April 22, 2021
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1659-1660 of 2021
(@ SPECIAL LEAVE TO APPEAL NOS. 7965-7966/2020)
RAHUL S SHAH ….APPELLANT (S)
VERSUS
JINENDRA KUMAR GANDHI & ORS. ….RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 1661-1662 of 2021
(@ SLP (C) NOS. 11859-11860/2020)
WITH
CIVIL APPEAL NOS. 1663-1664 of 2021
(@ SLP (C) NOS. 11792-11793/2020)
O R D E R
1. Leave granted.
2. The present appeals arise out of the common judgment and order dated 16th January, 2020 of the Karnataka High Court which dismissed several Writ Petitions. The course of the litigation highlights the malaise of constant abuse of procedural provisions which defeats justice, i.e. frivolous attempts by unsuccessful litigants to putting up spurious objections and setting up third parties, to object, delay and obstruct the execution of a decree.
3. The third respondent (hereafter referred to as ‘Narayanamma’)
had purchased a property measuring 1 Acre (Survey No. 15/2) of
Deevatige Ramanahalli, Mysore Road, Bengaluru (hereafter referred
to as ‘suit property’) under the sale deed dated 17.03.1960. The suit
land was converted and got merged in the municipal limits of
Bengaluru and was assigned with Municipal Corporation No. 327 and
328, Mysore Road, Bengaluru. Narayanamma sold 1908 square yard
of the suit property in Municipal Corporation (Survey No. 327) to 2nd
and 3rd respondents (hereafter referred to ‘Jitendra’ and `Urmila’)
under a sale deed dated 13.05.1986. This was demarcated with the
sketch annexed to the sale deed. The adjacent portion of property,
Survey No. 327 was sold to Shri Moolendra Kumar Gandhi and Smt.
Baby Gandhi by another sale deed dated 13.05.1986. This property
was also demarcated in the sketch and clearly shows its dimensions
and boundaries annexed to the sale deed. Therefore, the first two
respondents, Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi
became absolute owners of the suit property with the totally
admeasuring of 3871 square yards. Thus, Narayanamma had sold
about 34,839 square feet of the property out of 1 Acre land (43,860
square feet) owned by her. Subsequently, after the sale of the major
portion of the said property to the first two respondents and their
brother, Narayanamma who is the mother of A. Ramachandra Reddy
the fourth respondent (hereafter called “the vendors”) filed a suit1
for declaration that the two sale deeds in favour of the first two
respondents (also called “purchasers” or “decree-holders”) as well as
against Shri Moolendra Kumar Gandhi etc. were void. The vendors
and Shri Anjan Reddy (deceased respondent no. 8) on 25.03.1991
executed a registered partition deed. This document did not advert
to the sale deed executed in favour of the purchasers and Shri
Moolendar Kumar Gandhi and Smt. Baby Kumari Gandhi. The
purchasers were restrained by an injunction from entering the
property which Narayanamma claimed was hers.
4. During the pendency of the suit for declaration, the first
purchasers filed two suits2
against the vendors for possession.
1 O.S. No. 986/1987
2 O.S. Nos. 9077/ 1996 and 9078/1996
During the pendency of these suits on 11.02.2000 by two separate
sale deeds Shri Dhanji Bhai Patel and Shri Govind Dhanji Patel
purchased 7489 square feet and 7650 square feet respectively, out
of the residue of the property owned by Narayanamma. While so,
during the pendency of the suits instituted by the purchasers, the
vendors again sold the suit property i.e. the land to the present
appellant (Rahul Shah) and three others (Respondents no. 5-7) by
four separate sale deeds.3
In the possession suits the vendors filed
counter claims (dated 18.04.1998). During the pendency of
proceedings the purchasers sought for transfer and mutation of
property in their names which were declined by the Municipal
Corporation; this led to their approaching the High Court in Writ
Petition No. 19205/1992 which was disposed of with a direction4
that
after adjudication of the injunction suit (filed by the vendors) the
khata be transferred.
5. The proceedings in the injunction suit filed by the vendors and
the other two suits filed by the purchasers were clubbed together.
The City Civil Judge, Bangalore by a common judgment dated
21.12.2006 allowed and decreed the suits for possession preferred
3 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004
4 Dated 05.11.1998
4
by the purchasers and dismissed the vendor’s suit for injunction.
The decree holders preferred execution proceedings.5
They filed
applications under Order XXI Rule 97 of the Code of Civil Procedure
(CPC) since the judgment debtors/vendors had sold the property to
the appellant and respondents no. 4 to 7. The appellant i.e. a
subsequent purchaser filed objections.
6. During the pendency of the proceedings the front portion of the
suit property bearing Municipal Corporation No. 327, Mysore road,
Bangalore became the subject matter of the acquisition for the
Bangalore Metro Project. The decree holders (the first two
respondents) preferred objections to the proposed acquisition and
further claimed the possession. In the meanwhile, aggrieved by the
dismissal of the suit and decreeing the suit for possession,
Narayanamma filed first appeals in the High Court6
. In these
proceedings it was brought to the notice of the High Court that the
suit properties had been sold to the appellant and respondents no. 4
to 7. By an order7
the High Court directed the vendors to furnish
particulars with respect to the sale, names of the purchaser and area
sold etc. By common judgment dated 22.10.2009 the High Court
5 Execution Case Nos. 458-459/2007
6 R.F.A. No. 661-663/ 2007
7 Dated 10.04.208
5
dismissed all the appeals pending before it. The Special Leave
Petition preferred by the vendors8
was also dismissed by this Court
on 23.07.2010.
7. Apparently, during the pendency of execution proceedings before the trial Court the vendors again sold the properties in favour of Shri P. Prem Chand, Shir Parasmal, Shri Kethan S. Shah & Ors. and Shri Gopilal Ladha & Shri Vinay Maheshwari by separate sale deeds9
.
This was brought to the notice of the High Court which had dismissed
the appeal preferred by the vendors.
