RAHUL S SHAH versus JINENDRA KUMAR GANDHI & ORS. on 22 April 2021

ORDER

1. Leave granted.

2. The present appeals arise out of the common judgment andDorder dated 16[th] January, 2020 of the Karnataka High Court whichdismissed several Writ Petitions. The course of the litigation highlightsthe malaise of constant abuse of procedural provisions which defeatsjustice, i.e. frivolous attempts by unsuccessful litigants to putting upspurious objections and setting up third parties, to object, delay and obstructthe execution of a decree.E

3. The third respondent (hereafter referred to as ‘Narayanamma’)had purchased a property measuring 1 Acre (Survey No. 15/2) ofDeevatige Ramanahalli, Mysore Road, Bengaluru (hereafter referredto as ‘suit property’) under the sale deed dated 17.03.1960. The suitland was converted and got merged in the municipal limits of BengaluruFand was assigned with Municipal Corporation No. 327 and 328, MysoreRoad, Bengaluru. Narayanamma sold 1908 square yard of the suitproperty in Municipal Corporation (Survey No. 327) to 2[nd] and 3[rd]respondents (hereafter referred to ‘Jitendra’ and `Urmila’) under a saledeed dated 13.05.1986. This was demarcated with the sketch annexedGto the sale deed. The adjacent portion of property, Survey No. 327 wassold to Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi by anothersale deed dated 13.05.1986. This property was also demarcated in thesketch and clearly shows its dimensions and boundaries annexed to thesale deed. Therefore, the first two respondents, Shri Moolendra KumarGandhi and Smt. Baby Gandhi became absolute owners of the suit H

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property with the totally admeasuring of 3871 square yards. Thus,Narayanamma had sold about 34,839 square feet of the property out of1 Acre land (43,860 square feet) owned by her. Subsequently, after thesale of the major portion of the said property to the first two respondentsand their brother, Narayanamma who is the mother of A. RamachandraReddy the fourth respondent (hereafter called “the vendors”) filed asuit[1] for declaration that the two sale deeds in favour of the first tworespondents (also called “purchasers” or “decree-holders”) as well asagainst Shri Moolendra Kumar Gandhi etc. were void. The vendors andShri Anjan Reddy (deceased respondent no. 8) on 25.03.1991 executeda registered partition deed. This document did not advert to the saledeed executed in favour of the purchasers and Shri Moolendar KumarGandhi and Smt. Baby Kumari Gandhi. The purchasers were restrainedby an injunction from entering the property which Narayanamma claimedwas hers.

4. During the pendency of the suit for declaration, the firstpurchasers filed two suits[2] against the vendors for possession. Duringthe pendency of these suits on 11.02.2000 by two separate sale deedsShri Dhanji Bhai Patel and Shri Govind Dhanji Patel purchased 7489square feet and 7650 square feet respectively, out of the residue of theproperty owned by Narayanamma. While so, during the pendency ofthe suits instituted by the purchasers, the vendors again sold the suitproperty i.e. the land to the present appellant (Rahul Shah) and threeothers (Respondents no. 5-7) by four separate sale deeds.[3]In thepossession suits the vendors filed counter claims (dated 18.04.1998).During the pendency of proceedings the purchasers sought for transferand mutation of property in their names which were declined by theMunicipal Corporation; this led to their approaching the High Court inWrit Petition No. 19205/1992 which was disposed of with a direction[4]that after adjudication of the injunction suit (filed by the vendors) thekhata be transferred.

5. The proceedings in the injunction suit filed by the vendors andthe other two suits filed by the purchasers were clubbed together. TheCity Civil Judge, Bangalore by a common judgment dated 21.12.2006allowed and decreed the suits for possession preferred by the purchasers 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

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Aand dismissed the vendor’s suit for injunction. The decree holderspreferred execution proceedings.[5] They filed applications under OrderXXI Rule 97 of the Code of Civil Procedure (CPC) since the judgmentdebtors/vendors had sold the property to the appellant and respondentsno. 4 to 7. The appellant i.e. a subsequent purchaser filed objections.

