Rahul S Shah vs Jinendrakumar Gandhi on 22 April, 2021


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Supreme Court of India

Rahul S Shah vs Jinendrakumar Gandhi on 22 April, 2021

Author: Hon’Ble The Justice

Bench: Hon’Ble The Justice, L. Nageswara Rao, S. Ravindra Bhat

                                                                   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)

                                                ORDER

1. Leave granted.

Signature Not Verified

2.
Digitally signed by
Nidhi Ahuja
Date: 2021.04.23
The present appeals arise out of the common judgment and
17:48:51 IST
Reason:

order dated 16th January, 2020 of the Karnataka High Court which

1
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 2 nd 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
2
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 suit 1 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

1
O.S. No. 986/1987
3
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.

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. 3In

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

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
was disposed of with a direction 4 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 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,
4
Dated 05.11.1998
5
Execution Case Nos. 458-459/2007
5
Narayanamma filed first appeals in the High Court 6. 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 order 7 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 dismissed all the appeals pending

before it. The Special Leave Petition preferred by the vendors 8

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
6
R.F.A. No. 661-663/ 2007
7
Dated 10.04.208
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
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 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. 2099/2011 11 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.

10

Dated 28.10.2009
11
Dated 17.07.2013
7

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. 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

12
SLP (C) No. 18031/2013
8
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 appeals 13

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

R.F.A. Nos. 441, 468 and 469/2017
9

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 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.

10

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
11
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
12
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

13
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

14
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.

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
15
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

16
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

17
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 Sing 14 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, 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
14
(1871-72) 14 Moore’s I.A. 605
15
(2009) 9 SCC 689
18
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 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
19
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

20
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 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
21
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

22
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
23
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.

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
24
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 non-joinder 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

25
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.

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

26
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 Sinha 16, 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

16
AIR 1991 SC 2251
27
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.

42. All Courts dealing with suits and execution proceedings shall

mandatorily follow the below-mentioned directions:

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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, 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.

29

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 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.

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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 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.

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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

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

32
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 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.

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