8. During the pendency of the proceedings before the High Court
Narayanamma, the appellant and respondents no. 4 to 7 filed
indemnity bonds claiming that there was no dispute with respect to
the suit property and claimed the compensation in respect of
portions that were acquired. These were brought to the notice of the
High Court which passed an order in W.P. No. 9337/2008. The court
considered all the materials and held that the compensation could
not have been dispersed to the vendors, the appellant and
Respondents no. 4 to 7. The High Court issued directions to them to
deposit the amounts. An appeal was preferred by the appellant and
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
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.
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 Dated 28.10.2009
11 Dated 17.07.2013
12 SLP (C) No. 18031/2013
7
10. The execution proceedings initiated by the decree holders
resulted in the court requiring parties to lead evidence, in view of the
obstruction by the appellant and respondents no. 4 to 7, by its order
dated 23.04.2010. When obstruction proceedings were pending
under Order XXI Rule 97, the judgment debtor i.e. the vendors
initiated criminal proceedings in 2016 against the decree holders;
these were stayed by the High Court on 20.06.2016 and later
quashed on 16.03.2017. The judgment debtors had alleged forgery
of certain documents. The High Court directed appointment of Court
Commissioner to identify and measure the property. At the time of
disposal of the criminal proceedings High Court directed that the
Commissioner’s report along with the objections of the Judgment
debtors ought to be forwarded to the Executing Court.
11. In the meanwhile, by an order the Executing Court had
appointed the Taluka Surveyor of BBMP as the Court Commissioner
and directed him to visit the spot and survey and fix the boundaries
of decretal property. Recall of these orders was sought by the
judgment debtors; they also sought for reference to forensic
examination by a Handwriting Expert of the sale documents. These
two review applications were dismissed; and on 13.06.2017 the
Executing Court declined the application for forensic examination of
documents and also rejected the obstructers’ resistance to
execution.
12. All these orders led to initiation of five writ petitions on behalf of
the appellant, and the vendors etc. Three First appeals13 were
preferred by obstructers challenging the decision of the Executing
Court dated 15.02.2017. By impugned common order all these Writ
Petitions and appeals were dismissed.
13. It is argued by Mr. Shailesh Madiyal on behalf of the appellant
(Rahul Shah) that the impugned order has the effect of diluting the
order of the Executing Court dated 23.04.2010 with respect to survey
of the entire property. It was pointed out by the counsel for the
appellant that there were disputes with respect to boundaries and
identity of the properties as between parties. Referring to the order,
it was submitted that the Court had noticed that the High Court in
earlier Writ Petitions had directed the Special Land Acquisition Officer
to hold an enquiry and if necessary refer the matter to Civil Court
under Section 30 of the Land Acquisition Act. In view of all these
disputes, questions especially related to the boundaries and the
13 R.F.A. Nos. 441, 468 and 469/2017
9
imprecise nature of the extent and location of the disputed
properties, the impugned order should be interfered with and the
reliefs sought by the appellant be granted. Learned Counsel
submitted that subsequently by order dated 31.10.2014 the
Executing Court erroneously held that Sketch Exhibit P-26 was drawn
by Revenue Authorities whereas in fact it was introduced by
handwritten sketch given by the decree holders.
14. Learned counsel submitted that decree holder’s efforts in all the
proceedings 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.
10
16. Mr. Arunava Mukherjee appearing for the second set of
appellants also reiterated the submissions of Mr. Shailesh Madiyal
that the decree holders had intentionally confused the identity of the
property. He highlighted that the High Court acted in error in
rejecting the appellants’ request for subjecting documents to forensic
examination by handwriting experts. It was submitted that this
aspect was completely overlooked because the appellants’ had
raised serious doubts with respect to the genuineness and
authenticity of the signatures of the documents.
17. The respondents urged that this Court should not interfere with
the findings of the High Court. Learned counsel reiterated that
numerous proceedings were taken out and that the judgment
debtors had sold the very same property three times over – at least
two times after the decree holders purchased their portions of the
property and during the pendency of the suits filed by them. The
judgment debtors had sought a declaration that the sale deeds
executed in favour of the decree holders were not genuine and lost.
Thereafter, the judgment debtor and some of the obstructers
succeeded in collecting compensation in respect of the portion of the
property that had been acquired. Ultimately, those amounts had to
11
be disbursed by the Court orders. The judgment debtors/ vendor
even sought forensic examination and initiated the criminal
proceedings that were quashed by the High Court. The High Court
took note of all these circumstances and passed a just order,
requiring the appointment of a Court Commissioner to identify and
measure the properties. While doing so the Executing Court has
been asked to take into consideration all the materials on record
including the reports submitted by the previous Court Commissioner
Mr. Venkatesh Dalwai.
Discussion and conclusions:
18. It is quite evident from the above discussion that the vendor
and her son (judgment debtors) after executing the sale deed in
respect of a major portion of the property, questioned the transaction
by a suit for declaration. The decree holders also filed a suit for
possession. During the pendency of these proceedings, two sets of
sale deeds were executed. The vendors’ suit was dismissed – the
decree of dismissal was upheld at the stage of the High Court too.
On the other hand, the purchasers’ suit was decreed and became the
subject matter of the appeal. The High Court dismissed the first
12
appeal; this Court dismissed the Special Leave Petition. This became
the background for the next stage of the proceedings, i.e. execution.
Execution proceedings are now being subsisting for over 14 years. In
the meanwhile, numerous applications including criminal
proceedings questioning the very same documents that was the
subject matter of the suit were initiated. In between the portion of
the property that had been acquired became the subject matter of
land acquisition proceedings and disbursement of the compensation.
That became the subject matter of writ and contempt proceedings.
Various orders of the Executing Court passed from time to time,
became the subject matter of writ petitions and appeals – six of
them, in the High Court. All these were dealt with together and
disposed of by the common impugned order.
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
13
matter is remitted back for consideration afresh by
appointing an expert person/official as the Court
Commissioner for accomplishing the identification
& measurement of the decreetal properties with
the participation of all the stake-holders, in that
exercise subject to all they bearing the costs &
fees thereof, equally;
(b) it is open to the Executing Court to take into
consideration the entire evidentiary material on
record hitherto including the Report already
submitted by the Court Commissioner Shri
Venkatesh Dalwai,
(c) the amount already in deposit and the one to
be deposited by the Obstructors in terms of orders
of Co-ordinate 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.