B6. During the pendency of the proceedings the front portion of thesuit property bearing Municipal Corporation No. 327, Mysore road,Bangalore became the subject matter of the acquisition for the BangaloreMetro Project. The decree holders (the first two respondents) preferredobjections to the proposed acquisition and further claimed the possession.In the meanwhile, aggrieved by the dismissal of the suit and decreeingCthe suit for possession, Narayanamma filed first appeals in the HighCourt[6]. In these proceedings it was brought to the notice of the HighCourt that the suit properties had been sold to the appellant andrespondents no. 4 to 7. By an order[7] the High Court directed the vendorsto furnish particulars with respect to the sale, names of the purchaserDand area sold etc. By common judgment dated 22.10.2009 the HighCourt dismissed all the appeals pending before it. The Special LeavePetition preferred by the vendors[8] was also dismissed by this Court on23.07.2010.

7. Apparently, during the pendency of execution proceedingsEbefore the trial Court the vendors again sold the properties in favour ofShri P. Prem Chand, Shir Parasmal, Shri Kethan S. Shah & Ors. andShri Gopilal Ladha & Shri Vinay Maheshwari by separate sale deeds[9].This was brought to the notice of the High Court which had dismissedthe appeal preferred by the vendors.

F8. During the pendency of the proceedings before the High CourtNarayanamma, the appellant and respondents no. 4 to 7 filed indemnitybonds claiming that there was no dispute with respect to the suit propertyand claimed the compensation in respect of portions that were acquired.These were brought to the notice of the High Court which passed anorder in W.P. No. 9337/2008. The court considered all the materials andGheld that the compensation could not have been dispersed to the vendors, 5 Execution Case Nos. 458-459/2007

6 R.F.A. No. 661-663/ 2007

7 Dated 10.04.208

8 S.L.P. (C) Nos. 16349-13651/2010

H9 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004

the appellant and Respondents no. 4 to 7. The High Court issued directionsto them to deposit the amounts. An appeal was preferred by the appellantand the said respondents, against that order, which was rejected by theDivision Bench.[10] Consequently, an enquiry was held and order waspassed by the Land Acquisition Officer on 01.08.2011 directing theappellant, the vendor and others to redeposit the amounts. By an orderpassed in another Writ Petition No. 2099/2011[11] the High Court held thatthe decree holder/purchasers were entitled to transfer of khata ofproperty in their names and directed to hold an inquiry against the RevenueOfficer. Since the orders of the High Court, with respect to the depositsof amounts, were not complied with, contempt proceedings were taken.

9. The High Court in another order dated 19.04.2013 directedNarayanamma and respondents no. 4 to 7 to deposit the amounts. Thatorder in contempt proceedings (C.C.C. No. 280/2011) was challengedbefore this Court in a special leave petition[12] which was dismissed on05.11.2014. Thereafter, apparently in compliance with the High Court’sdirection for transfer of khata the municipal and revenue records reflectthe names of the decree-holder/purchasers.

10. The execution proceedings initiated by the decree holdersresulted in the court requiring parties to lead evidence, in view of theobstruction by the appellant and respondents no. 4 to 7, by its orderdated 23.04.2010. When obstruction proceedings were pending underOrder XXI Rule 97, the judgment debtor i.e. the vendors initiated criminalproceedings in 2016 against the decree holders; these were stayed bythe High Court on 20.06.2016 and later quashed on 16.03.2017. Thejudgment debtors had alleged forgery of certain documents. The HighCourt directed appointment of Court Commissioner to identify andmeasure the property. At the time of disposal of the criminal proceedingsHigh Court directed that the Commissioner’s report along with theobjections of the Judgment debtors ought to be forwarded to the ExecutingCourt.

11. In the meanwhile, by an order the Executing Court hadappointed the Taluka Surveyor of BBMP as the Court Commissionerand directed him to visit the spot and survey and fix the boundaries ofdecretal property. Recall of these orders was sought by the judgment 10 Dated 28.10.2009

11 Dated 17.07.2013

12 SLP (C) No. 18031/2013

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Adebtors; they also sought for reference to forensic examination by aHandwriting Expert of the sale documents. These two review applicationswere dismissed; and on 13.06.2017 the Executing Court declined theapplication for forensic examination of documents and also rejected theobstructers’ resistance to execution.B12. All these orders led to initiation of five writ petitions on behalfof the appellant, and the vendors etc. Three First appeals[13] were preferredby obstructers challenging the decision of the Executing Court dated15.02.2017. By impugned common order all these Writ Petitions andappeals were dismissed.

