In the year 2002, sweeping amendments were introduced in the Code of Civil Procedure 1908 with a view to accelerating the tardy process of civil trials. But, unfortunately, no amendments were introduced in Order 21 of the Code, barring two inconsequential amendments: (i) in O.21 R.32 for decree of restitution of conjugal rights, which is otherwise not specifically executable, and (ii) in O.21 R.92 about making a sale absolute.
As a result, the execution of a decree remains mired in umpteen procedural bottlenecks and hurdles. Thanks to these provisions, an execution proceeding almost mimics a regular trial, as far as the multiple stages are concerned. The root cause of this abuse is partly the scope of S.47 of CPC which empowers the executing court to decide all the questions arising between the parties……
Ambiguity in the Scope of S.47 of CPC
Even though there are a couple of judgments of various High Courts and the Supreme Court that the scope of S.47 is narrow and must not be allowed to be misused by any party to start a fresh round of litigation, the same continues to be abused by the unscrupulous JDs having vested interest in prolonging or avoiding the execution of the decree. This is legally possible due to the ambiguous scope of S.47 of CPC, and also because a decree holder is still required to move a separate application for each relief. Naturally, the Say of the JD is required to be obtained on each and every application, which is again to be heard and decided by the Execution Court, one after another ! This procedure consumes substantial number of court hours and the repeated postponements of the actual implementation of the decree.
In most of the moffusil courts, the execution proceedings (Darkhast) are taken up in the second-half of the day, amidst numerous applications for grant of injunctions in pending suits and other miscellaneous matters. In view of urgency involved in the injunction applications (Exh.5), the execution proceedings get relegated to lesser priority. Since judges do not get substantive points for disposing of the execution proceedings, they hardly devote any time to the Darkhast matters. In fact, there must be a separate judge / designated court exclusively dedicated to execution matters.
In the case of M/s Brakewel Automotive Components Pvt. Ltd., (AIR 2017 SC 1577), the Supreme Court has observed that execution of a decree cannot be thwarted on untenable grounds having no bearing on the validity or executability thereof. However, the very question of execution of a decree has been statutorily provided in S.47 of the Code giving a clear handle to a dishonest JD to take utmost advantage by filing frivolous applications challenging the validity or execution of the decree. No doubt, there is a plethora of judicial precedents that an execution court cannot travel beyond the decree or sit in appeal over the same. But, the judgments also provide a rider permitting a party to raise the question of lack of inherent jurisdiction or the nullity of a decree u/s 47 of the Code.
Delaying Execution for Years
This inconsistency gives a long rope to the JD to delay or frustrate execution of the decree for years. In fact, a Division Bench of Bombay High Court Court, in the case of Smt.Savitribai Salvi 2009 (4) ALL MR 559, has painfully observed this reality, which also drives many litigants / decree-holders to approach extra-judicial authorities for settlement of their claim. This is an utter failure of the legal system.
Wayback in the year 2002, the Supreme Court in the case of NSS Narayana Vs Gladstone Exports, (AIR 2002 SC 251), had observed about the ‘general impression amongst the litigants is that the difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree’. Similar observations were made by the Supreme Court in the case of Babulal Vs Hazarilal (AIR 1982 SC 818) that the JD tries to thwart the execution by all possible objections. In the said judgment, the Supreme Court had also referred to an ironic observation made by the Privy Council, as early as 1872 (Kuer Jung Bahadur Vs Bank of Upper India), that “the difficulties of a litigant in India begin when he has obtained a decree”, and had also cautioned the Courts in India to be careful to see that the process of the Court and the procedures are not abused by the JD in such a way as to make the Courts instrumental in defrauding the creditors who have obtained decrees in accordance with their rights.
There is a solitary Judgment of Karnataka High Court in the case of Vigneshwar Vs Gangabai (AIR 1997 Kar. 149) wherein it has been held that the ‘executing Court must be absolutely firm and ruthless in stopping mischievous tactics resorted to delay the execution’. But, the ground reality is altogether different !
Suggestions for Streamlining Execution Proceedings
Instead of requiring the DH to move separate applications consecutively for implementation of each relief, the Court must be adequately empowered to act suo motu on the reliefs which have been prayed for in the prescribed Execution Form itself. It is an anomaly, indeed, that even after filing the execution application in the Prescribed Format with all the modes of execution, separate applications for each relief are invited, followed by the Reply/Say of the JD and then hearing thereon. By adopting this procedure, the law provides ample scope to the JD for opposing those reliefs and the mode of execution. In many cases, proceedings start resembling the actual trial of a suit. In the lighter vein, it is rightly said that it is easy to get a decree but very hard to execute it. Quite often, the DH never gets to enjoy the fruits of a decree in his lifetime. And, that is a mockery of justice and reflects very poorly on our justice dispensation system.
It is time to realize that S.47 alongwith the exhaustive provisions contained in O.21 of CPC, 1908 are not only archaic and antiquated but have degenerated into a nightmarish piece of legislation for the decree holders. They need to be circumscribed to cut short all the procedural hassles so that the decree passed by the Civil Court is executed summarily. S.47 of the Code must either be repealed or bridled with a Proviso thereto, requiring the J.D. to file a comprehensive Say/Objections against all the reliefs sought, within the stipulated period of 30 days, and that such Objections to be heard and decided by the Executing Court summarily. There should also be a time limit for disposal of Execution Proceedings.
Will the Law Commission suggest appropriate amendments to ensure the speedy mode of execution of decree, free from the hassles and procedural bottlenecks?
Comments