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2021 SCC OnLine SC 341

In the Supreme Court of india

(BEFORE S.A. BOBDE, C.J. AND L. NAGESWARA RAO AND S. RAVINDRA BHAT, JJ.)

Civil Appeal Nos. 1659-1660 of 2021

(@ Special Leave to Appeal Nos. 7965-7966/2020)
Rahul S. Shah … Appellant(s);
Versus
Jinendra Kumar Gandhi and Others … Respondent(s).
With
Civil Appeal Nos. 1661-1662 of 2021
(@ SLP (C) Nos. 11859-11860/2020)
With
Civil Appeal Nos. 1663-1664 of 2021
(@ SLP (C) Nos. 11792-11793/2020)
Civil Appeal Nos. 1659-1660 of 2021 (@ Special Leave to Appeal Nos. 7965-
7966/2020), Civil Appeal Nos. 1661-1662 of 2021 (@ SLP (C) Nos. 11859-
11860/2020) and Civil Appeal Nos. 1663-1664 of 2021 (@ SLP (C) Nos. 11792-
11793/2020)
Decided on April 22, 2021
ORDER
1. Leave granted.
2. The present appeals arise out of the common judgment and order dated 16th
January, 2020 of the Karnataka High Court which dismissed several Writ Petitions. The
course of the litigation highlights the malaise of constant abuse of procedural
provisions which defeats justice, i.e. frivolous attempts by unsuccessful litigants to
putting up spurious objections and setting up third parties, to object, delay and
obstruct the execution of a decree.
3. The third respondent (hereafter referred to as ‘Narayanamma’) had purchased a
property measuring 1 Acre (Survey No. 15/2) of Deevatige Ramanahalli, Mysore Road,
Bengaluru (hereafter referred to as ‘suit property’) under the sale deed dated
17.03.1960. The suit land was converted and got merged in the municipal limits of
Bengaluru and was assigned with Municipal Corporation No. 327 and 328, Mysore
Road, Bengaluru. Narayanamma sold 1908 square yard of the suit property in
Municipal Corporation (Survey No. 327) to 2nd and 3rd respondents (hereafter referred
to ‘Jitendra’ and ‘Urmila’) under a sale deed dated 13.05.1986. This was demarcated
with the sketch annexed to the sale deed. The adjacent portion of property, Survey No.
327 was sold to Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi by another sale
deed dated 13.05.1986. This property was also demarcated in the sketch and clearly
shows its dimensions and boundaries annexed to the sale deed. Therefore, the first
two respondents, Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi became
absolute owners of the suit property with the totally admeasuring of 3871 square
yards. Thus, Narayanamma had sold about 34,839 square feet of the property out of 1
Acre land (43,860 square feet) owned by her. Subsequently, after the sale of the
major portion of the said property to the first two respondents and their brother,
Narayanamma who is the mother of A. Ramachandra Reddy the fourth respondent
(hereafter called “the vendors”) filed a suit1 for declaration that the two sale deeds in
favour of the first two respondents (also called “purchasers” or “decree-holders”) as
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well as against Shri Moolendra Kumar Gandhi etc. were void. The vendors and Shri
Anjan Reddy (deceased respondent no. 8) on 25.03.1991 executed a registered
partition deed. This document did not advert to the sale deed executed in favour of the
purchasers and Shri Moolendar Kumar Gandhi and Smt. Baby Kumari Gandhi. The
purchasers were restrained by an injunction from entering the property which
Narayanamma claimed was hers.
4. During the pendency of the suit for declaration, the first purchasers filed two
suits2 against the vendors for possession. During the pendency of these suits on
11.02.2000 by two separate sale deeds Shri Dhanji Bhai Patel and Shri Govind Dhanji
Patel purchased 7489 square feet and 7650 square feet respectively, out of the residue
of the property owned by Narayanamma. While so, during the pendency of the suits
instituted by the purchasers, the vendors again sold the suit property i.e. the land to
the present appellant (Rahul Shah) and three others (Respondents no. 5-7) by four
separate sale deeds.3 In the possession suits the vendors filed counter claims (dated
18.04.1998). During the pendency of proceedings the purchasers sought for transfer
and mutation of property in their names which were declined by the Municipal
Corporation; this led to their approaching the High Court in Writ Petition No.