C13. It is argued by Mr. Shailesh Madiyal on behalf of the appellant(Rahul Shah) that the impugned order has the effect of diluting the orderof the Executing Court dated 23.04.2010 with respect to survey of theentire property. It was pointed out by the counsel for the appellant thatthere were disputes with respect to boundaries and identity of theproperties as between parties. Referring to the order, it was submittedDthat the Court had noticed that the High Court in earlier Writ Petitionshad directed the Special Land Acquisition Officer to hold an enquiry andif necessary refer the matter to Civil Court under Section 30 of the LandAcquisition Act. In view of all these disputes, questions especially relatedto the boundaries and the imprecise nature of the extent and location ofEthe disputed properties, the impugned order should be interfered withand the reliefs sought by the appellant be granted. Learned Counselsubmitted that subsequently by order dated 31.10.2014 the ExecutingCourt erroneously held that Sketch Exhibit P-26 was drawn by RevenueAuthorities whereas in fact it was introduced by handwritten sketchgiven by the decree holders.F

14. Learned counsel submitted that decree holder’s efforts in allthe proceedings were to confuse the identity of the property and thereforehad sought clubbing of both execution cases; this request was rejectedby the Executing Court after concluding that the property sought to beexecuted in two cases were different and further that rights claimed tooGwere 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 of2020, 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 leftafter decree holders had purchased and therefore the conveyances hadoverlapped.

16. Mr. Arunava Mukherjee appearing for the second set ofappellants also reiterated the submissions of Mr. Shailesh Madiyal thatthe 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 handwritingexperts. It was submitted that this aspect was completely overlookedbecause the appellants’ had raised serious doubts with respect to thegenuineness and authenticity of the signatures of the documents.

17. The respondents urged that this Court should not interferewith the findings of the High Court. Learned counsel reiterated thatnumerous proceedings were taken out and that the judgment debtorshad sold the very same property three times over – at least two timesafter the decree holders purchased their portions of the property andduring the pendency of the suits filed by them. The judgment debtorshad sought a declaration that the sale deeds executed in favour of thedecree holders were not genuine and lost. Thereafter, the judgment debtorand some of the obstructers succeeded in collecting compensation inrespect of the portion of the property that had been acquired. Ultimately,those amounts had to be disbursed by the Court orders. The judgmentdebtors/ vendor even sought forensic examination and initiated thecriminal proceedings that were quashed by the High Court. The HighCourt took note of all these circumstances and passed a just order,requiring the appointment of a Court Commissioner to identify andmeasure the properties. While doing so the Executing Court has beenasked to take into consideration all the materials on record including thereports submitted by the previous Court Commissioner Mr. VenkateshDalwai.

Discussion and conclusions:

Discussion and conclusions:

18. It is quite evident from the above discussion that the vendorand her son (judgment debtors) after executing the sale deed in respectof a major portion of the property, questioned the transaction by a suitfor declaration. The decree holders also filed a suit for possession. Duringthe pendency of these proceedings, two sets of sale deeds were executed.

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AThe vendors’ suit was dismissed – the decree of dismissal was upheld atthe stage of the High Court too. On the other hand, the purchasers’ suitwas decreed and became the subject matter of the appeal. The HighCourt dismissed the first appeal; this Court dismissed the Special LeavePetition. This became the background for the next stage of theproceedings, i.e. execution. Execution proceedings are now beingBsubsisting for over 14 years. In the meanwhile, numerous applicationsincluding criminal proceedings questioning the very same documents thatwas the subject matter of the suit were initiated. In between the portionof the property that had been acquired became the subject matter ofland acquisition proceedings and disbursement of the compensation. ThatCbecame the subject matter of writ and contempt proceedings. Variousorders of the Executing Court passed from time to time, became thesubject matter of writ petitions and appeals - six of them, in the HighCourt. All these were dealt with together and disposed of by the commonimpugned order.

