Seamless And Continuous Process In Suits Till Delivery

Of Relief : Argument For Its Need

Narinder Kumar *

After disposal of a suit by way judgment, a decree follows. The decree may be
executed either by the Court which passes it or by the Court to which the decree
is sent for execution.

Execution of decrees and orders

Part II of Code of Civil Procedure pertains to execution of decrees and orders.

Provisions starting with Section 51 of the Code provide procedure to be followed
in execution. Order XXI CPC also pertains to Execution of decrees and orders.

Application for execution

Where the holder of a decree desires to execute it, he shall apply to the Court,
which passed the decree, or to the officer appointed. Rule 10 of Or.XXI CPC so
provides.

Every application for execution of decree has to be in writing. Such an

application is required to be signed and verified by the applicant or by some other
person acquainted with the facts of the case.

Sub-rule (2) of Rule 11 of Or.XXI CPC contains a tabular form in which the
execution application is to be submitted.

The court, to which such an application is made, may require the applicant to
produce certified copy of the decree.

Rules 24 and 25 provide as to the process for execution, where the requisite
preliminary steps have been taken. Then, there are rules which provide for
different modes of execution of the decrees.

Why an execution application

As noticed above, the holder of a decree, who desires to execute it, has to apply
to the Court. But the question arises as to why the party should be required
to file an application for execution of the decree or order. In other words, why
Courts straightaway do not continue with the proceedings after passing of the
decree, on disposal of the suit by way of judgment?
__________________________
* Special Judge-2, Central District, Tis Hazari Courts, Delhi.
Undisputedly, party comes to Court with certain claim and prayer to have the
fruit. Party does not file claim or pray to the Court for a paper- decree only. When
the party has paid requisite Court fee and followed the due process of law in
disposal of the suit, leading to decree, it remains unexplained as to why the party
should be required to file written application for execution.

Oral execution-application

Interestingly, Rule 11 of Or.XXI CPC provides for oral application, and not any
written application for immediate execution of a decree for payment of money.
Such oral application is permissible at the time of passing of the decree, where
same is required to be executed by arrest of the judgment debtor, if the judgment
debtor is available within the precincts of the Court.

In a suit for money, plaintiff wants money. In case of a suit for property, he wants
the property. Plaintiff would not feel satisfied if he is given by the Court only a
paper decree. He may feel more dissatisfied where he is asked to file application
for execution of such a decree for money or property.

Aforesaid procedure of making of oral application for execution should be allowed

to be followed by the Courts for execution of other decrees too. In other words,
requirement of the decree-holder filing a written application for execution
should be done away with.

In case of a decree for recovery of money, only on making of oral application,

Court should be required to fix the date for payment of the requisite sum by the
judgment debtor. Where the Judgment debtor fails to comply with the decree
within the stipulated date, Court may proceed with the procedure for realization
of the amount under the money decree. Such a step would be in the interest of
justice and avoid filing of an application for execution.

Views expressed by Apex Court

On the present requirement of filing of written application for execution of a

decree, reference need to be made to the views expressed by Hon’ble Apex Court
in Shub Karan Bubna v. Sita Saran Bubna.1

In the instant case in the year 1960, the first respondent and his mother filed a
suit against the petitioner and two others, in the Court of the First Additional
Judge, Muzaffarnagar for partition and separate possession of their one-third
share in the plaint scheduled properties i.e. three non-agricultural plots and
some movables and also for rendition of accounts.

The suit was contested. It was decreed on 25-2-1964. Court ordered a

preliminary decree for partition in regard to the one-third share of the plaintiffs

1
(2009) 9 SCC 689
in the said plots and a final decree to be drawn up through appointment of a
Commissioner for actual division of the plots by metes and bounds.
Feeling aggrieved, the petitioner and others filed appeal before High Court, but
the appeal was dismissed on 29-3-1974.

