IMPORTANT POINTS
(1) Inordinate delay in execution of decree - Pure civil matters take a long time to be decided and it does not end with a decision, as execution of a decree is an entirely new phase in long life of a civil litigation - Executing court can never go behind decree.
(2) Res Judicata - Principles of res judicata are not only applicable in respect of separate proceedings but general principles of res judicata are also applicable at subsequent stage of same proceedings.

JUDGMENT :

SUDHANSHU DHULIA, J.

1. This appeal before us shows how the execution proceedings under Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’), are being delayed, and the process is being abused in the execution proceedings, to the peril of the helpless decree holder.

As long back as in 1872 (when the CPC of 1859 was in operation), it was observed by the Privy Council that, “the difficulties of a litigant in India begin when he has obtained a decree¹[Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC OnLine PC 16 : (1871-72) 14 Moo IA 605 at page 612]”. The situation, we are afraid, is no better even today.

2. The appellant is the landlord and the respondents are the tenants in a premises measuring about 3240 sq. ft. bearing C.T.S. No(s). 691/2, 691/3, 691/6, 691/7 and 691/8, situated at Mehra Industrial Compound, Andheri-Kurla Road, Sakinaka, Mumbai (hereinafter referred to as ‘suit property’). We will also be referring to them as the decree holder and the judgment debtors respectively.

The landlord, who is more than 70 years of age as of now, had filed a suit for eviction which ultimately resulted in a consent decree on 11.06.2005 where inter alia, it was stipulated that in case the judgment debtors (i.e., tenants) fail to pay the rent for two consecutive months, they could be evicted as the decree would become liable for execution.

3. The tenants evidently committed a default in payment of rent, and on an application moved by the decree holder, the court vide its order dated 12.02.2013 allowed the application holding that the decree holder/appellant is entitled to execute the decree. Meanwhile, for one reason or another, the proceedings before the executing court were delayed and then the respondents/judgment debtors moved an application before the “executing court” on 19.01.2017 challenging the order dated 12.02.2013 by which the court had allowed the execution of the decree. This as we can see was done nearly four years after the order dated 12.02.2013.

The maintainability of this application was challenged by the appellant/landlord. The executing court vide its order dated 28.09.2017 allowed the objections of the appellant and held that under the garb of the provisions of Section 47 CPC, the respondents/judgment debtors were actually challenging the order of the court dated 12.02.2013, which had allowed the execution of the decree; and which had attained finality.

The order dated 28.09.2017 was challenged by the respondents in revision, where it was set aside by an order dated 22.12.2017. The landlord’s writ petition before the Bombay High Court against the above order was dismissed vide the impugned order dated 08.01.2021, and this is how the decree holder is now before us.

The appellate court and the High Court (in exercise of its powers under Article 227 of the Constitution of India), have held that under Section 47 of the CPC, the executing court can decide the matter as to whether the decree can be executed or not.

4. Section 47 of the CPC reads as under:

Section 47. Questions to be determined by the Court executing decree.

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

* * * * *

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Explanation 1.--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.--(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possessi