D19. A perusal of the common impugned order shows that HighCourt has painstakingly catalogued all proceedings chronologically andtheir 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 ordersEof the Executing Court directing Delivery Warrant, are set atnaught, and the matter is remitted back for considerationafresh by appointing an expert person/official as the CourtCommissioner for accomplishing the identification &measurement of the decreetal properties with the participationFof all the stake-holders, in that exercise subject to all theybearing the costs & fees thereof, equally; (b) it is open to the Executing Court to take into considerationthe entire evidentiary material on record hitherto includingthe Report already submitted by the Court Commissioner ShriVenkatesh Dalwai,G

(c) the amount already in deposit and the one to be depositedby the Obstructors in terms of orders of Co-ordinate Benchesof this Court mentioned in paragraph 8 supra shall be releasedto the parties concerned, that emerge victorious in theExecution Petitions;H

(d) the JDrs shall jointly pay to the DHrs collectively anexemplary cost of Rs. 5,00,000/- (Rupees five lakh) only ineach of the Execution Petitions within a period of eight weeks,regardless of the outcome of the said petitions; and, if, thesame is not accordingly paid, they run the risk of beingexcluded from participation in the Execution Proceedings, inthe discretion of the learned judge of the Court below; and, (e) the entire exercise including the disposal of the ExecutionPetitions shall be accomplished within an outer limit of sixmonths, and the compliance of such accomplishment shall bereported to the Registrar General of this Court.

No costs qua obstructors.

Sd/-JUDGE

20. The contentions of the Special Leave Petition mainly centrearound one or the other previous orders of the Executing Court withregard identification of the property and boundary etc and the subjectingdocuments to forensic examination. As is evident from the reading ofthe final order, the High Court has adopted a fair approach requiring theExecuting Court to appoint a Court Commissioner to verify the identityof the suit properties and also consider the materials brought on recordincluding the reports of the previous local commission. In the light ofthis, the arguments of the present appellants are unmerited and withoutany force. The Court also finds that the complaint that documents oughtto be subjected to forensic examination, is again insubstantial. The criminalproceedings initiated during the pendency of the execution proceedings– in 2016 culminated in the quashing of those proceedings. The argumentthat the documents are not genuine or that they contain somethingsuspicious ex-facie appears only to be another attempt to stall executionand seek undue advantage. As a result, the High Court correctly declinedto order forensic examination. This Court is of the opinion that havingregard to the totality of circumstances the direction to pay costs quantifiedat Rs. 5 lakh (to be complied by the judgment debtor) was reasonable,given the several attempts by the decree holder to ensure that the fruitsof the judgment secured by them having been thwarted repeatedly. As aresult, the direction to pay costs was just and proper.

21. The High Court has directed the Executing Court to completethe process within six months. That direction is affirmed. The parties AB

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Aare hereby directed to cooperate with the Executing Court; in case thatcourt finds any obstruction or non-cooperation it shall proceed to use itspowers, including the power to set down and proceed ex-parte any partyor impose suitably heavy costs. Therefore, in light of the aboveobservations these appeals are liable to be dismissed.B22. These appeals portray the troubles of the decree holder in notbeing able to enjoy the fruits of litigation on account of inordinate delaycaused 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 measureshave to be taken to reduce the delay in disposal of execution petitions,Cwe proposed certain suggestions which have been furnished to thelearned counsels of parties for response. We heard Mr. Shailesh Madiyal,learned counsel for the petitioner and Mr. Paras Jain, learned counselfor the respondent.

23. This court has repeatedly observed that remedies providedDfor preventing injustice are actually being misused to cause injustice, bypreventing a timely implementation of orders and execution of decrees.This was discussed even in the year 1872 by the Privy Counsel in TheGeneral Manager of the Raja Durbhunga v. Maharaja CoomarRamaput Sing[14] which observed that the actual difficulties of a litigantEin India begin when he has obtained a decree. This Court made a similarobservation in Shub Karan Bubna @ Shub Karan Prasad Bubna vSita Saran Bubna[15], wherein it recommended that the Law Commissionand the Parliament should bestow their attention to provisions that enablefrustrating successful execution. The Court opined that the LawCommission or the Parliament must give effect to appropriateFrecommendations to ensure such amendments in the Code of CivilProcedure, 1908, governing the adjudication of a suit, so as to ensurethat the process of adjudication of a suit be continuous from the stage ofinitiation to the stage of securing relief after execution proceedings. Theexecution proceedings which are supposed to be handmaid of justiceGand sub-serve the cause of justice are, in effect, becoming tools whichare being easily misused to obstruct justice.