On 1.5.1987 the first respondent filed an application for drawing up final decree.
On the other hand, the petitioner filed an application on 15-4-1991 with prayer
for dropping the final decree proceedings on the ground that same were barred
by limitation. The application was dismissed by the trial court holding that once
the rights/shares of the plaintiff had been finally determined by a preliminary
decree, there was no limitation for an application for affecting the actual
partition/division in accordance with the preliminary decree, as it should be
considered to be an application made in a pending suit.

The said order was challenged by the petitioner by way of a revision petition.
Revision petition came to be dismissed by the High Court.

It led to filing of special leave petition by the petitioner before Hon’ble Apex Court
seeking leave to appeal against said decision of the High Court.

Before Hon’ble Supreme Court, following contentions were raised on behalf of

the appellant:

(i) when a preliminary decree is passed in a partition suit, a right accrues to

the plaintiff to apply for a final decree for division of the suit property by
metes and bounds;

(ii) that whenever an application is made to enforce a right or seeking any relief,
such application is governed by the law of limitation;

(iii) that an application for drawing up a final decree would be governed by the
residuary Sec. 137 of the Limitation Act, 1963 which provides a period of
limitation of three years;

(iv) that as such right to apply accrues on the date of the preliminary decree, any
application filed beyond three years from the date of preliminary decree (i.e.
12-3-1964) or at all events beyond three years from the date when the High
Court dismissed the defendant's appeal i.e. 29-3-1974 would be barred by
limitation.

In support of this contention, reliance was placed by the petitioner on the

decision of Sital Parshad v. Kishori Lal,2 Jowad Hussain v. Gendan
Singh, and Thakur Pandey v. Bundi Ojha.
3 4

2
AIR 1967 SC 1236.
3
AIR 1926 PC 93
4
AIR 1981 Pat.27
While dealing with the question, whether the provisions of the Limitation Act are
inapplicable to an application for drawing up a final decree, under the caption,
“A suggestion for debate and legislative action”, Hon’ble Court observed in the
manner as:

“23. The century old civil procedure contemplates judgments,

decrees, preliminary decrees and final decrees and execution of
decrees. They provide for a “pause” between a decree and execution.
A “pause” has also developed by practice between a preliminary
decree and a final decree. The “pause” is to enable the defendant to
voluntarily comply with the decree or declaration contained in the
preliminary decree.

The ground reality is that defendants normally do not comply with

decrees without the pursuance of an execution. In very few cases
the defendants in a partition suit voluntarily divide the property on
the passing of a preliminary decree.

In very few cases, defendants in money suits pay the decreetal

amount as per the decrees.

Consequently, it is necessary to go to the second stage, that is, levy

of execution, or applications for final decree followed by levy of
execution in almost all cases.”

Hon’ble Court further observed -

“A litigant coming to court seeking relief is not interested in receiving

a paper decree when he succeeds in establishing his case.

What he wants is relief. If it is a suit for money, he wants the money.

If it is a suit for property, he wants the property. He naturally
wonders why when he files a suit for recovery of money, he should
first engage a lawyer and obtain a decree and then again engage a
lawyer and execute the decree.

Similarly, when he files a suit for partition, he wonders why he has

to first secure a preliminary decree, then file an application and
obtain a final decree and then file an execution to get the actual
relief”.

Why a continuous process after the decree

With the above observations, Hon’ble Court raised the commonsensical query :
why not a continuous process?
Taking into consideration the ordeal which the decree holder faces during
pendency of application for execution of decree, Hon’ble Court went on to
observe:

“The litigant is perplexed as to why, when a money decree is passed, the court
does not fix the date for payment and if it is not paid, proceed with the execution.

Hon’ble Court suggested that when a preliminary decree is passed in a partition

suit, why the court does not forthwith fix a date for appointment of a
Commissioner for division and make a final decree and deliver actual possession
of his separated share.

It is noteworthy that in some of the states, this very procedure, as suggested by

Hon’ble Apex Court, is already been adopted. In other words, after the passing
of preliminary decree in a partition like suit, courts give date for appointment of
Commissioner to find out if partition of the property by metes and bounds is or
is not possible, and there is no need to file an application in this regard.

