On April 22, 2021, the Supreme Court gave its decision in the case of Rahul S. Shah v. Jinendra Kumar Gandhi, whereby guidelines were issued to all courts to ensure speedy execution of decrees in civil proceedings. The Supreme Court also directed all courts dealing with suits and execution proceedings to mandatorily follow directions formulated by it.

Observing the constant abuse of procedural provisions to obstruct execution of decrees which defeats justice, the Supreme Court has directed all the High Courts to reconsider and update all rules relating to execution of decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of the Code of Civil Procedure, 1908 (‘CPC’) by April 21, 2022.

Brief Facts:

Rahul S. Shah (‘Appellant’) challenged a common order dated January 16, 2020 passed by the Karnataka High Court whereby execution proceedings pending for more than 14 (fourteen) years were disposed off (‘Impugned Order’).

The proceedings before the Karnataka High Court were challenges to various orders of the executing Court passed from time to time. The High Court while deciding the proceedings adopted a fair and balanced approach by, inter-alia, directing the executing Court to appoint a Court Commissioner to verify the identity of the suit properties and dispose the execution proceedings within a period of 6 (six) months.

In the backdrop of the appeals, the Supreme Court noted that the third respondent sold certain immovable properties i.e. the suit properties to the first and second Respondents (‘Purchasers’) by executing a sale deed. Subsequently, the third Respondent and her son (‘Sellers’) filed a suit challenging the sale deed. The Purchasers also filed a declaratory suit for the said suit properties. The suit filed by the Sellers was dismissed and accordingly the suit filed by the Purchasers was decreed by the trial Court and confirmed by the High Court as well as the Supreme Court in appeal. Thereafter, execution proceedings were initiated.

During pendency of the proceedings, the Sellers sold the suit properties several times including in favour of the Appellant and three others. Additionally, several other proceedings were also filed relating to the suit properties including objections, appeals and criminal proceedings. Some portion of the suit properties also became the subject matter of land acquisition proceedings and disbursement of compensation.

The Special Leave Petition before the Supreme Court mainly centred around one or the other previous orders of the executing Court about identification of the suit properties and boundary etc. and subjecting the documents to forensic examination.

Decision:

The Supreme Court upheld the order while affirming the directions of the High Court and dismissed the appeals before it. The Supreme Court observed that the appeals before it portrays the troubles of a decree holder in not being able to enjoy the fruits of litigation on account of inordinate delay caused during the process of execution of a decree.

The Supreme Court observed that there is an urgent need to reduce delays in the execution proceedings and issued directions in exercise of its 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 a decree.

Mandatory directions:

1. In suits relating to delivery of possession, a trial court must examine the parties to the suit under Order X CPC in relation to third party interest and further exercise the power under Order XI Rule 14 CPC asking parties to disclose and produce documents, upon oath including declaration pertaining to third party interest.
2. Where the possession is not in dispute and not a question of fact for adjudication, the court may appoint commissioner to assess the accurate description and status of the property.
3. After examination of parties under Order X CPC or production of documents under Order XI CPC 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 make such joinder of cause of action in the same suit.
4. Under Order XL Rule 1 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.
6. In a money suit, the court must invariably resort to Order XXI Rule 11 CPC, 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.
8. The court may, at any stage, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.
9. The court exercising jurisdiction under Section 47 or under Order XXI CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining application(s) already 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.
10. 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.
11. The court 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 CPC as well as grant compensatory costs in accordance with Section 35A CPC.
12. Under Section 60 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.
13. 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.
14. 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.
15. 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.

Please find a copy of the order here.

This update has been contributed by Murtaza Kachwalla (Partner) and Aashdin Chivalwala (Principal Associate, Designate).

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