14
No costs qua obstructors.
Sd/-
JUDGE
20. The contentions of the Special Leave Petition mainly centre
around one or the other previous orders of the Executing Court with
regard identification of the property and boundary etc and the
subjecting documents to forensic examination. As is evident from
the reading of the final order, the High Court has adopted a fair
approach requiring the Executing Court to appoint a Court
Commissioner to verify the identity of the suit properties and also
consider the materials brought on record including the reports of the
previous local commission. In the light of this, the arguments of the
present appellants are unmerited and without any force. The Court
also finds that the complaint that documents ought to be subjected
to forensic examination, is again insubstantial. The criminal
proceedings initiated during the pendency of the execution
proceedings – in 2016 culminated in the quashing of those
proceedings. The argument that the documents are not genuine or
that they contain something suspicious ex-facie appears only to be
another attempt to stall execution and seek undue advantage. As a
15
result, the High Court correctly declined to order forensic
examination. This Court is of the opinion that having regard to the
totality of circumstances the direction to pay costs quantified at Rs. 5
lakh (to be complied by the judgment debtor) was reasonable, given
the several attempts by the decree holder to ensure that the fruits of
the judgment secured by them having been thwarted repeatedly. As
a result, the direction to pay costs was just and proper.
21. The High Court has directed the Executing Court to complete
the process within six months. That direction is affirmed. The
parties are hereby directed to cooperate with the Executing Court; in
case that court finds any obstruction or non-cooperation it shall
proceed to use its powers, including the power to set down and
proceed ex-parte 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
16
some remedial measures have to be taken to reduce the delay in
disposal of execution petitions, we proposed certain suggestions
which have been furnished to the learned counsels of parties for
response. We heard Mr. Shailesh Madiyal, learned counsel for the
petitioner and Mr. Paras Jain, learned counsel for the respondent.
23. This court has repeatedly observed that remedies provided for
preventing injustice are actually being misused to cause injustice, by
preventing a timely implementation of orders and execution of
decrees. This was discussed even in the year 1872 by the Privy
Counsel in The General Manager of the Raja Durbhunga v.
Maharaja Coomar Ramaput Sing14 which observed that the actual
difficulties of a litigant in India begin when he has obtained a decree.
This Court made a similar observation in Shub Karan Bubna @
Shub Karan Prasad Bubna v Sita Saran Bubna15
, wherein it
recommended that the Law Commission and the Parliament should
bestow their attention to provisions that enable frustrating successful
execution. The Court opined that the Law Commission or the
Parliament must give effect to appropriate recommendations to
ensure such amendments in the Code of Civil Procedure, 1908,
14 (1871-72) 14 Moore’s I.A. 605
15 (2009) 9 SCC 689
17
governing the adjudication of a suit, so as to ensure that the process
of adjudication of a suit be continuous from the stage of initiation to
the stage of securing relief after execution proceedings. The
execution proceedings which are supposed to be handmaid of justice
and sub-serve the cause of justice are, in effect, becoming tools
which are being easily misused to obstruct justice.
24. In respect of execution of a decree, Section 47 of CPC
contemplates adjudication of limited nature of issues relating to
execution i.e., discharge or satisfaction of the decree and is aligned
with the consequential provisions of Order XXI. Section 47 is
intended to prevent multiplicity of suits. It simply lays down the
procedure and the form whereby the court reaches a decision. For
the applicability of the section, two essential requisites have to be
kept in mind. Firstly, the question must be the one arising between
the parties and secondly, the dispute relates to the execution,
discharge or satisfaction of the decree. Thus, the objective of
Section 47 is to prevent unwanted litigation and dispose of all
objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees,
Executing Court must not go beyond the decree. However, there is
18
steady rise of proceedings akin to a re-trial at the time of execution
causing failure of realisation of fruits of decree and relief which the
party seeks from the courts despite there being a decree in their
favour. Experience has shown that various objections are filed before
the Executing Court and the decree holder is deprived of the fruits of
the litigation and the judgment debtor, in abuse of process of law, is
allowed to benefit from the subject matter which he is otherwise not
entitled to.
26. The general practice prevailing in the subordinate courts is that
invariably in all execution applications, the Courts first issue show
cause notice asking the judgment debtor as to why the decree
should not be executed as is given under Order XXI Rule 22 for
certain class of cases. However, this is often misconstrued as the
beginning of a new trial. For example, the 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,
19
must be decided in one and the same trial. Order I and Order II which
relate to Parties to Suits and Frame of Suits with the object of
avoiding multiplicity of proceedings, provides for joinder of parties
and joinder of cause of action so that common questions of law and
facts could be decided at one go.
28. Order I Rule 10(2) empowers the Court to add any party who
ought to have been joined, whether as a plaintiff or defendant, or
whose presence before the Court may be necessary in order to
enable the Court to effectually and completely adjudicate upon and
settle all questions involved in the suit. Further, Order XXII Rule 10
provides that in cases of assignment, creation or devolution of any
interest during the pendency of the suit, the suit may, by leave of the
Court, be continued by or against the person to or upon whom such
interest has come to be devolved.
29. While CPC under Rules 30 to 36 of Order XXI provides for
execution of various decrees, the modes of execution are common
for all. Section 51 of CPC lists the methods of execution as by
delivery of property; by attachment and sale; by arrest and detention
in civil prison; by appointing a receiver or in any other manner as the
nature of relief granted may require. Moreover, Order XL Rule 1
20
contemplates the appointment of the Receiver by the Court. In
appropriate cases, the Receiver may be given possession, custody
and/or management of the property immediately after the decree is
passed. Such expression will assist in protection and preservation of
the property. This procedure within the framework of CPC can provide
assistance to the Executing Court in delivery of the property in
accordance with the decree.