In view of the above observations, Hon’ble Court raised a clear query as to why
is it necessary for the holder of the decree to remind the court and approach the
court, at different stages?

On which the Focus should be

It has been observed that generally in Trial Courts the focus is on disposing of
cases rather than ensuring that the litigant gets the relief. But the focus should
not only be on early disposal of cases, but also on early and easy securement of
relief for which the party approaches the court. So has been further observed by
the Hon’ble Court.

(a) Role of Trial Judges in execution proceedings

As per observations made by Hon’ble Supreme Court, Trial Court Judges treat
execution proceedings as ministerial functions. Many trial Judges tend to believe
that adjudication of the right being the judicial function. The advice is they
should concentrate on that part. In this way, it has been highlighted that
adequate importance is not being given to the final decree proceedings.

(b) Role of Lawyers in Execution Proceedings

As regards the role played by lawyers, it has been expressed that even among
lawyers, importance is given only to securing of a decree, not securing of relief.
As observed, many lawyers handle suits only till preliminary decree is made,
then hand it over to their juniors to conduct the final decree proceedings and
then give it to their clerks for conducting the execution proceedings.
Many a time, a party exhausts his finances and energy by the time he secures
the preliminary decree and has neither the capacity nor the energy to pursue the
matter to get the final relief.

Taking notice of the fact that where a suit is decreed or a preliminary decree is
granted within a year or two, the final decree proceeding and execution takes
decades for completion, Hon’ble Court has further observed that this is an area
which contributes to considerable delay and consequential loss of credibility of
the civil justice system.

Having regard to all this Court, advice has come that Courts and lawyers should
give as much importance to final decree proceedings and executions, as they give
to the main suits.

Undisputedly, success in a suit means nothing to a party unless he gets the

requisite relief. Therefore, to be really meaningful and efficient, the scheme of
the Code should enable a party not only to get quickly a decree , but to get quickly
the relief as well.

Having regard to all this, Law Commission and Parliament must bestow their
attention on this issue and make appropriate recommendations/amendments
so that the suit becomes a continuous process from the stage of its initiation to
the stage of securing actual relief.

Other Suggestions

In Shub Karan Bubna’s case,5 some other significant observations have also been
made by Hon’ble Supreme Court.

No separate proceedings for enforcement of decree : The present system has been
observed to be one involving a proceeding for declaration of the right, a separate
proceeding for quantification or ascertainment of relief, and another separate
proceeding for enforcement of the decree to secure the relief, is outmoded and
unsuited for present requirements. If there is a practice of assigning separate
numbers for final decree proceedings, that should be avoided. As suggested,
issuing of fresh notices to the defendants at each stage should also be avoided.
The CPC should provide for a continuous and seamless process from the stage
of filing of suit to the stage of getting relief.

In case of execution of money decree : As regards execution of money decrees,

Hon’ble Court has clearly observed that in such suits, the process of suit should
be a continuous process consisting of the first stage relating to determination of
liability and then the second stage of execution and recovery, without any pause
or stop or need for the plaintiff to initiate a separate proceedings for execution.
Same process should be adopted in case of other suits requiring a single decree.

5
Supra n. 1
In Suits for partition and other declaratory suits : As regards claims in suits for
partition and other suits involving declaration of the right and
ascertainment/quantification of the relief, Hon’ble Court has felt that the process
of the suit should be continuous, consisting of the first stage of determination
and declaration of the right, second stage of ascertainment / division /
quantification, and the third stage of execution to give actual relief.

As noticed above, the Code does not contemplate filing an application for final
decree. Therefore, when a preliminary decree is passed in a partition suit, the
proceedings should be continued by fixing dates for further proceedings till a
final decree is passed. Since it is the duty and function of the court, performance
of such function does not require a reminder or nudge from the litigant.

Conclusion

To cap it all, it is advisable that procedure of making of oral application for

execution should be allowed to be followed by the Courts for execution of decrees,
without requiring the decree-holder to file a written application for execution of
the decree to reap the fruit quickly.