Execution Petitions Must Be Disposed Of Within Six Months ; Courts Must Record Reasons If Unable To : Supreme Court

The Supreme Court reiterated that the execution petitions must be disposed within six months from the date of filing.

The Execution Court is duty bound to record reasons in writing when it is unable to dispose of the matter, the bench of Justices KM Joseph and Hrishikesh Roy said.

In this case, the decree holder approached the Punjab and Haryana High Court challenging an order of the executing court that dismissed his application for pre-ponement/early hearing of his execution petition which was filed on 20.03.2019. As the High Court refused to interfere in the matter, he approached the Apex Court in appeal essentially contending that the Execution Court is not abiding by the directions issued in the decision in Rahul S. Shah Vs. Jinendra Kumar Gandhi (2021) 6 SCC 418.

In Rahul S. Shah, a three judges bench of the Apex Court had issued a direction that Executing Courts 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. 

"This means that it becomes the duty of the Execution Court to dispose of the execution proceedings at the earliest and since this Court has directed that the Execution Court must dispose of the execution proceedings within six months from the date of filing, which can be extended only by recording reasons in writing for such delay, this direction is meant to be observed. This would mean that every effort should be made to dispose of the execution petition within the said time limit and the Execution Court should have reasons for not being able to dispose of the execution petition. The Execution Court is duty bound to record reasons in writing when it is unable to dispose of the matter. We need only reiterate what this court has already ordered.", the Apex Court bench observed while disposing the Special Leave Petition.

Rahul S. Shah Judgment

1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.
   
2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.
   
3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.
4. 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.
   
5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.
6. 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.
7. 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 further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.
8. 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. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.
9. 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 like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
10. The Court must in appropriate cases where it finds the objection or resistance or 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.
11. 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.
12. 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.
13. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.
14. The 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.

Case details

Bhoj Raj Garg vs Goyal Educational And Welfare Society | 2022 LiveLaw (SC) 976 | SLP(C) 19654/2022 | 18 Nov 2022 | Justices KM Joseph and Hrishikesh Roy

Headnotes

Code of Civil Procedure, 1908 ; Order XXI - Execution Proceedings - Execution Court must dispose of the execution proceedings within six months from the date of filing - It is duty bound to record reasons in writing when it is unable to dispose of the matter - Direction issued in Rahul S. Shah Vs. Jinendra Kumar Gandhi (2021) 6 SCC 418 is meant to be observed. 

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