19205/1992 which was disposed of with a direction4 that after adjudication of the
injunction suit (filed by the vendors) the khata be transferred.
5. The proceedings in the injunction suit filed by the vendors and the other two
suits filed by the purchasers were clubbed together. The City Civil Judge, Bangalore by
a common judgment dated 21.12.2006 allowed and decreed the suits for possession
preferred by the purchasers and dismissed the vendor's suit for injunction. The decree
holders preferred execution proceedings.5 They filed applications under Order XXI Rule
97 of the Code of Civil Procedure (CPC) since the judgment debtors/vendors had sold
the property to the appellant and respondents no. 4 to 7. The appellant i.e. a
subsequent purchaser filed objections.
6. During the pendency of the proceedings the front portion of the suit property
bearing Municipal Corporation No. 327, Mysore road, Bangalore became the subject
matter of the acquisition for the Bangalore Metro Project. The decree holders (the first
two respondents) preferred objections to the proposed acquisition and further claimed
the possession. In the meanwhile, aggrieved by the dismissal of the suit and
decreeing the suit for possession, Narayanamma filed first appeals in the High Court6 .
In these proceedings it was brought to the notice of the High Court that the suit
properties had been sold to the appellant and respondents no. 4 to 7. By an order7 the
High Court directed the vendors to furnish particulars with respect to the sale, names
of the purchaser and area sold etc. By common judgment dated 22.10.2009 the High
Court dismissed all the appeals pending before it. The Special Leave Petition preferred
by the vendors8 was also dismissed by this Court on 23.07.2010.
7. Apparently, during the pendency of execution proceedings before the trial Court
the vendors again sold the properties in favour of Shri P. Prem Chand, Shir Parasmal,
Shri Kethan S. Shah & Ors. and Shri Gopilal Ladha & Shri Vinay Maheshwari by
separate sale deeds9 . This was brought to the notice of the High Court which had
dismissed the appeal preferred by the vendors.
8. During the pendency of the proceedings before the High Court Narayanamma,
the appellant and respondents no. 4 to 7 filed indemnity bonds claiming that there
was no dispute with respect to the suit property and claimed the compensation in
respect of portions that were acquired. These were brought to the notice of the High
Court which passed an order in W.P. No. 9337/2008. The court considered all the
materials and held that the compensation could not have been dispersed to the
vendors, the appellant and Respondents no. 4 to 7. The High Court issued directions to
them to deposit the amounts. An appeal was preferred by the appellant and the said
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respondents, against that order, which was rejected by the Division Bench.10
Consequently, an enquiry was held and order was passed by the Land Acquisition
Officer on 01.08.2011 directing the appellant, the vendor and others to redeposit the
amounts. By an order passed in another Writ Petition No. 2099/201111 the High Court
held that the decree holder/purchasers were entitled to transfer of khata of property in
their names and directed to hold an inquiry against the Revenue Officer. Since the
orders of the High Court, with respect to the deposits of amounts, were not complied
with, contempt proceedings were taken.
9. The High Court in another order dated 19.04.2013 directed Narayanamma and
respondents no. 4 to 7 to deposit the amounts. That order in contempt proceedings
(C.C.C. No. 280/2011) was challenged before this Court in a special leave petition12
which was dismissed on 05.11.2014. Thereafter, apparently in compliance with the
High Court's direction for transfer of khata the municipal and revenue records reflect
the names of the decree-holder/purchasers.
10. The execution proceedings initiated by the decree holders resulted in the court
requiring parties to lead evidence, in view of the obstruction by the appellant and
respondents no. 4 to 7, by its order dated 23.04.2010. When obstruction proceedings
were pending under Order XXI Rule 97, the judgment debtor i.e. the vendors initiated
criminal proceedings in 2016 against the decree holders; these were stayed by the
High Court on 20.06.2016 and later quashed on 16.03.2017. The judgment debtors
had alleged forgery of certain documents. The High Court directed appointment of
Court Commissioner to identify and measure the property. At the time of disposal of
the criminal proceedings High Court directed that the Commissioner's report along
with the objections of the Judgment debtors ought to be forwarded to the Executing
Court.
