Business Laws

The emerging jurisprudence for quicker execution of decrees

Harshvardhan Korada |Vasanth Rajasekaran | | Updated on: Apr 17, 2022

Most often, the decree holder is left running pillar to post to enjoy the fruits of ‘success’, defeating the very purpose of the rigorous litigation the parties engaged in to bring their disputes to closure

The execution of decrees is the last leg of the arduous journey that a litigant is put through to obtain the desired relief from the court. However, owing to various factors including the inadequacy of judicial infrastructure, high pendency of cases and the dilatory tactics adopted by the judgment debtors, obtaining a decree in favour of oneself has only proven to be half the battle. 

More often than not, the decree holder is left running from pillar to post to enjoy the fruits of “success”, defeating the very purpose of the rigorous litigation that the parties engaged in to bring their disputes to closure. In 2021, there were a reported total of 14,19,298 execution petitions pending at the lower courts. The alarming figure highlights the need for introducing immediate remedial measures to reduce the delay in disposal of execution petitions. 

In a recent decision in Griesheim GmbH v. Goyal MG Gases Pvt Ltd., the Supreme Court referred to an old saying that “the difficulties of a litigant in India begin when he has obtained a decree”. The evil of the unwarranted delays that a decree holder is put through was noticed far back in 1872 by the Privy Council in Raj Durbhunga v. Coomar Ramaput Sing. The Apex Court made similar observations in subsequent decision of Shub Karan Bubna v. Sita Saran Bubna, wherein it was recommended that the Law Commission and the Parliament of India must bestow their attention to make appropriate amendments to the Code of Civil Procedure, 1908 (CPC).

However, even after more than 150 years having passed since the Privy Council decision, there isn’t much of improvement as the decree holders continue to face the same problems. 

In terms of execution of a decree, Section 47 of the CPC sets out a limited jurisdiction available to the executing courts i.e., for either the discharge or the satisfaction of a decree. In essence, Section 47 is intended to prevent multiplicity in the proceedings and dispose of all objections in an expeditious manner. An executing court while dealing with a decree is required to not traverse beyond the decree and look into matters of extraneous nature. Nonetheless, there has been a steady rise in proceedings which are fundamentally akin to conducting a retrial at the time of execution leading to the failure of realisation of the decree. The Apex Court in Rahul S. Shah Vs Jinendra Kumar Gandhi noted that in its experience, it was witnessed that various objections were filed before the executing court to prevent the decree holder from having any meaningful relief after what was already a long-fought litigation battle. 

In the subordinate courts of India, it is invariably a standard practice on part of the executing court to issue a show-cause notice asking the judgment-debtor as to why the decree should not be executed as given under Order 21 Rule 22 of the CPC. This is wrongly viewed as an opportunity by the judgment debtors to have a backdoor entry into a fresh trial after having lost the legal battle once. Thus, the provision is misused widely by judgment debtors dragging the execution proceedings indefinitely.

The Supreme Court in Rahul S. Shah opined that such attempts of reviving the trial at the time of execution are the antithesis to the scheme of CPC which stipulates that all issues in a civil suit must be dealt with in the same trial. The Apex Court also observed that the court must play an active role in limiting the controversies by deciding upon all related issues to the subject-matter during adjudication of the suit itself and ensure that a clear, unambiguous, and executable decree is passed in a suit. 

It appears that the problem of delays faced in execution of decrees does not totally lie in the manner in which the provisions of the CPC have been framed. In Ghan Shyam Das Gupta v. Anant Kumar Sinha, the Supreme Court had observed that the provisions of CPC were of superior judicial quality than what is typically available under other statutes to judges. Thus, with a pragmatic approach and careful judicial interpretation, a court can prevent the judgment-debtor or any other person from raising a frivolous claim which may potentially delay the execution of decree.  

For instance, in money claim suits, a court is empowered under Section 151 of the CPC to direct the defendant to provide security prior to progressing in the suit. The consequences of non-compliance of any of these directions is provided under Order 17 Rule 3 of the CPC. 

In the matter of Rahul S. Shah, the Supreme Court while taking note of the inordinate delays faced by the decree holders in execution of the decrees, issued some directions in exercise of powers vested under Article 141 read with Articles 142 and 144 of the Constitution of India. The Apex Court specifically provided that the directions passed by it are to be mandatorily followed by all civil courts of India. Amongst other things, the Apex Court passed directions which required the executing courts to take evidence in enforcement proceedings only in exceptional and rare cases.  

Further in appropriate cases, where it is found that a claim is mala fide, the executing courts could resort to Order 21 Rule 98 of the CPC and also impose costs in accordance with Section 35A of the CPC on such frivolous claims or objections. 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 requisite support towards execution of the decree. Most importantly, the Apex Court directed the executing courts to dispose of the execution proceedings within six months from the date of filing which may only be extended by reasons recorded in writing. 

As observed by the Apex Court, a litigant who has gone through a long legal battle would certainly not be interested in receiving a mere paper decree. The directions passed by the Supreme Court in Rahul S. Shah would certainly narrow down the scope of unwarranted interference in the execution process. However, it is important to recollect the fact that the problems faced by litigants, and more specifically decree-holders are also aggravated on account of lack of the requisite judicial infrastructure and rising pendency of matters in the courts of India. There is a need to rethink the functioning of the judicial system in a holistic manner. An immediate step in this direction would be to encourage parties to adopt the right mindset and resort to alternative methods of dispute resolution and resolve the issues privately.  

Recently, the Chief Justice of India opined that an active effort must be taken by courts to make negotiation and mediation a mandatory exercise as a part of case management. In matters which can be resolved through joint discussions and negotiations, the parties should aim to first exhaust the avenue of settling their disputes by mediation. This would prevent the judicial system from being burdened further while allowing the pending matters to be disposed of more efficiently. 

(The authors are advocates at Phoenix Legal, a law firm) 

Published on April 17, 2022
COMMENTS
This article is closed for comments.
Please Email the Editor

You May Also Like

Recommended for you