24. In respect of execution of a decree, Section 47 of CPCcontemplates adjudication of limited nature of issues relating to execution14 (1871-72) 14 Moore’s I.A. 605H15 (2009) 9 SCC 689

i.e., discharge or satisfaction of the decree and is aligned with theconsequential provisions of Order XXI. Section 47 is intended to preventmultiplicity of suits. It simply lays down the procedure and the formwhereby the court reaches a decision. For the applicability of the section,two essential requisites have to be kept in mind. Firstly, the questionmust be the one arising between the parties and secondly, the disputerelates to the execution, discharge or satisfaction of the decree. Thus,the objective of Section 47 is to prevent unwanted litigation and disposeof 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 steadyrise of proceedings akin to a re-trial at the time of execution causingfailure of realisation of fruits of decree and relief which the party seeksfrom the courts despite there being a decree in their favour. Experiencehas shown that various objections are filed before the Executing Courtand the decree holder is deprived of the fruits of the litigation and thejudgment debtor, in abuse of process of law, is allowed to benefit fromthe subject matter which he is otherwise not entitled to.

26. The general practice prevailing in the subordinate courts isthat invariably in all execution applications, the Courts first issue showcause notice asking the judgment debtor as to why the decree should notbe executed as is given under Order XXI Rule 22 for certain class ofcases. However, this is often misconstrued as the beginning of a newtrial. For example, the judgement debtor sometimes misuses the provisionsof 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 oralevidence which may be frivolous. This drags the execution proceedingsindefinitely.

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 whichrelate to Parties to Suits and Frame of Suits with the object of avoidingmultiplicity of proceedings, provides for joinder of parties and joinder ofcause of action so that common questions of law and facts could bedecided at one go.

28. Order I Rule 10(2) empowers the Court to add any party whoought to have been joined, whether as a plaintiff or defendant, or whose AB

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Apresence before the Court may be necessary in order to enable theCourt to effectually and completely adjudicate upon and settle all questionsinvolved in the suit. Further, Order XXII Rule 10 provides that in casesof assignment, creation or devolution of any interest during the pendencyof the suit, the suit may, by leave of the Court, be continued by or againstthe person to or upon whom such interest has come to be devolved.B

29. While CPC under Rules 30 to 36 of Order XXI provides forexecution of various decrees, the modes of execution are common forall. Section 51 of CPC lists the methods of execution as by delivery ofproperty; by attachment and sale; by arrest and detention in civil prison;by appointing a receiver or in any other manner as the nature of reliefCgranted may require. Moreover, Order XL Rule 1 contemplates theappointment of the Receiver by the Court. In appropriate cases, theReceiver may be given possession, custody and/or management of theproperty immediately after the decree is passed. Such expression willassist in protection and preservation of the property. This procedureDwithin the framework of CPC can provide assistance to the ExecutingCourt 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 deliveredto the party to whom it has been adjudged, or to such person as he mayEappoint to receive delivery on his behalf, and, if necessary, by removingany person bound by the decree who refuses to vacate the property.

31. As the trial continues between specific parties before the Courtsand is based on available pleadings, sometimes vague description ofproperties raises genuine or frivolous third-party issues before deliveryFof possession during the execution. A person who is not party to the suit,at times claims separate rights or interests giving rise to the requirementof determination of new issues.

32. While there may be genuine claims over the subject matterproperty, the Code also recognises that there might be frivolous orGinstigated claims to deprive the decree holder from availing the benefitsof the decree. Sub-rule (2) of Rule 98 of Order XXI contemplates suchsituations and provides for penal consequences for resistance orobstruction occasioned without any just cause by the judgment debtor orby some other person at his instigation or on his behalf, or by thetransferee, where such transfer was made during the pendency of theH

suit or execution proceedings. However, such acts of abuse of processof law are seldom brought to justice by sending the judgment debtor, orany other person acting on his behalf, to the civil prison.

