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 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.
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.{Para 42}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1659-1660 of 2021
RAHUL S SHAH Vs JINENDRA KUMAR GANDHI
Dated: April 22, 2021.
Coram: S.A. BOBDE J, L. NAGESWARA RAO J, S. RAVINDRA BHAT J.
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
1
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
2
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 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
1 O.S. No. 986/1987
3
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.3In
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
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
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,
4 Dated 05.11.1998
5 Execution Case Nos. 458-459/2007
5
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
6 R.F.A. No. 661-663/ 2007
7 Dated 10.04.208
8 S.L.P. (C) Nos. 16349-13651/2010
9 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004
6
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 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.
10 Dated 28.10.2009
11 Dated 17.07.2013
7
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
12 SLP (C) No. 18031/2013
8
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 R.F.A. Nos. 441, 468 and 469/2017
9
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.
10
14. Learned counsel submitted that decree holder’s efforts in all
the proceedings 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
11
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
12
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
13
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.
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
14
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
15
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
16
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 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
17
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
14 (1871-72) 14 Moore’s I.A. 605
15 (2009) 9 SCC 689
18
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
19
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 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.
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
20
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
21
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
22
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
23
possession of such property, files an application with 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
24
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
25
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
26
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
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
16 AIR 1991 SC 2251
27
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 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.
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.
…………………………..CJI.
[S.A. BOBDE]
……………………………….J.
[L. NAGESWARA RAO]
………………………………..J.
[S. RAVINDRA BHAT]
New Delhi,
April 22, 2021.
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