30. As to the decree for the delivery of any immovable property,
Order XXI Rule 35 provides that possession thereof shall be delivered
to the party to whom it has been adjudged, or to such person as he
may appoint to receive delivery on his behalf, and, if necessary, by
removing any person bound by the decree who refuses to vacate the
property.
31. As the trial continues between specific parties before the Courts
and is based on available pleadings, sometimes vague description of
properties raises genuine or frivolous third-party issues before
delivery of possession during the execution. A person who is not
party to the suit, at times claims separate rights or interests giving
rise to the requirement of determination of new issues.
21
32. While there may be genuine claims over the subject matter
property, the Code also recognises that there might be frivolous or
instigated claims to deprive the decree holder from availing the
benefits of the decree. Sub-rule (2) of Rule 98 of Order XXI
contemplates such situations and provides for penal consequences
for resistance or obstruction occasioned without any just cause by
the judgment debtor or by some other person at his instigation or on
his behalf, or by the transferee, where such transfer was made
during the pendency of the suit or execution proceedings. However,
such acts of abuse of process of law are seldom brought to justice by
sending the judgment debtor, or any other person acting on his
behalf, to the civil prison.
33. In relation to execution of a decree of possession of immovable
property, it would be worthwhile to mention the twin objections
which could be read. Whereas under Order XXI Rule 97, a decree
holder can approach the court pointing out about the obstruction and
require the court to pass an order to deal with the obstructionist for
executing a decree for delivering the possession of the property, the
obstructionist can also similarly raise objections by raising new
issues which take considerable time for determination.
22
34. However, under Order XXI Rule 99 it is a slightly better position,
wherein a person, other than the judgment debtor, when is
dispossessed of immoveable property by the decree holder for
possession of such property, files an application with 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.
23
36. Some of the measures in that regard would include that before
settlement of issues, the Court must, in cases, involving delivery of
or any rights relating to the property, exercise power under Order XI
Rule 14 by ordering production of documents upon oath, relating to
declaration regarding existence of rights of any third party, interest
in the suit property either created by them or in their knowledge. It
will assist the court in deciding impleadment of third parties at an
early stage of the suit so that any future controversy regarding nonjoinder 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
24
as necessary parties to the suit. Before settlement of issues, the
Court may appoint a Commissioner for the purpose of carrying out
local investigation recording exact description and demarcation of
the property including the nature and occupation of the property. In
addition to this, the Court may also appoint a Receiver under Order
XL Rule 1 to secure the status of the property during the pendency of
the suit or while passing a decree.
b) Issue public notice specifying the suit property and inviting
claims, if any, that any person who is in possession of the suit
property or claims possession of the suit property or has any right,
title or interest in the said property specifically stating that if the
objections are not raised at this stage, no party shall be allowed to
raise any objection in respect of any claim he/she may have
subsequently.
c) Affix such notice on the said property.
d) Issue such notice specifying suit number etc. and the Court
in which it is pending including details of the suit property and
have the same published on the official website of the Court.
25
38. Based on the report of the Commissioner or an application
made in that regard, the Court may proceed to add necessary or
proper parties under Order I Rule 10. The Court may permit objectors
or claimants upon joining as a party in exercise of power under Order
I Rule 10, make a joinder order under Order II Rule 3, permitting such
parties to file a written statement along with documents and lists of
witnesses and proceed with the suit.
39. If the above suggested recourse is taken and subsequently if an
objection is received in respect of “suit property” under Order XXI
Rule 97 or Rule 99 of CPC at the stage of execution of the decree, the
Executing Court shall deal with it after taking into 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
16 AIR 1991 SC 2251
26
exclusively with administration of justice, is expected to do better.
With pragmatic approach and judicial interpretations, the Court must
not allow the judgment debtor or any person instigated or raising
frivolous claim to delay the execution of the decree. For example, in
suits relating to money claim, the Court, may on the application of
the plaintiff or on its own motion using the inherent powers under
Section 151, under the circumstances, direct the defendant to
provide security before further progress of the suit. The
consequences of non-compliance of any of these directions may be
found in Order XVII Rule 3.
41. Having regard to the above background, wherein there is urgent
need to reduce delays in the execution proceedings we deem it
appropriate to issue few directions to do complete justice. These
directions are in exercise of our jurisdiction under Article 142 read
with Article 141 and Article 144 of the Constitution of India in larger
public interest to subserve the process of justice so as to bring to an
end the unnecessary ordeal of litigation faced by parties awaiting
fruits of decree and in larger perspective affecting the faith of the
litigants in the process of law.
27
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.
2. 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.
3. 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.
28
4. 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.
5. The Court must, before passing the decree, pertaining
to 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.
6. 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.
7. 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.
8. 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
29
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.
9. 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.
10. 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.
11. 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
30
from whom he may have the ability to derive share, profit or
property.
12. 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.
13. 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.
14. 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.
31
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.
32
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1659-1660 of 2021
(@ SPECIAL LEAVE TO APPEAL NOS. 7965-7966/2020)
RAHUL S SHAH ….APPELLANT (S)
VERSUS
JINENDRA KUMAR GANDHI & ORS. ….RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 1661-1662 of 2021
(@ SLP (C) NOS. 11859-11860/2020)
WITH
CIVIL APPEAL NOS. 1663-1664 of 2021
(@ SLP (C) NOS. 11792-11793/2020)
O R D E R
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
33
dismissed several Writ Petitions. The course of the litigation
highlights the malaise of constant abuse of procedural provisions
which defeats justice, i.e. frivolous attempts by unsuccessful litigants
to putting up spurious objections and setting up third parties, to
object, delay and obstruct the execution of a decree.
3. The third respondent (hereafter referred to as ‘Narayanamma’)
had purchased a property measuring 1 Acre (Survey No. 15/2) of
Deevatige Ramanahalli, Mysore Road, Bengaluru (hereafter referred
to as ‘suit property’) under the sale deed dated 17.03.1960. The suit
land was converted and got merged in the municipal limits of
Bengaluru and was assigned with Municipal Corporation No. 327 and
328, Mysore Road, Bengaluru. Narayanamma sold 1908 square yard
of the suit property in Municipal Corporation (Survey No. 327) to 2nd
and 3rd respondents (hereafter referred to ‘Jitendra’ and `Urmila’)
under a sale deed dated 13.05.1986. This was demarcated with the
sketch annexed to the sale deed. The adjacent portion of property,
Survey No. 327 was sold to Shri Moolendra Kumar Gandhi and Smt.