33. In relation to execution of a decree of possession of immovableproperty, it would be worthwhile to mention the twin objections whichcould be read. Whereas under Order XXI Rule 97, a decree holder canapproach the court pointing out about the obstruction and require thecourt to pass an order to deal with the obstructionist for executing adecree for delivering the possession of the property, the obstructionistcan also similarly raise objections by raising new issues which takeconsiderable 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 dispossessedof immoveable property by the decree holder for possession of suchproperty, files an application with objections. Such objections also leadto re-trial, but as the objector is already dispossessed, the execution ofthe decree is more probable and expeditious. In Order XXI Rule 97 theobstructionist comes up with various objections that ideally should havebeen raised at the time of adjudication of suit. Such obstructions forexecution could be avoided if a Court Commissioner is appointed at theproper time.

35. Having considered the abovementioned legal complexities, thelarge pendency of execution proceedings and the large number ofinstances of abuse of process of execution, we are of the opinion that toavoid controversies and multiple issues of a very vexed questionemanating from the rights claimed by third parties, the Court must playan active role in deciding all such related issues to the subject matterduring 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 beforesettlement of issues, the Court must, in cases, involving delivery of orany rights relating to the property, exercise power under Order XI Rule14 by ordering production of documents upon oath, relating to declarationregarding existence of rights of any third party, interest in the suit propertyeither created by them or in their knowledge. It will assist the court indeciding impleadment of third parties at an early stage of the suit so thatany future controversy regarding non-joinder of necessary party may be AB

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Aavoided. It shall ultimately facilitate an early disposal of a suit involvingany immovable property.

37. It also becomes necessary for the Trial Court to determinewhat 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 theBdefendant. Thus, the Court may also take recourse to the followingactions:

a) Issue commission under Order XXVI Rule 9 of CPC.

A determination through commission, upon the institution of a suitshall provide requisite assistance to the court to assess and evaluateCto take necessary steps such as joining all affected parties asnecessary parties to the suit. Before settlement of issues, the Courtmay appoint a Commissioner for the purpose of carrying out localinvestigation recording exact description and demarcation of theproperty including the nature and occupation of the property. InDaddition to this, the Court may also appoint a Receiver under OrderXL Rule 1 to secure the status of the property during the pendencyof the suit or while passing a decree.

b) Issue public notice specifying the suit property and invitingclaims, if any, that any person who is in possession of the suitEproperty or claims possession of the suit property or has any right,title or interest in the said property specifically stating that if theobjections are not raised at this stage, no party shall be allowed toraise any objection in respect of any claim he/she may havesubsequently.

Fc) Affix such notice on the said property.d) Issue such notice specifying suit number etc. and the Court inwhich it is pending including details of the suit property and havethe same published on the official website of the Court.

38. Based on the report of the Commissioner or an applicationGmade in that regard, the Court may proceed to add necessary or properparties under Order I Rule 10. The Court may permit objectors orclaimants upon joining as a party in exercise of power under Order IRule 10, make a joinder order under Order II Rule 3, permitting suchparties to file a written statement along with documents and lists ofwitnesses and proceed with the suit.H

39. If the above suggested recourse is taken and subsequently ifan objection is received in respect of “suit property” under Order XXIRule 97 or Rule 99 of CPC at the stage of execution of the decree, theExecuting Court shall deal with it after taking into account the fact thatno such objection or claim was received during the pendency of the suit,especially in view of the public notice issued during trial. Such claimsunder Order XXI Rule 97 or Rule 99 must be dealt strictly and beconsidered/entertained rarely.

40. In Ghan Shyam Das Gupta v. Anant Kumar Sinha[16], thisCourt had observed that the provisions of the Code as regards executionare of superior judicial quality than what is generally available under theother statutes and the Judge, being entrusted exclusively withadministration of justice, is expected to do better. With pragmaticapproach and judicial interpretations, the Court must not allow thejudgment debtor or any person instigated or raising frivolous claim todelay the execution of the decree. For example, in suits relating to moneyclaim, the Court, may on the application of the plaintiff or on its ownmotion using the inherent powers under Section 151, under thecircumstances, direct the defendant to provide security before furtherprogress of the suit. The consequences of non-compliance of any ofthese directions may be found in Order XVII Rule 3.

