Court must dispose of execution proceedings within 6 months
Executing Court must dispose of the execution proceedings within 6 months from the date of filing which may be extended only by recording reasons in writing for such delay, says the Supreme Court (SC) in Rahul S Shah v Jinendra Kumar Gandhi and Others [ (2021) 6 SCC 418].
Recently the SC in Pradeed Mehra v Harijivan J Jethwa & Others [2023 INSC 978] also reiterated the above directions.
Matters regarding execution alone can be decided
A bare reading of the Section 47 of the CPC shows that all questions between the parties to the suit in regard to the execution, discharge, and satisfaction of the decree can be decided by the executing court.
The executing court cannot go behind the decree. The executing Court has only extremely limited powers.
The executing court can allow objections under Section 47 of the CPC to the executability of the decree. All questions relating to the delivery of possession of the purchaser of the property and his representative shall be deemed to be parties to the suit.
SC Guidelines regarding execution proceedings
The guidelines issued by the SC with a view to reduce delays in the execution proceedings by exercising its powers under Article 142 read with Article 141 and Article 144 of the Constitution of India are as follows:
- In suits relating to delivery of possession, the trial court must examine the parties to the suit under Order X of the CPC in relation to third party interest and further exercise the power under Order XI Rule 14 of the CPC asking parties to disclose and produce documents, upon oath.
- Where the possession is not in dispute, the court may appoint commissioner to assess the accurate description and status of the property.
- After examination of parties under Order X of the CPC or production of documents under Order XI of CPC or receipt of commission report, the court must add all necessary or proper parties to the suit, to avoid multiplicity of proceedings and make such joinder of cause of action in the same suit.
- 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.
- The court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous regarding description and status.
- In a money suit, the court must invariably resort to Order XXI Rule 11 of the CPC, ensuring immediate execution of decree for payment of money on oral application.
- 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, at any stage, using powers under Section 151 CPC, demand security to ensure satisfaction 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. Court should refrain from entertaining application(s) already considered by the court while adjudicating the suit.
- 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.
- The court, where it finds the 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.
- 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.
- Executing court must dispose of the execution proceedings within six months from the date of filing.
- The executing court may direct the concerned police station to provide police assistance to such officials who are working towards execution of the decree.
- 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.
All the high courts are required to mandatorily complied with the above directions.
High Courts must update Rules in this regard
It further directed all the High Courts to update their Rules relating to execution of decrees within one year of the date of the above judgement in accordance with the Code of Civil Procedure (CPC).
Further reading
- Rahul S Shah v Jinendra Kumar Gandhi and Others [ (2021) 6 SCC 418]
- Pradeed Mehra v Harijivan J Jethwa & Others [2023 INSC 978]
