PRADEEP MEHRAversusHARIJIVAN J. JETHWA (SINCE DECEASED THR. LRS.) & ORS.

                 [2023] 14 S.C.R. 123 : 2023 INSC 958



                            CASE DETAILS

                          PRADEEP MEHRA
                                     v.
HARIJIVAN J. JETHWA (SINCE DECEASED THR. LRS.) & ORS.
                     (Civil Appeal No. 6375 of 2023)
                          OCTOBER 30, 2023
  [SANJAY KISHAN KAUL AND SUDHANSHU DHULIA, JJ.]

                             HEADNOTES

      Issue for consideration: Matter pertains to the delay being caused to
the execution proceedings u/ord. XXI CPC, and the process being abused
in the execution proceedings, to the peril of the decree holder.
     Code of Civil Procedure, 1908 – s. 47 – Questions to be determined
by the court executing decree – Scope and ambit of:
      Held: All questions between the parties can be decided by the
executing court – These questions are limited to the execution of the
decree – Executing court can never go behind the decree – Under s. 47 the
executing court cannot examine the validity of the order of the court which
had allowed the execution of the decree unless the court’s order is itself
without jurisdiction – Appellate court, the second appellate court and the
revisional court do not have the same powers, as the powers of the executing
court, which are extremely limited. [Para 5]
     Code of Civil Procedure, 1908 – s. 47 – Execution of decree – Four
years after the pronouncement of the order of execution of decree which
had attained finality, the judgment debtors filed an application before
the executing court challenging the execution of decree – Decree holder
challenged the maintainability of the application and the same was
allowed – In revision, the said order was set aside – Decree holder then
filed a writ petition on the ground that the revisional court erred in
holding that the application moved by the judgment debtors for setting
aside the order of execution comes within the purview of the power of
the executing court u/s 47; and that the said order attained finality and
                                   123
124          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


res judicata would apply against the judgment debtors – Dismissed by
the High Court – Correctness:
      Held: Executing court rightly allowed the objections of the decree
holder and dismissed the application filed by the judgement debtors – An
execution proceeding works in different stages and if the judgment debtors
have failed to take an objection and have allowed the preliminary stage to
come to an end and the matter has moved to the next stage, the judgment
debtors cannot raise the objection subsequently, and revert back to an earlier
stage of the proceeding – Executing court gave the said reasons in its order
– Merely, because it did not specifically refer to the principle of res judicata
would not make any difference – High Court though found substance in the
arguments of res judicata, nevertheless refused to interfere in the petition
– High Court erred by not interfering in the matter – Order passed by the
appellate court and by the High Court not sustainable thus, set aside while
the order of the executing court is upheld – Res judicata. [Para 8]
     Code of Civil Procedure, 1908 – s. 47 – Exercise of power under
– Execution of a decree – Inordinate delay and slow process in the
execution of a decree – Concern expressed by the Supreme Court
– Direction to the executing court to complete execution within six
months. [Para 6]
      Res judicata – Principles of - Applicability:
     Held: Principles of res judicata are not only applicable in respect
of separate proceedings but the general principles of res judicata are also
applicable at the subsequent stage of the same proceedings and thus, the
same court would be precluded to go into that question which has already
been decided, or deemed to have been decided by it in the earlier stage – It
would be barred by the principle of res judicata, or at least by the principle
of constructive res judicata. [Para 7]

       LIST OF CITATIONS AND OTHER REFERENCES.

      Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC
OnLine PC 16: (1871-72) 14 Moo IA 605; Dhurandhar Prasad Singh v. Jai
Prakash University and Others (2001) 6 SCC 534: [2001] 3 SCR 1129; Rahul
S. Shah v. Jinendra Kumar Gandhi and Others (2021) 6 SCC 418 – referred to.
    PRADEEP MEHRA v. HARIJIVAN J. JETHWA (SINCE                         125
              DECEASED THR. LRS.)