11. In the meanwhile, by an order the Executing Court had appointed the Taluka
Surveyor of BBMP as the Court Commissioner and directed him to visit the spot and
survey and fix the boundaries of decretal property. Recall of these orders was sought
by the judgment debtors; they also sought for reference to forensic examination by a
Handwriting Expert of the sale documents. These two review applications were
dismissed; and on 13.06.2017 the Executing Court declined the application for
forensic examination of documents and also rejected the obstructers' resistance to
execution.
12. All these orders led to initiation of five writ petitions on behalf of the appellant,
and the vendors etc. Three First appeals13 were preferred by obstructers challenging
the decision of the Executing Court dated 15.02.2017. By impugned common order all
these Writ Petitions and appeals were dismissed.
13. It is argued by Mr. Shailesh Madiyal on behalf of the appellant (Rahul Shah)
that the impugned order has the effect of diluting the order of the Executing Court
dated 23.04.2010 with respect to survey of the entire property. It was pointed out by
the counsel for the appellant that there were disputes with respect to boundaries and
identity of the properties as between parties. Referring to the order, it was submitted
that the Court had noticed that the High Court in earlier Writ Petitions had directed the
Special Land Acquisition Officer to hold an enquiry and if necessary refer the matter to
Civil Court under Section 30 of the Land Acquisition Act. In view of all these disputes,
questions especially related to the boundaries and the imprecise nature of the extent
and location of the disputed properties, the impugned order should be interfered with
and the reliefs sought by the appellant be granted. Learned Counsel submitted that
subsequently by order dated 31.10.2014 the Executing Court erroneously held that
Sketch Exhibit P-26 was drawn by Revenue Authorities whereas in fact it was
introduced by handwritten sketch given by the decree holders.
14. Learned counsel submitted that decree holder's efforts in all the proceedings
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were to confuse the identity of the property and therefore had sought clubbing of both
execution cases; this request was rejected by the Executing Court after concluding
that the property sought to be executed in two cases were different and further that
rights claimed too were distinct.
15. Learned counsel for the appellant in the second set of petitions, i.e. SLP (C) No.
11859-11860 of 2020 and SLP (C) No. 11792-11793 of 2020, on the other hand urged
that the High Court as well as the Executing Court fell into error in holding that what
was sought by the obstructer (i.e. the appellant Gopilal Ladha) was far in excess of
what was left after decree holders had purchased and therefore the conveyances had
overlapped.
16. Mr. Arunava Mukherjee appearing for the second set of appellants also
reiterated the submissions of Mr. Shailesh Madiyal that the decree holders had
intentionally confused the identity of the property. He highlighted that the High Court
acted in error in rejecting the appellants' request for subjecting documents to forensic
examination by handwriting experts. It was submitted that this aspect was completely
overlooked because the appellants' had raised serious doubts with respect to the
genuineness and authenticity of the signatures of the documents.
17. The respondents urged that this Court should not interfere with the findings of
the High Court. Learned counsel reiterated that numerous proceedings were taken out
and that the judgment debtors had sold the very same property three times over - at
least two times after the decree holders purchased their portions of the property and
during the pendency of the suits filed by them. The judgment debtors had sought a
declaration that the sale deeds executed in favour of the decree holders were not
genuine and lost. Thereafter, the judgment debtor and some of the obstructers
succeeded in collecting compensation in respect of the portion of the property that had
been acquired. Ultimately, those amounts had to be disbursed by the Court orders.
The judgment debtors/vendor even sought forensic examination and initiated the
criminal proceedings that were quashed by the High Court. The High Court took note
of all these circumstances and passed a just order, requiring the appointment of a
Court Commissioner to identify and measure the properties. While doing so the
Executing Court has been asked to take into consideration all the materials on record
including the reports submitted by the previous Court Commissioner Mr. Venkatesh
Dalwai.
