26 July 2021
Matter: Rahul S Shah v. Jinendra Kumar Gandhi and Ors.
Order dated: 22 April 2021.
Summary:
The appeals filed before the SC arise out of a common judgment and order of the Karnataka HC dismissing several writ petitions. The said matter pertains to a suit relating to a property whereby the execution of the decree was obstructed by the judgment debtors by filing appeals, criminal proceedings, and objections.
The SC taking note of the difficulties faced by the judgment creditors in executing decrees issued directions that are required to be followed by all executing courts so that the execution of decrees can be carried out expeditiously. Some of the main directions issued by the SC are mentioned below:
(a) The trial court, in suits relating to delivery of possession, is required to examine the parties to the suit in relation to third party interest and exercise the power under the Civil Procedure Code, 1908 (“CPC”) asking parties to disclose and produce documents, upon oath.
(b) The court may appoint commissioner to assess the accurate description and status of the property where possession is not disputed.
(c) After examination of parties or production of documents under the relevant provisions of CPC or receipt of commission report, the court is required to add all necessary or proper parties to the suit to avoid multiplicity of proceedings.
(d) A court receiver may be appointed as per the provisions of the CPC to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
(e) The court before passing the decree pertaining to delivery of possession of a property is required to ensure that the decree is unambiguous regarding description and status.
(f) The court, in a money suit, is required to invariably resort to ensuring immediate execution of decree for payment of money on oral application.
(g) In a money suit, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent he is being made liable in a suit.
(h) The court may, at any stage, using powers under CPC, demand security to ensure satisfaction of any decree.
(i) The execution court must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the court should refrain from entertaining applications already considered by the court while adjudicating the suit.
(j) 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.
(k) Courts must award costs and even arrest in cases of frivolous or malafide. Police assistance may be called to for such officials who are working towards execution of the decree.
(l) The executing court may direct the concerned police station to provide police assistance to such officials who are working towards execution of the decree.
For further information, please contact:
Souvik Ganguly, Partner, Acuity Law
al@acuitylaw.co.in