Baby Gandhi by another sale deed dated 13.05.1986. This property
was also demarcated in the sketch and clearly shows its dimensions
and boundaries annexed to the sale deed. Therefore, the first two
34
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 suit17
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 from entering the
property which Narayanamma claimed was hers.
4. During the pendency of the suit for declaration, the first
purchasers filed two suits18 against the vendors for possession.
17 O.S. No. 986/1987
18 O.S. Nos. 9077/ 1996 and 9078/1996
35
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.19In the possession suits the vendors filed
counter claims (dated 18.04.1998). During the pendency of
proceedings the purchasers sought for transfer and mutation of
property in their names which were declined by the Municipal
Corporation; this led to their approaching the High Court in Writ
Petition No. 19205/1992 which was disposed of with a direction20 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
19 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004
20 Dated 05.11.1998
36
by the purchasers and dismissed the vendor’s suit for injunction.
The decree holders preferred execution proceedings.21 They filed
applications under Order XXI Rule 97 of the Code of Civil Procedure
(CPC) since the judgment debtors/vendors had sold the property to
the appellant and respondents no. 4 to 7. The appellant i.e. a
subsequent purchaser filed objections.
6. During the pendency of the proceedings the front portion of the
suit property bearing Municipal Corporation No. 327, Mysore road,
Bangalore became the subject matter of the acquisition for the
Bangalore Metro Project. The decree holders (the first two
respondents) preferred objections to the proposed acquisition and
further claimed the possession. In the meanwhile, aggrieved by the
dismissal of the suit and decreeing the suit for possession,
Narayanamma filed first appeals in the High Court22. 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 order23 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
21 Execution Case Nos. 458-459/2007
22 R.F.A. No. 661-663/ 2007
23 Dated 10.04.208
37
dismissed all the appeals pending before it. The Special Leave
Petition preferred by the vendors24 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 deeds25
.
This was brought to the notice of the High Court which had dismissed
the appeal preferred by the vendors.
8. During the pendency of the proceedings before the High Court
Narayanamma, the appellant and respondents no. 4 to 7 filed
indemnity bonds claiming that there was no dispute with respect to
the suit property and claimed the compensation in respect of
portions that were acquired. These were brought to the notice of the
High Court which passed an order in W.P. No. 9337/2008. The court
considered all the materials and held that the compensation could
not have been dispersed to the vendors, the appellant and
Respondents no. 4 to 7. The High Court issued directions to them to
deposit the amounts. An appeal was preferred by the appellant and
24 S.L.P. (C) Nos. 16349-13651/2010
25 Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004
38
the said respondents, against that order, which was rejected by the
Division Bench.26 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. 2099/201127 the High Court
held that the decree holder/purchasers were entitled to transfer of
khata of property in their names and directed to hold an inquiry
against the Revenue Officer. Since the orders of the High Court, with
respect to the deposits of amounts, were not complied with,
contempt proceedings were taken.
9. The High Court in another order dated 19.04.2013 directed
Narayanamma and respondents no. 4 to 7 to deposit the amounts.
That order in contempt proceedings (C.C.C. No. 280/2011) was
challenged before this Court in a special leave petition28 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.
26 Dated 28.10.2009
27 Dated 17.07.2013
28 SLP (C) No. 18031/2013
39
10. The execution proceedings initiated by the decree holders
resulted in the court requiring parties to lead evidence, in view of the
obstruction by the appellant and respondents no. 4 to 7, by its order
dated 23.04.2010. When obstruction proceedings were pending
under Order XXI Rule 97, the judgment debtor i.e. the vendors
initiated criminal proceedings in 2016 against the decree holders;
these were stayed by the High Court on 20.06.2016 and later
quashed on 16.03.2017. The judgment debtors had alleged forgery
of certain documents. The High Court directed appointment of Court
Commissioner to identify and measure the property. At the time of
disposal of the criminal proceedings High Court directed that the
Commissioner’s report along with the objections of the Judgment
debtors ought to be forwarded to the Executing Court.
11. In the meanwhile, by an order the Executing Court had
appointed the Taluka Surveyor of BBMP as the Court Commissioner
and directed him to visit the spot and survey and fix the boundaries
of decretal property. Recall of these orders was sought by the
judgment debtors; they also sought for reference to forensic
examination by a Handwriting Expert of the sale documents. These
two review applications were dismissed; and on 13.06.2017 the
40
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 appeals29 were
preferred by obstructers challenging the decision of the Executing
Court dated 15.02.2017. By impugned common order all these Writ
Petitions and appeals were dismissed.
13. It is argued by Mr. Shailesh Madiyal on behalf of the appellant
(Rahul Shah) that the impugned order has the effect of diluting the
order of the Executing Court dated 23.04.2010 with respect to survey
of the entire property. It was pointed out by the counsel for the
appellant that there were disputes with respect to boundaries and
identity of the properties as between parties. Referring to the order,
it was submitted that the Court had noticed that the High Court in
earlier Writ Petitions had directed the Special Land Acquisition Officer
to hold an enquiry and if necessary refer the matter to Civil Court
under Section 30 of the Land Acquisition Act. In view of all these
disputes, questions especially related to the boundaries and the
29 R.F.A. Nos. 441, 468 and 469/2017
imprecise nature of the extent and location of the disputed
properties, the impugned order should be interfered with and the
reliefs sought by the appellant be granted. Learned Counsel
submitted that subsequently by order dated 31.10.2014 the
Executing Court erroneously held that Sketch Exhibit P-26 was drawn
by Revenue Authorities whereas in fact it was introduced by
handwritten sketch given by the decree holders.
14. Learned counsel submitted that decree holder’s efforts in all the
proceedings were to confuse the identity of the property and
therefore had sought clubbing of both execution cases; this request
was rejected by the Executing Court after concluding that the
property sought to be executed in two cases were different and
further that rights claimed too were distinct.