Discussion and conclusions:
18. It is quite evident from the above discussion that the vendor and her son
(judgment debtors) after executing the sale deed in respect of a major portion of the
property, questioned the transaction by a suit for declaration. The decree holders also
filed a suit for possession. During the pendency of these proceedings, two sets of sale
deeds were executed. The vendors' suit was dismissed - the decree of dismissal was
upheld at the stage of the High Court too. On the other hand, the purchasers' suit was
decreed and became the subject matter of the appeal. The High Court dismissed the
first appeal; this Court dismissed the Special Leave Petition. This became the
background for the next stage of the proceedings, i.e. execution. Execution
proceedings are now being subsisting for over 14 years. In the meanwhile, numerous
applications including criminal proceedings questioning the very same documents that
was the subject matter of the suit were initiated. In between the portion of the
property that had been acquired became the subject matter of land acquisition
proceedings and disbursement of the compensation. That became the subject matter
of writ and contempt proceedings. Various orders of the Executing Court passed from
time to time, became the subject matter of writ petitions and appeals - six of them, in
the High Court. All these were dealt with together and disposed of by the common
impugned order.
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19. A perusal of the common impugned order shows that High Court has
painstakingly catalogued all proceedings chronologically and their outcomes. The final
directions in the impugned order is as follows:
(a) the other challenge by the JDrs and the Obstructors having been partly
favoured, the impugned orders of the Executing Court directing Delivery Warrant,
are set at naught, and the matter is remitted back for consideration afresh by
appointing an expert person/official as the Court Commissioner for accomplishing
the identification & measurement of the decreetal properties with the
participation of all the stake-holders, in that exercise subject to all they bearing
the costs & fees thereof, equally;
(b) it is open to the Executing Court to take into consideration the entire
evidentiary material on record hitherto including the Report already submitted by
the Court Commissioner Shri Venkatesh Dalwai,
(c) the amount already in deposit and the one to be deposited by the Obstructors in
terms of orders of Coordinate Benches of this Court mentioned in paragraph 8
supra shall be released to the parties concerned, that emerge victorious in the
Execution Petitions;
(d) the JDrs shall jointly pay to the DHrs collectively an exemplary cost of Rs.
5,00,000/- (Rupees five lakh) only in each of the Execution Petitions within a
period of eight weeks, regardless of the outcome of the said petitions; and, if,
the same is not accordingly paid, they run the risk of being excluded from
participation in the Execution Proceedings, in the discretion of the learned judge
of the Court below; and,
(e) the entire exercise including the disposal of the Execution Petitions shall be
accomplished within an outer limit of six months, and the compliance of such
accomplishment shall be reported to the Registrar General of this Court.
No costs qua obstructors.
Sd/-
JUDGE
20. The contentions of the Special Leave Petition mainly centre around one or the
other previous orders of the Executing Court with regard identification of the property
and boundary etc. and the subjecting documents to forensic examination. As is
evident from the reading of the final order, the High Court has adopted a fair approach
requiring the Executing Court to appoint a Court Commissioner to verify the identity of
the suit properties and also consider the materials brought on record including the
reports of the previous local commission. In the light of this, the arguments of the
present appellants are unmerited and without any force. The Court also finds that the
complaint that documents ought to be subjected to forensic examination, is again
insubstantial. The criminal proceedings initiated during the pendency of the execution
proceedings - in 2016 culminated in the quashing of those proceedings. The argument
that the documents are not genuine or that they contain something suspicious ex-facie
appears only to be another attempt to stall execution and seek undue advantage. As a
result, the High Court correctly declined to order forensic examination. This Court is of
the opinion that having regard to the totality of circumstances the direction to pay
costs quantified at Rs. 5 lakh (to be complied by the judgment debtor) was
reasonable, given the several attempts by the decree holder to ensure that the fruits
of the judgment secured by them having been thwarted repeatedly. As a result, the
direction to pay costs was just and proper.
21. The High Court has directed the Executing Court to complete the process within
six months. That direction is affirmed. The parties are hereby directed to cooperate
with the Executing Court; in case that court finds any obstruction or non-cooperation it
shall proceed to use its powers, including the power to set down and proceed ex-parte
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any party or impose suitably heavy costs. Therefore, in light of the above observations
these appeals are liable to be dismissed.