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6375 of 2023.
     From the Judgment and Order dated 08.01.2021 of the High Court of
Judicature at Bombay in WP No.8475 of 2018.
     Appearances:
    Sudhir Chandra, Sr. Adv., Bhagabati Prasad Padhy, Achintya Dvivedi,
Advs. for the Appellant.
      Vinay Navare, Sr. Adv., Kailash Pandey, Ranjeet Singh, Krishna Yadav,
J. K. Mishra, Gaichangpou Gangmei, Advs. for the respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              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 decree”1. 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 judgement
debtors respectively.



1   Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC OnLine PC 16
    : (1871-72) 14 Moo IA 605 at page 612
126          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      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
     PRADEEP MEHRA v. HARIJIVAN J. JETHWA (SINCE                          127
     DECEASED THR. LRS.) [SUDHANSHU DHULIA, J.]

     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 possession of such property
     to such purchaser or his representative shall be deemed to be questions
     relating to the execution, discharge or satisfaction of the decree within
     the meaning of this section.
     5. A bare perusal of the aforesaid provision shows that all questions
between the parties can be decided by the executing court. But the important
aspect to remember is that these questions are limited to the “execution of
the decree”. The executing court can never go behind the decree. Under
Section 47, CPC the executing court cannot examine the validity of the
order of the court which had allowed the execution of the decree in 2013,
unless the court’s order is itself without jurisdiction. More importantly this
order (the order dated 12.02.2013), was never challenged by the tenants/
judgment debtors before any forum.
      The multiple stages a civil suit invariably has to go through before
it reaches finality, is to ensure that any error in law is cured by the higher
court. The appellate court, the second appellate court and the revisional court
do not have the same powers, as the powers of the executing court, which
are extremely limited. This was explained by this Court in Dhurandhar
Prasad Singh v. Jai Prakash University and Others (2001) 6 SCC 534, in
para 24, it had stated thus:
128           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      “24. ………. The exercise of powers under Section 47 of the Code is
      microscopic and lies in a very narrow inspection hole. Thus, it is plain
      that executing court can allow objection under Section 47 of the Code
      to the executability of the decree if it is found that the same is void
      ab initio and a nullity, apart from the ground that the decree is not
      capable of execution under law either because the same was passed
      in ignorance of such a provision of law or the law was promulgated
      making a decree inexecutable after its passing.”
      This Court noted further:
      “………. The validity or otherwise of a decree may be challenged by
      filing a properly constituted suit or taking any other remedy available
      under law on the ground that the original defendant absented himself
      from the proceeding of the suit after appearance as he had no longer
      any interest in the subject of dispute or did not purposely take interest
      in the proceeding or colluded with the adversary or any other ground
      permissible under law.
      6. The reality is that pure civil matters take a long time to be decided,
and regretfully it does not end with a decision, as execution of a decree is
an entirely new phase in the long life of a civil litigation. The inordinate
delay, which is universally caused throughout India in the execution of a
decree, has been a cause of concern with this Court for several years. In
Rahul S. Shah v. Jinendra Kumar Gandhi and Others (2021) 6 SCC 418,
this Court had observed that a remedy which is provided for preventing
injustice (in the Civil Procedure Code) is in fact being misused to cause
injustice by preventing timely implementation of orders and execution of
decrees. Then, it had observed as under:
      “23. ……………. The execution proceedings which are supposed to be
      a handmaid of justice and subserve the cause of justice are, in effect,
      becoming tools which are being easily misused to obstruct justice.”
      The above judgment is an important judgment in respect of Section 47
as well as Order XXI, CPC as the three Judge Bench decision of this Court
not only condemned the abuse of process done in the garb of exercise of
powers under Section 47 read with Order XXI, CPC, but also gave certain
directions to be followed by all Civil Courts in their exercise of powers in
     PRADEEP MEHRA v. HARIJIVAN J. JETHWA (SINCE                           129
     DECEASED THR. LRS.) [SUDHANSHU DHULIA, J.]

