Decree-Holder Faces Same Problem In Execution As In 19th Century;Difficulties Of Litigant Begin After Obtaining Decree : Supreme Court

In a recent judgment, the Supreme Court had occasion to comment about the problems faced by litigants in execution of a decree.

A bench comprising Justice Ajay Rastogi and AS Oka was dealing with a case in which the issue was whether the Delhi High Court, in its original civil jurisdiction, was competent to execute a foreign decree under Section 44A of the Civil Procedure Code.

At the start of the judgment, the Supreme Court recalled a 19th century saying that the real difficulties of a litigant begin after obtaining the decree and the same situation as in 19th century persist even after a century now.

"It is an old saying that the difficulties of the litigant in India begin when he has obtained a decree. The evil was noticed as far back in 1872 by the Privy Council in relation to the difficulties faced by the decree-holder in execution of the decree. After more than a century, there has been no improvement and still the decree holder faces the same problem what was being faced in the past," the Supreme Court said.

The judgment authored by Justice Rastogi further stated :

"A litigant coming to Court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he primarily wants from the Court of Justice is the relief and if it is a money decree, he wants that money what he is entitled for in terms of the decree, must be satisfied by the judgment debtor at the earliest possible without fail keeping in view the reasonable restrictions/rights which are available to the judgment debtor under the provisions of the statute or the code, as the case may be".

The Court commented that the instant case is a "live illustration" of the situation as the decree holder was able to get a money decree of a foreign Court which is notified as a superior Court of a reciprocating territory way back on 7th February, 2006 and after 16 years have been rolled by, still the "screen is smokey and not clear as to which is the forum where he could approach for execution of a decree".

A division bench of the Delhi High Court had held that it was not competent to execute the foreign decree under Section 44A as a court of original civil jurisdiction. On analysis of the legal provisions, the Supreme Court overruled this view and held that the High Court having original jurisdiction is competent to execute the foreign decree under Section 44A CPC provided the pecuniary jurisdiction is met. Detailed report on that analysis may be read here.

In another judgment delivered a few months ago, the Supreme Court had lamented the difficulties in execution of a decree. Astonished at the five rounds of litigation initiated by a litigant(and his successors) over five decades to stall the execution of a civil decree, the Supreme Court remarked in that case that it was a fit case to be included in the law school syllabus as a study material for students to get equipped with various provisions of the Civil Procedure Code relating to execution.

"...the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution", the judgment delivered by a bench comprising Justices Hemant Gupta and V Ramasubramanian observed(Dipali Biswas and others versus Nirmalendu Mukherjee and others)