41. Having regard to the above background, wherein there is urgentneed to reduce delays in the execution proceedings we deem it appropriateto issue few directions to do complete justice. These directions are inexercise of our jurisdiction under Article 142 read with Article 141 andArticle 144 of the Constitution of India in larger public interest to subservethe process of justice so as to bring to an end the unnecessary ordeal oflitigation faced by parties awaiting fruits of decree and in largerperspective affecting the faith of the litigants in the process of law.

42. All Courts dealing with suits and execution proceedings shallmandatorily follow the below-mentioned directions:

1. In suits relating to delivery of possession, the court mustexamine the parties to the suit under Order X in relation tothird

2. party interest and further exercise the power under OrderXI Rule 14 asking parties to disclose and produce 16 AIR 1991 SC 2251

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Adocuments, upon oath, which are in possession of the partiesincluding declaration pertaining to third party interest in suchproperties.

3. In appropriate cases, where the possession is not in disputeand not a question of fact for adjudication before the Court,Bthe Court may appoint Commissioner to assess the accuratedescription and status of the property.

4. After examination of parties under Order X or productionof documents under Order XI or receipt of commissionreport, the Court must add all necessary or proper partiesto the suit, so as to avoid multiplicity of proceedings andalso make such joinder of cause of action in the same suit.

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5. Under Order XL Rule 1 of CPC, a Court Receiver can beappointed to monitor the status of the property in questionas custodia legis for proper adjudication of the matter.

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6. The Court must, before passing the decree, pertaining to

7. delivery of possession of a property ensure that the decreeis unambiguous so as to not only contain clear descriptionof the property but also having regard to the status of theproperty.

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8. In a money suit, the Court must invariably resort to OrderXXI Rule 11, ensuring immediate execution of decree forpayment 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 onFoath, to the extent that he is being made liable in a suit. TheCourt may further, at any stage, in appropriate cases duringthe 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 underGOrder XXI of CPC, must not issue notice on an applicationof third-party claiming rights in a mechanical manner.Further, the Court should refrain from entertaining any suchapplication(s) that has already been considered by the Courtwhile adjudicating the suit or which raises any such issue H

which otherwise could have been raised and determinedduring adjudication of suit if due diligence was exercisedby the applicant.

11. The Court should allow taking of evidence during theexecution proceedings only in exceptional and rare caseswhere the question of fact could not be decided by resortingto any other expeditious method like appointment ofCommissioner or calling for electronic materials includingphotographs or video with affidavits.

12. The Court must in appropriate cases where it finds theobjection or resistance or claim to be frivolous or mala fide,resort to Sub-rule (2) of Rule 98 of Order XXI as well asgrant compensatory costs in accordance with Section 35A.

13. Under section 60 of CPC the term “…in name of thejudgment- debtor or by another person in trust for him or onhis behalf” should be read liberally to incorporate any otherperson from whom he may have the ability to derive share,profit or property.

14. The Executing Court must dispose of the ExecutionProceedings within six months from the date of filing, whichmay be extended only by recording reasons in writing forsuch delay.

15. The Executing Court may on satisfaction of the fact that itis not possible to execute the decree without policeassistance, direct the concerned Police Station to providepolice assistance to such officials who are working towardsexecution of the decree. Further, in case an offence againstthe public servant while discharging his duties is brought tothe knowledge of the Court, the same must be dealtstringently in accordance with law.

16. The Judicial Academies must prepare manuals and ensurecontinuous training through appropriate mediums to theCourt personnel/staff executing the warrants, carrying outattachment and sale and any other official duties forexecuting orders issued by the Executing Courts.

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A43. We further direct all the High Courts to reconsider and updateall the Rules relating to Execution of Decrees, made under exercise ofits powers under Article 227 of the Constitution of India and Section 122of CPC, within one year of the date of this Order. The High Courts mustensure that the Rules are in consonance with CPC and the abovedirections, with an endeavour to expedite the process of execution withBthe use of Information Technology tools. Until such time these Rules arebrought into existence, the above directions shall remain enforceable.

44. The appeals stand dismissed.

CNidhi Jain

Appeals dismissed.

D

E

F

G

H