The Supreme Court has issued a slew of directions to be followed by all courts dealing with suits and execution proceedings to speed up the execution of decrees (Rahul S Shah vs. Jinendra Kumar Gandhi).
The judgment was delivered by a Bench comprising former CJI SA Bobde, Justices L Nageswara Rao, and S Ravindra Bhat.
The apex court also directed all High Courts to update Rules relating to decrees within one year of the order with an endeavor to expedite the process of execution by using Information Technology tools. The court in its order observed that the execution proceedings which are supposed to be the handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools that are being easily misused to obstruct justice.
The decision came on appeals filed in a dispute that began in Bangalore in 1987 and resulted in several civil and criminal proceedings. The dispute first began as a suit for declaration.
However, the matter went on to include a suit for injunction, possession, execution, land acquisition proceedings, disbursement of compensation, contempt proceedings, writ proceedings, and several petitions in the High Court of Karnataka.
The Court remarked that the appeals portrayed 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 the decree. With a view to reduce delays in execution proceedings and do complete justice, the Court issued the following directions:
In suits relating to the delivery of possession, the court must examine the parties to the suit under Order X in relation to third. party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties. Inappropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property. After examination of parties under Order X or production of documents under Order XI or receipt of the 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 a joinder of causes of action in the same suit.
Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodian legis for proper adjudication of the matter. The Court must, before passing the decree, pertaining to delivery of possession of property ensure that the decree is unambiguous so as to not only contain a clear description of the property but also having regard to the status of the property. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of a decree for payment of money on an oral application.
In a suit for payment of money, before the 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 the suit, using powers under Section 151 CPC, demand security to ensure the satisfaction of any decree. 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 the adjudication of the suit if due diligence was exercised by the applicant.
The Court should allow the 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 the appointment of Commissioner or calling for electronic materials including photographs or video with affidavits. The Court must in appropriate cases where it finds the objection or resistance or claims to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.
Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
The Executing Court may on the 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 the execution of the decree. Further, in case an offense against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt with stringently in accordance with the law. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale, and any other official duties for executing orders issued by the Executing Courts.