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TMI Blog2021 (4) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... background for the next stage of the proceedings, i.e. execution. Execution proceedings are now being subsisting for over 14 years. In the meanwhile, numerous applications including criminal proceedings questioning the very same documents that was the subject matter of the suit were initiated. In between the portion of the property that had been acquired became the subject matter of land acquisition proceedings and disbursement of the compensation. This Court has repeatedly observed that remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees. This was discussed even in the year 1872 by the Privy Counsel in The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing [ 1872 (3) TMI 2 - PRIVY COUNCIL ] which observed that the actual difficulties of a litigant in India begin when he has obtained a decree. Thus, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two Respondents, Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi became absolute owners of the suit property with the totally admeasuring of 3871 square yards. Thus, Narayanamma had sold about 34,839 square feet of the property out of 1 Acre land (43,860 square feet) owned by her. Subsequently, after the sale of the major portion of the said property to the first two Respondents and their brother, Narayanamma who is the mother of A. Ramachandra Reddy the fourth Respondent (hereafter called the vendors ) filed a suit O.S. No. 986/1987 for declaration that the two sale deeds in favour of the first two Respondents (also called purchasers or decree-holders ) as well as against Shri Moolendra Kumar Gandhi etc. were void. The vendors and Shri Anjan Reddy (deceased Respondent No. 8) on 25.03.1991 executed a registered partition deed. This document did not advert to the sale deed executed in favour of the purchasers and Shri Moolendra Kumar Gandhi and Smt. Baby Kumari Gandhi. The purchasers were restrained by an injunction from entering the property which Narayanamma claimed was hers. 4. During the pendency of the suit for declaration, the first purchasers filed two suits O.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents No. 4 to 7. By an order Dated 10.04.208 the High Court directed the vendors to furnish particulars with respect to the sale, names of the purchaser and area sold etc. By common judgment dated 22.10.2009 the High Court dismissed all the appeals pending before it. The Special Leave Petition preferred by the vendors S.L.P. (C) Nos. 16349-13651/2010 was also dismissed by this Court on 23.07.2010. 7. Apparently, during the pendency of execution proceedings before the trial Court the vendors again sold the properties in favour of Shri P. Prem Chand, Shir Parasmal, Shri Kethan S. Shah and Ors. and Shri Gopilal Ladha Shri Vinay Maheshwari by separate sale deeds Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004 . This was brought to the notice of the High Court which had dismissed the appeal preferred by the vendors. 8. During the pendency of the proceedings before the High Court Narayanamma, the Appellant and Respondents No. 4 to 7 filed indemnity bonds claiming that there was no dispute with respect to the suit property and claimed the compensation in respect of portions that were acquired. These were brought to the notice of the High Court which passed an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner and directed him to visit the spot and survey and fix the boundaries of decretal property. Recall of these orders was sought by the judgment debtors; they also sought for reference to forensic examination by a Handwriting Expert of the sale documents. These two review applications were dismissed; and on 13.06.2017 the Executing Court declined the application for forensic examination of documents and also rejected the obstructers' resistance to execution. 12. All these orders led to initiation of five writ petitions on behalf of the Appellant, and the vendors etc. Three First appeals R.F.A. Nos. 441, 468 and 469/2017 were preferred by obstructers challenging the decision of the Executing Court dated 15.02.2017. By impugned common order all these Writ Petitions and appeals were dismissed. 13. It is argued by Mr. Shailesh Madiyal on behalf of the Appellant (Rahul Shah) that the impugned order has the effect of diluting the order of the Executing Court dated 23.04.2010 with respect to survey of the entire property. It was pointed out by the counsel for the Appellant that there were disputes with respect to boundaries and identity of the properties as between parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty three times over-at least two times after the decree holders purchased their portions of the property and during the pendency of the suits filed by them. The judgment debtors had sought a declaration that the sale deeds executed in favour of the decree holders were not genuine and lost. Thereafter, the judgment debtor and some of the obstructers succeeded in collecting compensation in respect of the portion of the property that had been acquired. Ultimately, those amounts had to be disbursed by the Court orders. The judgment debtors/vendor even sought forensic examination and initiated the criminal proceedings that were quashed by the High Court. The High Court took note of all these circumstances and passed a just order, requiring the appointment of a Court Commissioner to identify and measure the properties. While doing so the Executing Court has been asked to take into consideration all the materials on record including the reports submitted by the previous Court Commissioner Mr. Venkatesh Dalwai. Discussion and conclusions: 18. It is quite evident from the above discussion that the vendor and her son (judgment debtors) after