Execution Proceedings in India: The Not-So Executable nature

Difficulties of a litigant in India begin when he has obtained a decree--- J.W. Colville, J in The General Manager of The Raja Durbhunga Vs. Maharaja Coomar Ramaput Sing1 

One question that still hovers over my mind since the time I joined the legal profession is the requirement or rather necessity to prefer a subsequent round of litigation in the face of execution proceedings before the court if one wants to enjoy the fruits of litigation in which the litigant has succeeded. At that time raising this question in front of a senior collegemate of mine even led him to mock me before one of my own classmates but despite that this question left me perplexed.

But this feeling of bizzare rather started to sink in when I delved a little more into the profession and came across colleagues who themselves felt the same way as me backed by the opinions of the Honourable judges who echoed a similar sentiment by way of their erudite judgments.

If we look at Section 51 of Civil Procedure Code, 1908 which is titled as ‘Powers of Court to Enforce Execution’ same reads as:

Subject to such conditions and limitations as may be prescribed, the court may ON THE APPLICATION OF DECREE-HOLDER order execution of the decree.

Hence, usage of the word ‘on the application of Decree-Holder’ makes filing of an Execution Petition by the Decree Holder, a sine qua non if he wants to enjoy the fruits of litigation in which he has succeeded irrespective of the fact that this litigation itself bore the fruits after many years and numerous adjournments which itself might have witnessed passing away of the initiator of litigation himself.

It was the Division Bench of Apex Court comprising RV Raveendran and B. Sudershan Reddy, JJ which while dealing with a case of Partition titled ‘Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna & Ors.’ 2 not only emphasised on the rigmarole that a Decree Holder has to go-through in the face of Execution proceedings even after having obtained an order in his favour but also urged the Parliament and Law Commission to take appropriate steps in the direction of making the suit proceedings to be a continuous process from the stage of initiation to the stage of securing actual relief. It is relevant to note the observations of the Hon’ble Court in Para 11, 12 and 13 which are as follows:

11. The century old civil procedure contemplates judgments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a ‘pause’ between a decree and execution. A 'pause' has also developed by practice between a preliminary decree and a final decree. The ‘pause’ is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defendants normally do not comply with decrees without the pursuance of an execution. In very few cases, the defendants in a partition suit, voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits, pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage that is levy of execution, or applications for final decree followed by levy of execution in almost all cases.

12. A litigant coming to court seeking relief is not interested in receiving a paper decree, when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The common-sensical query is: why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the court does not forthwith fix a date for appointment of a Commissioner for division and make a final decree and deliver actual possession of his separated share. Why is it necessary for him to remind the court and approach the court at different stages?

13. Because of the artificial division of suits into preliminary decree proceedings, final decree proceedings and execution proceedings, many Trial judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases, rather than ensuring that the litigant gets the relief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which the party approaches the court. Even among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their juniors to conduct the final decree proceedings and then give it to their clerks for conducting the execution proceedings. Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. Courts and Lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits.

Finally in Para 14, the court urged the Parliament and Law Commission of India to make necessary recommendations in the law itself in the following words:

14. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant. We hope that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief. The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. If there is a practice of assigning separate numbers for final decree proceedings that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief. In money suits and other suits requiring a single decree, the process of suit should be a continuous process consisting of the first stage relating to determination of liability and then the second stage of execution and recovery, without any pause or stop or need for the plaintiff to initiate a separate proceedings for execution. In suits for partition and other suits involving declaration of the right and ascertainment/quantification of the relief, the process of the suit should be continuous, consisting of the first stage of determination and declaration of the right, second stage of ascertainment/ division/ quantification, and the third stage of execution to give actual relief.

But as on today even after passing of around 15 years, the suggestion of the Hon’ble Apex Court has not seen the light of day either in reports of Law Commission of India or that of Parliament of India.

