's element of conclusiveness is not assured.
Independent Arbitrator, Mediator, Adjudicator, Conciliator and Litigator.
3yThanks for sharing and refreshing.
Legal Consultant
3yTo know whether under Bombay Municipal corporation Act, 1978, we can execute the Decree.Since, i have done the exercise for execution in one matter,but it was dismissed on the ground that it is not maintainable.Therefore, i filed the Writ Petition.But if the Decree is received by us, how come it is not maintainable,.otherwise, the purpose is not solved.I had argued that under the provisions of Bmc Act, since the amount are not adjusted it becomes money suit.But the judge dusmissed tge execution.Against this order, i filed the Writ Petition and suceeded.Can u guide me on this?
Advocate, Mediator, Mediation Advocacy-
3yThough the intention of the Supreme Court is laudable in expeditious disposal of the execution proceedings, in its application, it would add woe to worry the already muddled field in all proceedings under Order 21 of the CPC. By it's very nature the Rules to Order 21 seeks to balance the rights and entitlements of both the Decree Holder and the Judgment Debtor which apple cart the SC is adding another dimension, namely, the functioning of the Courts in dispensation of justice by Courts. Procedural as it may be, yet Substantial Issues of law are sought to be swept under the Carpet. The future will definitely show in the application of the directions now given by the SC is going to backfire and in sum and substance, instead of expeditious disposal we are going to see multiplication of the proceedings. This is a classic case of overreach of exercise of powers under Article 227 without appropriate amendments and or explanations/provisos to CPC by the legislature. Rules of Procedure cannot abridge substantial law and are subject to the legislation and cannot be read above/into CPC except by the mandate of the legislature. Feeling sorry and embarrassed for the Subordinate Judiciary and the High Courts.