executing the sale deed in respect of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties concerned, that emerge victorious in the Execution Petitions; (d) the JDrs shall jointly pay to the DHrs collectively an exemplary cost of Rs. 5,00,000/- (Rupees five lakh) only in each of the Execution Petitions within a period of eight weeks, regardless of the outcome of the said petitions; and, if, the same is not accordingly paid, they run the risk of being excluded from participation in the Execution Proceedings, in the discretion of the learned judge of the Court below; and, (e) the entire exercise including the disposal of the Execution Petitions shall be accomplished within an outer limit of six months, and the compliance of such accomplishment shall be reported to the Registrar General of this Court. No costs qua obstructers. Sd/- JUDGE 20. The contentions of the Special Leave Petition mainly centre around one or the other previous orders of the Executing Court with regard identification of the property and boundary etc and the subjecting documents to forensic examination. As is evident from the reading of the final order, the High Court has adopted a fair approach requiring the Executing Court to appoint a Court Commissioner to verify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sused to cause injustice, by preventing a timely implementation of orders and execution of decrees. This was discussed even in the year 1872 by the Privy Counsel in The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing (1871-72) 14 Moore's I.A. 605 which observed that the actual difficulties of a litigant in India begin when he has obtained a decree. This Court made a similar observation in Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna (2009) 9 SCC 689, wherein it recommended that the Law Commission and the Parliament should bestow their attention to provisions that enable frustrating successful execution. The Court opined that the Law Commission or the Parliament must give effect to appropriate recommendations to ensure such amendments in the Code of Civil Procedure, 1908, governing the adjudication of a suit, so as to ensure that the process of adjudication of a suit be continuous from the stage of initiation to the stage of securing relief after execution proceedings. The execution proceedings which are supposed to be handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go. 28. Order I Rule 10(2) empowers the Court to add any party who ought to have been joined, whether as a Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. Further, Order XXII Rule 10 provides that in cases of assignment, creation or devolution of any interest during the pendency of the suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come to be devolved. 29. While Code of Civil Procedure Under Rules 30 to 36 of Order XXI provides for execution of various decrees, the modes of execution are common for all. Section 51 of Code of Civil Procedure lists the methods of execution as by delivery of property; by attachment and sale; by arrest and detention in civil prison; by appointing a receiver or in any other manner as the nature of relief granted may require. Moreover, Order XL Rule 1 contemplates the appointment of the Receiver by the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination. 34. However, Under Order XXI Rule 99 it is a slightly better position, wherein a person, other than the judgment debtor, when is dispossessed of immoveable property by the decree holder for possession of such property, files an application with objections. Such objections also lead to re-trial, but as the objector is already dispossessed, the execution of the decree is more probable and expeditious. In Order XXI Rule 97 the obstructionist comes up with various objections that ideally should have been raised at the time of adjudication of suit. Such obstructions for execution could be avoided if a Court Commissioner is appointed at the proper time. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner or an application made in that regard, the Court may proceed to add necessary or proper parties Under Order I Rule 10. The Court may permit objectors or claimants upon joining as a party in exercise of power Under Order I Rule 10, make a joinder order Under Order II Rule 3, permitting such parties to file a written statement along with documents and lists of witnesses and proceed with the suit. 39. If the above suggested recourse is taken and subsequently if an objection is received in respect of suit property Under Order XXI Rule 97 or Rule 99 of Code of Civil Procedure at the stage of execution of the decree, the Executing Court shall deal with it after taking into account the fact that no such objection or claim was received during the pendency of the suit, especially in view of the public notice issued during trial. Such claims Under Order XXI Rule 97 or Rule 99 must be dealt strictly and be considered/entertained rarely. 40. In Ghan Shyam Das Gupta v. Anant Kumar Sinha AIR 1991 SC 2251, this Court had observed that the provisions of the Code as regards execution are of superior judicial quality than what is generally available under the other statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion as custodia legis for proper adjudication of the matter. 6. The Court must, before passing the decree, pertaining to 7. 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. 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. 9. 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 Code of Civil Procedure, demand security to ensure satisfaction of any decree. 10. The Court exercising jurisdiction Under Section 47 or Under Order XXI of Code of Civil Procedure, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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