Introduction
Execution proceedings are also accountable for pendencies before courts. Once an individual wins a case in the Court, the next step is to get the decree enforced to avail the real-life benefits of winning the case. Moreover, the opposite party may not directly execute the decree all the time without the intervention of the court. The current NJDG data suggests that 14,19,298 execution petitions are pending in the Subordinate Judiciary. This when compounded with the numbers in the higher judiciary, the pendency data slows the entire justice delivery efficiency. Additionally, the majority of these execution petitions remain pending for decades for a long time. The case does not come to finality unless the execution is complete.
To address this issue of pendency of execution petitions, a three-judge bench of the Supreme Court in March 2021 headed by the then Hon’ble Chief Justice Shri Sharad Arvind Bobde, Justice Shri Nageshwar Rao and Justice Shri Ravindra Bhat in the case of Rahul K Shah v Jitendra Kumar Shah (below) passed guidelines to reform the execution procedure and to expedite the execution proceedings. It directed all the Courts to conclude the execution proceedings within 6 months unless there was a compelling reason otherwise. It instructed the Courts to allow new evidence at the execution stage only in exceptional and rare cases. It also creatively interpreted different provisions concerning execution given under the Code of Civil Procedure,1908 (CPC) in the following manner mentioned below.
New Guidelines for Execution
- Notice of execution not to be sent in a mechanical manner: Courts should not send a notice for execution in a mechanical manner under Section 47, CPC which enlists the reasons under which an execution petition can be challenged.
- Suits for delivery of possession: 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.
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Decree should be unambiguous in terms of description of the property: 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.
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Where possession is not in dispute: 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. 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 joinder of causes of action in the same suit.
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Compensatory cost: 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.
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Immediate execution of Money Suit: 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.
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Evidence recording in exceptional case: 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.
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A liberal reading of judgment debtor name: 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.
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The time period for disposing of execution proceedings: 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.
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Police assistance for the execution of decree: 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 offence 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.
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Training manuals preparation by Judicial Academy: 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.
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Third-party claiming rights in a mechanical manner: 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.
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Security to satisfaction of decree: 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.
- Appointment of Commissioners: It propelled the appointment of a Court Commissioner and a Court Receiver whenever required. These are the officers of the courts who ensure the administration of justice in an efficient and effective manner on issues that require the Court’s vigilance.
The Courts made an effort to improve the entire ecosystem of execution proceedings. It did so by directing the defendants to disclose their assets on oath in payment of money suits. It directed the Courts to give a clear description and status of the property in passing the decree in delivery of possession in a property case. It also instructed Police Stations to aid officials who were working towards the execution of a decree. It further declared that High Courts should update all the rules in relation to execution and directed them to use all the Information Technology tools to expedite the execution process.
Conclusion
Time in court to arrive at a final decision and its execution is undoubtedly a litigant concern. The decree-holder is not being able to enjoy the fruits of litigation on account of inordinate delay caused during the process of execution of the decree. 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 Sing (1871-72) 14 Moore’s I.A. 605) which observed that the actual difficulties of a litigant in India begin when he has obtained a decree. The apex Court made a similar observation in Shub Karan Bubna @ Shub Karan Prasad Bubna v Sita Saran Bubna (2009) 9 SCC 689, 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. The new guidelines are towards changing the face of litigation experience for litigants.
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