22. These appeals portray the troubles of the decree holder in not being able to
enjoy the fruits of litigation on account of inordinate delay caused during the process
of execution of decree. As on 31.12.2018, there were 11,80,275 execution petitions
pending in the subordinate courts. As this Court was of the considered view that some
remedial measures have to be taken to reduce the delay in disposal of execution
petitions, we proposed certain suggestions which have been furnished to the learned
counsels of parties for response. We heard Mr. Shailesh Madiyal, learned counsel for
the petitioner and Mr. Paras Jain, learned counsel for the respondent.
23. This court has repeatedly observed that remedies provided for preventing
injustice are actually being misused to cause injustice, by preventing a timely
implementation of orders and execution of decrees. This was discussed even in the
year 1872 by the Privy Counsel in The General Manager of the Raja Durbhunga v.
Maharaja Coomar Ramaput Sing14 which observed that the actual difficulties of a
litigant in India begin when he has obtained a decree. This Court made a similar
observation in Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna15 ,
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.
24. In respect of execution of a decree, Section 47 of CPC contemplates
adjudication of limited nature of issues relating to execution i.e., discharge or
satisfaction 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. 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. Thus, the objective of Section 47 is
to prevent unwanted litigation and dispose of all objections as expeditiously as
possible.
25. These provisions contemplate that for execution of decrees, Executing Court
must not go beyond the decree. 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.
26. 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 judgment 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.
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27. 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.
28. 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.
29. While CPC under Rules 30 to 36 of Order XXI provides for execution of various
decrees, the modes of execution are common for all. Section 51 of CPC lists the
methods of execution as by delivery of property; by attachment and sale; by arrest
and detention in civil prison; by appointing a receiver or in any other manner as the
nature of relief granted may require. Moreover, Order XL Rule 1 contemplates the
appointment of the Receiver by the Court. In appropriate cases, the Receiver may be
given possession, custody and/or management of the property immediately after the
decree is passed. Such expression will assist in protection and preservation of the
property. This procedure within the framework of CPC can provide assistance to the
Executing Court in delivery of the property in accordance with the decree.
30. As to the decree for the delivery of any immovable property, Order XXI Rule 35
provides that possession thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on his behalf, and,
if necessary, by removing any person bound by the decree who refuses to vacate the
property.
31. As the trial continues between specific parties before the Courts and is based
on available pleadings, sometimes vague description of properties raises genuine or
frivolous third-party issues before delivery of possession during the execution. A
person who is not party to the suit, at times claims separate rights or interests giving
rise to the requirement of determination of new issues.
32. While there may be genuine claims over the subject matter property, the Code
also recognises that there might be frivolous or instigated claims to deprive the decree
holder from availing the benefits of the decree. Sub-rule (2) of Rule 98 of Order XXI
contemplates such situations and provides for penal consequences for resistance or
obstruction occasioned without any just cause by the judgment debtor or by some
other person at his instigation or on his behalf, or by the transferee, where such
transfer was made during the pendency of the suit or execution proceedings. However,
such acts of abuse of process of law are seldom brought to justice by sending the
judgment debtor, or any other person acting on his behalf, to the civil prison.
33. In relation to execution of a decree of possession of immovable property, it
would be worthwhile to mention the twin objections which could be read. Whereas
under Order XXI Rule 97, a decree holder can approach the court pointing out about
the obstruction and require the court to pass an order to deal with the obstructionist
for executing a decree for delivering the possession of the property, the obstructionist
can also similarly raise objections by raising new issues which take considerable time
for determination.
34. However, under Order XXI Rule 99 it is a slightly better position, wherein a
person, other than the judgment debtor, when is dispossessed of immoveable property
by the decree holder for possession of such property, files an application with
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objections. Such objections also lead to re-trial, but as the objector is already
dispossessed, the execution of the decree is more probable and expeditious. In Order
XXI Rule 97 the obstructionist comes up with various objections that ideally should
have been raised at the time of adjudication of suit. Such obstructions for execution
could be avoided if a Court Commissioner is appointed at the proper time.