This inaction of the institutions also led a full bench of the Hon’ble Apex Court to exercise its powers under Article 142 read with Article 141 and 144 of The Constitution of India to lay down certain guidelines while dealing with the case titled ‘Rahul S Shah Vs. Jinendra Kumar Gandhi3’ to ensure that the execution proceedings are disposed of in a time bound manner and expeditiously across the country. Few notable guidelines that can be extracted from this judgment are as follows:

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.

42.8.  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.

42. 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.

Similarly, concerned by the routine sine die adjournments by the trial courts after drawing up of Preliminary Decree in Partition Suits, a Division Bench of the Hon’ble Apex Court in the case titled ‘Kattukandi Edathil Krishnan & Anr. Vs. Kattukandi Edathil Valsan& Ors.4 ’after noting down the ratio of Shub Karan Bubna(supra) relating to the harassments meted out to Decree-Holders despite obtaining the decree directed thus:

33. We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn.

Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

Recently, another Division Bench of the Hon’ble Apex Court echoed similar sentiments in the case of Pradeep Mehra Vs. Harijivan J. Jethwa5 when it noted:

6. The reality is that pure civil matters take a long time to be decided and regretfully it does not end with a decision as execution of decree is entirely a new phase in the long life of a civil litigation. The inordinate delay which is universally caused throughout India in the execution of a decree has been a cause of concern with tis court for several years.

Therefore, intermittent observations and interferences by the Apex Court as mentioned above in order to enable the law to actually serve the needy has provided sufficient justification for parliament to make necessary amendments in the Civil Procedure Code as well in the same manner in which it has done with respect to the criminal laws because the oft quoted maxim: ‘Justice delayed is justice denied’ is equally applicable to the civil proceedings as well more so when these proceedings also constitute an important source of revenue for the state in the face of court fees.

Impact beyond regular civil proceedings

It goes without saying that a large number of statutes in our country simply adopt the procedure adopted by civil courts(as envisaged by Order XXI of First Schedule read with Section 51 Civil Procedure Code, 1908) for ensuring compliance of their orders which again pushes a Decree-Holder in the whirlpool named ‘A separate Execution Proceeding’ which itself is against the object of expeditious disposal of their disputes,  limb on which these statutes stand like Section 28A Hindu Marriage Act,  1955,  Section 42 Delhi Rent Control Act, 1958 and Section 71 Consumer Protection Act, 2019 to name a few. In fact maintenance awarded under Criminal Procedure Code 1973(or Bhartiya Nagarik Suraksha Sanhita, 2023) and Domestic violence Act also lose its meaning when the same needs to be enforced through this route.

Magnifying impact on judicial docket

If ratio and suggestions laid down by the aforesaid judgments are anything to go by then it becomes a moot point of discussion to ascertain whether the execution proceedings in all suits are part of the original proceedings because in any case an executing court cannot go beyond the decree or they form separate proceedings altogether? because if they are part of the original proceedings then the  ever inflating judicial docket might be considered an unduly magnified data which is not presenting the true picture as it also considers execution proceedings as separate proceedings.

 Conclusion

In view of our aforesaid discussion it may be concluded that if the recent (November, 2023) observation of Hon’ble Chief Justice of India that is: Supreme Court cannot be reduced to a Tarikh pe Tarikh Court, is to be paid obeisance to then it has to start from the Trial Courts which is possible either by:

a)      Empowering the courts sufficiently enough so that they can execute their own orders in all proceedings without insisting for moving separate execution proceedings like the power under Order XXI Rule 11 where a decree can be executed at the oral request at the time of passing of decree itself or;

b)      In alternative, by introducing a provision in the statute-book which mandates stringent penal consequence against the judgment debtor who only waits for filing of execution proceedings to comply with the decree after the lapse of certain time period as determined by the court in decree, provided that no stay is in operation against the decree sought to be enforced in such case.  

1.       (1871-72) 14 Moore’s I.A 605

2.       (2009) 9 SCC 689

3.       (2021) 6 SCC 418

4.       2022 SCC OnLine SC 737 

5. 2023 INSC 958