"Terrifying, Perverse Order": Himachal Pradesh HC Raps Trial Judge For Ordering Coercive Action Against Judgement Debtor Without Prior Notice

Justice Tarlok Singh Chauhan, addressing the petitioner's grievance and expressing his disapproval of the order, stated,

“It is not only shocking but appalling to note the manner in which learned Senior Civil Judge, has dealt with execution petition by not even caring and bothering to issue notice to the judgment debtor and straightway directed the decree holder to take coercive steps.”

"Even the excuse of everyday rush and hurry of court business or an oversight cannot save such a perverse order. No Judge ought to have passed such a terrifying order, the judicial impropriety of which disturbs the conscience of this court. It brings the judicial process to infamy in public and the Bar if it were made extensively viral, which would shake the confidence of the people in the institution which dispenses justice as the guardian of law and to which they look upon as their saviour," it added.

The case involved a financial dispute where the petitioner was ordered to pay a decretal amount to the respondent. On July 4, 2023, the Senior Civil Judge of Kinnaur issued an execution order directing coercive measures to recover the amount without issuing a prior notice to the judgment debtor.

This procedural lapse prompted the petitioner to seek intervention from the Himachal Pradesh High Court, challenging the legality of the order and emphasizing the failure to follow mandatory legal procedures.

The High Court, upon reviewing the case, found the said order to be alarming and directed the Senior Civil Judge to provide a detailed explanation regarding the legal basis for bypassing the issuance of a notice to the judgment debtor.

In his defence, the Senior Civil Judge had cited precedents from the Hon'ble Apex Court in Shub Karan Prasad Bubna vs Sita Saran Bubna 2009, Rahul S. Shah Vs. Jitender Kumar Gandhi (2021), and Pradeep Mehra Vs. Harijivan J. Jethwa 2023 which emphasise the necessity for executing courts to exhaust remedies and bring execution petitions to a logical conclusion within six months.

The Judge justified his actions by asserting the need for brevity and efficiency due to an overwhelming caseload and limited resources.

Justice Chauhan, however, underscored that expediency cannot come at the expense of legal mandates. He clarified that Section 51 of the Code of Civil Procedure, read with Order 21, mandates the issuance of a show-cause notice to the judgment debtor before any coercive measures are taken.

He noted, “Undoubtedly, there has to be an expeditious disposal of the execution petition, but, as observed above, the mandatory provisions of law cannot be overlooked or thrown to the winds.”

Justice Chauhan explained that bypassing the required procedural steps deprived the judgment debtor of the opportunity to be heard and defend against the execution proceedings, thereby undermining the principles of natural justice and due process that are integral to safeguarding individual freedoms.

He remarked, “For a Judge to pass such a wanton order ignorant of the rudimentary principles of law is not only highly improper but also in violation of the fundamental rights conferred by Article 21 of the Constitution of India, which seeks to tenaciously protect an individual's liberty.”

The Court stayed further proceedings in the execution petition, subject to the petitioner's compliance with depositing the entire decretal amount.

Case Title: Surjan Singh vs. Jawahar Lal

Citation: 2024 LiveLaw (HP) 35

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