Supreme Court: Execution Proceedings Should Be Disposed Of Within Six Months From Date Of Filing
The Supreme Court (SC) on 22 April 2021, in the case titled Rahul S Shah (Appellant) v. Jinendra Kumar Gandhi & Ors. (Respondents) heard an appeal regarding execution proceedings that were pending for over 14 years. The SC held that an Executing Court must dispose of all Execution proceedings within six months from the date of filing. The extension can be granted only by recording reasons in writing for such delay.
The SC bench comprising of Former CJI SA Bobde, Justices L. Nageswar Rao, and S. Ravindra Bhat held that all the High Courts (HCs) should update the rules regarding Execution of Decrees within one year of this order.
The Top Court issued the said directions while exercising its jurisdiction under Article 142 read with Articles 141 and 144 of the Constitution of India. The power is exercised by the SC in the wider public interest to serve the process of justice in order to end the needless ordeal of litigation endured by parties awaiting the fruits of the decree and, in a broader sense, to affect litigants' confidence in the legal system.
Directions Issued by the SC
The Apex Court stated that "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."
- In proceedings which are related to the delivery of possession, it is necessary for the Court to examine the parties under Order X regarding third party interest;
- The Court must ask the parties to show documents that are in possession of the parties and it must include a declaration pertaining to third-party interest.
- Where there is no dispute regarding the possession and does not stand as a question of fact for adjudication to the Court, then the Court has the authority to appoint Commissioner to look after all the important details related to the property, mainly the proper description and the current status.
- After a thorough examination of the parties under Order X and all the documents are produced under Order XI or after the report of the Commissioner, the Court should add all the important and required proper parties to the suit to avoid multiple proceedings.
- Before passing the decree related to the delivery of possession of the particular property, the Court must make sure that the decree is simple to understand.
- The status of the property should also be mentioned along with a clear description of the same.
- Before problems are resolved in a suit for payment of money, the defendant will be forced to report his assets under oath, to the extent that he is being held liable in the suit.
- The Court can also, at any time during the pendency of the suit, use its powers under Section 151of Civil Procedural Code, 1908, to demand security to ensure the fulfilment of any decree.
- The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner.
- The Court should allow the taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like the appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
- The Court must in appropriate cases where it finds the objection or resistance or claims to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.
- Under section 60 of CPC the term "…in name of the judgment- debtor or by another person in trust for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.
- The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
- The 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.
The SC directed all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under the 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.
It added that 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.
The SC dismissed the appeal and ponied out that these appeals depict the decree holder's difficulties in enjoying the fruits of litigation due to excessive delay incurred during the course of decree execution.