15. Learned counsel for the appellant in the second set of petitions,
i.e. SLP (C) No. 11859-11860 of 2020 and SLP (C) No. 11792-11793
of 2020, on the other hand urged that the High Court as well as the
Executing Court fell into error in holding that what was sought by the
obstructer (i.e. the appellant Gopilal Ladha) was far in excess of what
was left after decree holders had purchased and therefore the
conveyances had overlapped.
16. Mr. Arunava Mukherjee appearing for the second set of
appellants also reiterated the submissions of Mr. Shailesh Madiyal
that the decree holders had intentionally confused the identity of the
property. He highlighted that the High Court acted in error in
rejecting the appellants’ request for subjecting documents to forensic
examination by handwriting experts. It was submitted that this
aspect was completely overlooked because the appellants’ had
raised serious doubts with respect to the genuineness and
authenticity of the signatures of the documents.
17. The respondents urged that this Court should not interfere with
the findings of the High Court. Learned counsel reiterated that
numerous proceedings were taken out and that the judgment
debtors had sold the very same property three times over – at least
two times after the decree holders purchased their portions of the
property and during the pendency of the suits filed by them. The
judgment debtors had sought a declaration that the sale deeds
executed in favour of the decree holders were not genuine and lost.
Thereafter, the judgment debtor and some of the obstructers
succeeded in collecting compensation in respect of the portion of the
property that had been acquired. Ultimately, those amounts had to
be disbursed by the Court orders. The judgment debtors/ vendor
even sought forensic examination and initiated the criminal
proceedings that were quashed by the High Court. The High Court
took note of all these circumstances and passed a just order,
requiring the appointment of a Court Commissioner to identify and
measure the properties. While doing so the Executing Court has
been asked to take into consideration all the materials on record
including the reports submitted by the previous Court Commissioner
Mr. Venkatesh Dalwai.
Discussion and conclusions:
18. It is quite evident from the above discussion that the vendor and her son (judgment debtors) after executing the sale deed in respect of a major portion of the property, questioned the transaction by a suit for declaration. The decree holders also filed a suit for possession. During the pendency of these proceedings, two sets of sale deeds were executed. The vendors’ suit was dismissed – the decree of dismissal was upheld at the stage of the High Court too.
On the other hand, the purchasers’ suit was decreed and became the
subject matter of the appeal. The High Court dismissed the first
appeal; this Court dismissed the Special Leave Petition. This became
the background for the next stage of the proceedings, i.e. execution.
Execution proceedings are now being subsisting for over 14 years. In
the meanwhile, numerous applications including criminal
proceedings questioning the very same documents that was the
subject matter of the suit were initiated. In between the portion of
the property that had been acquired became the subject matter of
land acquisition proceedings and disbursement of the compensation.
That became the subject matter of writ and contempt proceedings.
Various orders of the Executing Court passed from time to time,
became the subject matter of writ petitions and appeals – six of
them, in the High Court. All these were dealt with together and
disposed of by the common impugned order.
19. A perusal of the common impugned order shows that High
Court has painstakingly catalogued all proceedings chronologically
and their outcomes. The final directions in the impugned order is as
follows:
(a) the other challenge by the JDrs and the
Obstructors having been partly favoured, the
impugned orders of the Executing Court directing Delivery
Warrant, are set at naught, and the matter is remitted back
for consideration afresh by appointing an expert
person/official as the Court Commissioner for accomplishing
the identification & measurement of the decreetal
properties with the participation of all the stake-holders, in
that exercise subject to all they bearing the costs & fees
thereof, equally;
(b) it is open to the Executing Court to take into
consideration the entire evidentiary material on record
hitherto including the Report already submitted by the
Court Commissioner Shri Venkatesh Dalwai,
(c) the amount already in deposit and the one to be
deposited by the Obstructors in terms of orders of Coordinate Benches of this Court mentioned in paragraph 8
supra shall be released to the parties concerned, that
emerge victorious in the Execution Petitions;
(d) the JDrs shall jointly pay to the DHrs collectively
an exemplary cost of Rs. 5,00,000/- (Rupees five lakh) only
in each of the Execution Petitions within a period of eight
weeks, regardless of the outcome of the said petitions;
and, if, the same is not accordingly paid, they run the risk
of
being excluded from participation in the
Execution Proceedings, in the discretion of the learned
judge of the Court below; and,
(e) the entire exercise including the disposal of the
Execution Petitions shall be accomplished within an outer
limit of six months, and the compliance of such
accomplishment shall be reported to the Registrar General
of this Court.
No costs qua obstructors.
Sd/-
JUDGE
20. The contentions of the Special Leave Petition mainly centre
around one or the other previous orders of the Executing Court with
regard identification of the property and boundary etc and the
subjecting documents to forensic examination. As is evident from
the reading of the final order, the High Court has adopted a fair
approach requiring the Executing Court to appoint a Court
Commissioner to verify the identity of the suit properties and also
consider the materials brought on record including the reports of the
previous local commission. In the light of this, the arguments of the
present appellants are unmerited and without any force. The Court
also finds that the complaint that documents ought to be subjected
to forensic examination, is again insubstantial. The criminal
proceedings initiated during the pendency of the execution
proceedings – in 2016 culminated in the quashing of those
proceedings. The argument that the documents are not genuine or
that they contain something suspicious ex-facie appears only to be
another attempt to stall execution and seek undue advantage. As a
result, the High Court correctly declined to order forensic
examination. This Court is of the opinion that having regard to the
totality of circumstances the direction to pay costs quantified at Rs. 5
lakh (to be complied by the judgment debtor) was reasonable, given
the several attempts by the decree holder to ensure that the fruits of
the judgment secured by them having been thwarted repeatedly. As
a result, the direction to pay costs was just and proper.
21. The High Court has directed the Executing Court to complete
the process within six months. That direction is affirmed. The
parties are hereby directed to cooperate with the Executing Court; in
case that court finds any obstruction or non-cooperation it shall
proceed to use its powers, including the power to set down and
proceed ex-parte any party or impose suitably heavy costs.