35. Having considered the abovementioned legal complexities, the large pendency
of execution proceedings and the large number of instances of abuse of process of
execution, we are of the opinion that 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.
36. Some of the measures in that regard would include that before settlement of
issues, the Court must, in cases, involving delivery of or any rights relating to the
property, exercise power under Order XI Rule 14 by ordering production of documents
upon oath, relating to declaration regarding existence of rights of any third party,
interest in the suit property either created by them or in their knowledge. It will assist
the court in deciding impleadment of third parties at an early stage of the suit so that
any future controversy regarding non-joinder of necessary party may be avoided. It
shall ultimately facilitate an early disposal of a suit involving any immovable property.
37. It also becomes necessary for the Trial Court to determine what is the status of
the property and when the possession is not disputed, who and in what part of the suit
property is in possession other than the defendant. Thus, the Court may also take
recourse to the following actions:
a) Issue commission under Order XXVI Rule 9 of CPC.
A determination through commission, upon the institution of a suit shall
provide requisite assistance to the court to assess and evaluate to take necessary
steps such as joining all affected parties as necessary parties to the suit. Before
settlement of issues, the Court may appoint a Commissioner for the purpose of
carrying out local investigation recording exact description and demarcation of
the property including the nature and occupation of the property. In addition to
this, the Court may also appoint a Receiver under Order XL Rule 1 to secure the
status of the property during the pendency of the suit or while passing a decree.
b) Issue public notice specifying the suit property and inviting claims, if any, that
any person who is in possession of the suit property or claims possession of the
suit property or has any right, title or interest in the said property specifically
stating that if the objections are not raised at this stage, no party shall be
allowed to raise any objection in respect of any claim he/she may have
subsequently.
c) Affix such notice on the said property.
d) Issue such notice specifying suit number etc. and the Court in which it is
pending including details of the suit property and have the same published on
the official website of the Court.
38. Based on the report of the Commissioner or an application made in that regard,
the Court may proceed to add necessary or proper parties under Order I Rule 10. The
Court may permit objectors or claimants upon joining as a party in exercise of power
under Order I Rule 10, make a joinder order under Order II Rule 3, permitting such
parties to file a written statement along with documents and lists of witnesses and
proceed with the suit.
39. If the above suggested recourse is taken and subsequently if an objection is
received in respect of “suit property” under Order XXI Rule 97 or Rule 99 of CPC at the
stage of execution of the decree, the Executing Court shall deal with it after taking into
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account the fact that no such objection or claim was received during the pendency of
the suit, especially in view of the public notice issued during trial. Such claims under
Order XXI Rule 97 or Rule 99 must be dealt strictly and be considered/entertained
rarely.
40. In Ghan Shyam Das Gupta v. Anant Kumar Sinha16 , this Court 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.
41. Having regard to the above background, wherein there is urgent need to reduce
delays in the execution proceedings we deem it appropriate to issue few directions to
do complete justice. These directions are in exercise of our jurisdiction under Article
142 read with Article 141 and Article 144 of the Constitution of India 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.
42. All Courts dealing with suits and execution proceedings shall mandatorily follow
the below-mentioned directions:
1. In suits relating to delivery of possession, the court must examine the parties to
the suit under Order X in relation to third
2. 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
7. 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.
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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.
43. 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.
44. The appeals stand dismissed.
———
1 O.S. No. 986/1987
2 O.S. Nos. 9077/1996 and 9078/1996
3 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004
4 Dated 05.11.1998
5
Execution Case Nos. 458-459/2007
6
R.F.A. No. 661-663/2007
7 Dated 10.04.208
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8 S.L.P. (C) Nos. 16349-13651/2010
9 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004
10 Dated 28.10.2009
11
Dated 17.07.2013
12 SLP (C) No. 18031/2013
13 R.F.A. Nos. 441, 468 and 469/2017
14
(1871-72) 14 Moo IA 605
15
(2009) 9 SCC 689
16
(1991) 4 SCC 379 : AIR 1991 SC 2251

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