2021 Supreme(SC) 226

SUPREME COURT OF INDIA
S.A. BOBDE, CJI., L. NAGESWARA RAO, S. RAVINDRA BHAT, JJ.
Rahul S. Shah – Appellant
Versus
Jinendra Kumar Gandhi and Others – Respondents
Civil Appeal Nos. 1659-1660, 1661-1662, 1663-1664 of 2021, Special Leave to Appeal Nos. 7965-7966 of 2020, SLP (C) Nos. 11792-11793, 11859-11860 of 2020
Decided On : 22-04-2021

IMPORTANT POINTS
(1) To avoid controversies and multiple issues of a very vexed question emanating from the rights claimed by third parties, 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 in any suit
(2) Trial Court to determine what is the status of the property and when the possession is not disputed, who and in what part of the suit property is in possession other than the defendant

Headnote:

Civil Procedure Code, 1908 – S. 47, Order XXI Rule 97, Order XXI Rule 99 – Constitution of India, Article 142 read with Article 141 and Article 144 – Suit for declaration – Execution of Decree – Obstruction proceedings by third parties / other than judgment debtor –– Applicability of S. 47 of C.P.C. – Essential requisites – Applicability of S. 47 two essential requisites have to be kept in mind – Firstly, question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree – Thus, objective of S. 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible – Various objections filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to – To avoid controversies and multiple issues of a very vexed question emanating from rights claimed by third parties, Court must play an active role in deciding all such related issues to subject matter during adjudication of suit itself and ensure that a clear, unambiguous and executable decree is passed in any suit—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—Appeals dismissed. (Paras 24, 25, 35 and 42)

Facts of the case:

Vendor and her son (judgment debtors) after executing the sale-deed in respect of a major portion of the property, questioned the transaction by a suit for declaration – Decree holders also filed a suit for possession – During the pendency of these proceedings, two sets of sale-deeds were executed - Vendors’ suit was dismissed - the decree of dismissal was upheld at the stage of the High Court too – On the other hand, purchasers’ suit was decreed and became the subject matter of the appeal- High Court dismissed the first appeal; this Court dismissed the Special Leave Petition. This became the 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. That became the subject matter of writ and contempt proceedings. Various orders of the Executing Court passed from time to time, became the subject matter of writ petitions and appeals - six of them, in the High Court – All these were dealt with together and disposed of by the common impugned order

Findings of Court:

Anti-thesis to the scheme of Civil Procedure Code, which stipulates that in civil suit, all questions and issues that may arise, must be decided in one and the same trial. Order I and Order II which relate to Parties to Suits and Frame of Suits with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go – If the 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 CPC 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 –

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

High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC to ensure that the Rules are in consonance with CPC and directions, with an endeavour to expedite the process of execution with the use of Information Technology tools

Result: Appeals dismissed. Mandatory Directions issued.