Therefore, in light of the above observations these appeals are liable
to be dismissed.
22. These appeals portray the troubles of the decree holder in not
being able to enjoy the fruits of litigation on account of inordinate
delay caused during the process of execution of decree. As on
31.12.2018, there were 11,80,275 execution petitions pending in the
subordinate courts. As this Court was of the considered view that
some remedial measures have to be taken to reduce the delay in
disposal of execution petitions, we proposed certain suggestions
which have been furnished to the learned counsels of parties for
response. We heard Mr. Shailesh Madiyal, learned counsel for the
petitioner and Mr. Paras Jain, learned counsel for the respondent.
23. This court has repeatedly observed that remedies provided for
preventing injustice are actually being misused to cause injustice, by
preventing a timely implementation of orders and execution of
decrees. This was discussed even in the year 1872 by the Privy
Counsel in The General Manager of the Raja Durbhunga v.
Maharaja Coomar Ramaput Sing30 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 Bubna31
, 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
30 (1871-72) 14 Moore’s I.A. 605
31 (2009) 9 SCC 689
49
execution proceedings which are supposed to be handmaid of justice
and sub-serve the cause of justice are, in effect, becoming tools
which are being easily misused to obstruct justice.
24. In respect of execution of a decree, Section 47 of CPC
contemplates adjudication of limited nature of issues relating to
execution i.e., discharge or satisfaction of the decree and is aligned
with the consequential provisions of Order XXI. Section 47 is
intended to prevent multiplicity of suits. It simply lays down the
procedure and the form whereby the court reaches a decision. For
the applicability of the section, two essential requisites have to be
kept in mind. Firstly, the question must be the one arising between
the parties and secondly, the dispute relates to the execution,
discharge or satisfaction of the decree. Thus, the objective of
Section 47 is to prevent unwanted litigation and dispose of all
objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees,
Executing Court must not go beyond the decree. However, there is
steady rise of proceedings akin to a re-trial at the time of execution
causing failure of realisation of fruits of decree and relief which the
party seeks from the courts despite there being a decree in their
favour. Experience has shown that various objections are filed before
the Executing Court and the decree holder is deprived of the fruits of
the litigation and the judgment debtor, in abuse of process of law, is
allowed to benefit from the subject matter which he is otherwise not
entitled to.
26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the Courts first issue show cause notice asking the judgment debtor as to why the decree
should not be executed as is given under Order XXI Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the 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 of parties
51
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
52
passed. Such expression will assist in protection and preservation of
the property. This procedure within the framework of CPC can provide
assistance to the Executing Court in delivery of the property in
accordance with the decree.
30. As to the decree for the delivery of any immovable property,
Order XXI Rule 35 provides that possession thereof shall be delivered
to the party to whom it has been adjudged, or to such person as he
may appoint to receive delivery on his behalf, and, if necessary, by
removing any person bound by the decree who refuses to vacate the
property.
31. As the trial continues between specific parties before the Courts
and is based on available pleadings, sometimes vague description of
properties raises genuine or frivolous third-party issues before
delivery of possession during the execution. A person who is not
party to the suit, at times claims separate rights or interests giving
rise to the requirement of determination of new issues.
32. While there may be genuine claims over the subject matter
property, the Code also recognises that there might be frivolous or
instigated claims to deprive the decree holder from availing the
benefits of the decree. Sub-rule (2) of Rule 98 of Order XXI
53
contemplates such situations and provides for penal consequences
for resistance or obstruction occasioned without any just cause by
the judgment debtor or by some other person at his instigation or on
his behalf, or by the transferee, where such transfer was made
during the pendency of the suit or execution proceedings. However,
such acts of abuse of process of law are seldom brought to justice by
sending the judgment debtor, or any other person acting on his
behalf, to the civil prison.
33. In relation to execution of a decree of possession of immovable
property, it would be worthwhile to mention the twin objections
which could be read. Whereas under Order XXI Rule 97, a decree
holder can approach the court pointing out about the obstruction and
require the court to pass an order to deal with the obstructionist for
executing a decree for delivering the possession of the property, the
obstructionist can also similarly raise objections by raising new
issues which take considerable time for determination.
34. However, under Order XXI Rule 99 it is a slightly better position,
wherein a person, other than the judgment debtor, when is
dispossessed of immoveable property by the decree holder for
possession of such property, files an application with objections.
54
Such objections also lead to re-trial, but as the objector is already
dispossessed, the execution of the decree is more probable and
expeditious. In Order XXI Rule 97 the obstructionist comes up with
various objections that ideally should have been raised at the time of
adjudication of suit. Such obstructions for execution could be avoided
if a Court Commissioner is appointed at the proper time.
35. Having considered the abovementioned legal complexities, the
large pendency of execution proceedings and the large number of
instances of abuse of process of execution, we are of the opinion that
to avoid controversies and multiple issues of a very vexed question
emanating from the rights claimed by third parties, the Court must
play an active role in deciding all such related issues to the subject
matter during adjudication of the suit itself and ensure that a clear,
unambiguous, and executable decree is passed in any suit.
36. Some of the measures in that regard would include that before
settlement of issues, the Court must, in cases, involving delivery of
or any rights relating to the property, exercise power under Order XI
Rule 14 by ordering production of documents upon oath, relating to
declaration regarding existence of rights of any third party, interest
in the suit property either created by them or in their knowledge. It
55
will assist the court in deciding impleadment of third parties at an
early stage of the suit so that any future controversy regarding nonjoinder of necessary party may be avoided. It shall ultimately
facilitate an early disposal of a suit involving any immovable
property.
37. It also becomes necessary for the Trial Court to determine what
is the status of the property and when the possession is not disputed,
who and in what part of the suit property is in possession other than
the defendant. Thus, the Court may also take recourse to the
following actions:
a) Issue commission under Order XXVI Rule 9 of CPC.
A determination through commission, upon the institution of a
suit shall provide requisite assistance to the court to assess and
evaluate to take necessary steps such as joining all affected parties
as necessary parties to the suit. Before settlement of issues, the
Court may appoint a Commissioner for the purpose of carrying out
local investigation recording exact description and demarcation of
the property including the nature and occupation of the property. In
addition to this, the Court may also appoint a Receiver under Order
56
XL Rule 1 to secure the status of the property during the pendency of
the suit or while passing a decree.
b) Issue public notice specifying the suit property and inviting
claims, if any, that any person who is in possession of the suit
property or claims possession of the suit property or has any right,
title or interest in the said property specifically stating that if the
objections are not raised at this stage, no party shall be allowed to
raise any objection in respect of any claim he/she may have
subsequently.
c) Affix such notice on the said property.
d) Issue such notice specifying suit number etc. and the Court in
which it is pending including details of the suit property and have the
same published on the official website of the Court.
38. Based on the report of the Commissioner or an application
made in that regard, the Court may proceed to add necessary or
proper parties under Order I Rule 10. The Court may permit objectors
or claimants upon joining as a party in exercise of power under Order
I Rule 10, make a joinder order under Order II Rule 3, permitting such
parties to file a written statement along with documents and lists of
witnesses and proceed with the suit.
57
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 Sinha32, this
Court had observed that the provisions of the Code as regards
execution are of superior judicial quality than what is generally
available under the other statutes and the Judge, being entrusted
exclusively with administration of justice, is expected to do better.
With pragmatic approach and judicial interpretations, the Court must
not allow the judgment debtor or any person instigated or raising
frivolous claim to delay the execution of the decree. For example, in
suits relating to money claim, the Court, may on the application of
the plaintiff or on its own motion using the inherent powers under
Section 151, under the circumstances, direct the defendant to
32 AIR 1991 SC 2251
58
provide security before further progress of the suit. The
consequences of non-compliance of any of these directions may be
found in Order XVII Rule 3.
41. Having regard to the above background, wherein there is urgent
need to reduce delays in the execution proceedings we deem it
appropriate to issue few directions to do complete justice. These
directions are in exercise of our jurisdiction under Article 142 read
with Article 141 and Article 144 of the Constitution of India in larger
public interest to subserve the process of justice so as to bring to an
end the unnecessary ordeal of litigation faced by parties awaiting
fruits of decree and in larger perspective affecting the faith of the
litigants in the process of law.
42. All Courts dealing with suits and execution proceedings shall
mandatorily follow the below-mentioned directions:
1. In suits relating to delivery of possession, the court must
examine the parties to the suit under Order X in relation to
third
2. party interest and further exercise the power under Order
XI Rule 14 asking parties to disclose and produce documents,
59
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
60
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
61
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
62
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
63
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.
*REVISED
ITEM NO.301 Court 1 (Video Conferencing) SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) Nos. 7965-7966/2020
(Arising out of impugned final judgment and order dated 16-01-
2020 in WP No. 39296/2016 and WP No. 39382/2016 passed by the
High Court of Karnataka at Bengaluru)
RAHUL S SHAH Petitioner(s)
VERSUS
JINENDRAKUMAR GANDHI & ORS. Respondent(s)
(IA No. 7298/2021 – EXEMPTION FROM FILING O.T. and IA No.
57352/2020 – PERMISSION TO FILE LENGTHY LIST OF DATES)
WITH
SLP(C) No. 11859-11860/2020 (IV-A)
(IA No. 100637/2020 – EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT and IA No. 100659/2020 – PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
SLP(C) No. 11792-11793/2020 (IV-A)
(IA No. 100021/2020 – EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT and IA No. 100660/2020 – PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
Date : 22-04-2021 These matters were called on for hearing today.
CORAM :
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE L. NAGESWARA RAO
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
For parties
Mr. Arunava Mukherjee, AOR
Mr. Shailesh Madiyal, AOR
Ms. Rakhi M., Adv.
Mr. Paras Jain, Adv.
Mr. T. Harish Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
Delay in filing substitution application is
condoned. Application for substitution to bring on record
the legal representative(s) of deceased respondent No. 3
in SLP Nos. 7965-66/2020 stands allowed.
Leave granted.
The appeals are dismissed in terms of the signed
reportable order.
Pending applications stand disposed of.
(SANJAY KUMAR-II) (PRADEEP KUMAR)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
[Signed reportable order is placed on the file.]
*Revised ROP is prepared only for the purpose of uploading reportable order on
29.04.2021 after correcting numbering of sub-paragraphs of Paragraph 42.
67
ITEM NO.301 Court 1 (Video Conferencing) SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) Nos. 7965-7966/2020
(Arising out of impugned final judgment and order dated 16-01-
2020 in WP No. 39296/2016 and WP No. 39382/2016 passed by the
High Court of Karnataka at Bengaluru)
RAHUL S SHAH Petitioner(s)
VERSUS
JINENDRAKUMAR GANDHI & ORS. Respondent(s)
(IA No. 7298/2021 – EXEMPTION FROM FILING O.T. and IA No.
57352/2020 – PERMISSION TO FILE LENGTHY LIST OF DATES)
WITH
SLP(C) No. 11859-11860/2020 (IV-A)
(IA No. 100637/2020 – EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT and IA No. 100659/2020 – PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
SLP(C) No. 11792-11793/2020 (IV-A)
(IA No. 100021/2020 – EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT and IA No. 100660/2020 – PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
Date : 22-04-2021 These matters were called on for hearing today.
CORAM :
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE L. NAGESWARA RAO
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
For parties
Mr. Arunava Mukherjee, AOR
Mr. Shailesh Madiyal, AOR
Ms. Rakhi M., Adv.
Mr. Paras Jain, Adv.
Mr. T. Harish Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
Delay in filing substitution application is
condoned. Application for substitution to bring on record
the legal representative(s) of deceased respondent No. 3
in SLP Nos. 7965-66/2020 stands allowed.
Leave granted.
The appeals are dismissed in terms of the signed
reportable order.
Pending applications stand disposed of.
(SANJAY KUMAR-II) (PRADEEP KUMAR)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
[Signed reportable order is placed on the file.]