the execution of a decree. It further directed all the High Courts to update
and amend their Rules relating to the execution of decrees so that the decrees
are executed in a timely manner. As far as Section 47 is concerned, this
Court had stated as under:
     “24. In respect of execution of a decree, Section 47 CPC contemplates
     adjudication of limited nature of issues relating to execution i.e.
     discharge or satisfaction of the decree and is aligned with the
     consequential provisions of Order 21 CPC. Section 47 is intended to
     prevent multiplicity of suits. It simply lays down the procedure and the
     form whereby the court reaches a decision. For the applicability of the
     section, two essential requisites have to be kept in mind. Firstly, the
     question must be the one arising between the parties and secondly, the
     dispute relates to the execution, discharge or satisfaction of the decree.
     Thus, the objective of Section 47 is to prevent unwanted litigation and
     dispose of all objections as expeditiously as possible.
     25. These provisions contemplate that for execution of decrees,
     executing court must not go beyond the decree. However, there is steady
     rise of proceedings akin to a retrial at the time of execution causing
     failure of realisation of fruits of decree and relief which the party seeks
     from the courts despite there being a decree in their favour. Experience
     has shown that various objections are 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.
     26. The general practice prevailing in the subordinate courts is that
     invariably in all execution applications, the courts first issue show-
     cause notice asking the judgment-debtor as to why the decree should
     not be executed as is given under Order 21 Rule 22 for certain class
     of cases. However, this is often misconstrued as the beginning of a
     new trial. For example, the judgment-debtor sometimes misuses the
     provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral
     plea, which invariably leaves no option with the court but to record
     oral evidence which may be frivolous. This drags the execution
     proceedings indefinitely.”
130          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


     This Court then gave certain directions, which were to be mandatorily
followed by all Courts dealing with civil suits and execution proceedings.
Two of its directions were as follows:
      “42…………….
      ………….
      ………….
      ………….
      42.8. The court exercising jurisdiction under Section 47 or under
      Order 21 CPC, 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 the suit
      or which raises any such issue which otherwise could have been
      raised and determined during adjudication of suit if due diligence
      was exercised by the applicant.
      ………..
      ……….
      42.12. The executing court must dispose of the execution proceedings
      within six months from the date of filing, which may be extended only
      by recording reasons in writing for such delay.
      42.13. ……..”
     It further directed all the High Courts to update their Rules relating to
execution of decrees. It was as under:
      “43. We further direct all the 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 CPC, within one year of the date of this order. The High Courts
      must ensure that the Rules are in consonance with CPC and the above
      directions, with an endeavour to expedite the process of execution with
      the use of information technology tools. Until such time these Rules are
      brought into existence, the above directions shall remain enforceable.”
     PRADEEP MEHRA v. HARIJIVAN J. JETHWA (SINCE                          131
     DECEASED THR. LRS.) [SUDHANSHU DHULIA, J.]

      We have referred to the above decision of this Court only to highlight
the slow process in the execution of a decree and the concern of this Court,
and its efforts in the past, to improve this situation.
      7. The respondents herein are the tenants in the suit property at least
since 1996. The present appellant is the landlord. The dispute between them
was of sub-letting which led to the eviction suit before the Small Causes
Court. During the proceedings, a settlement was arrived at between the
parties, inter alia stipulating that the tenants would be liable for eviction
if they commit a default of payment of rent for two successive months.
According to the appellant / landlord, the tenants committed a default
which led to the filing of the application under Order XXI Rule 11, CPC for
execution of the decree. The executing court vide its order dated 12.02.2013
held that the decree is liable to be executed. This order was admittedly never
challenged in appeal by the judgement debtor and has attained finality.
      On 19.01.2017, i.e., nearly four years later, the judgement debtors
moved an application before the executing court to set aside the order
dated 12.02.2013, reiterating their previous stand that the tenants had
never committed any default in payment of rent. Objection to the very
maintainability of such an application was raised by the decree holder, inter
alia on the grounds that the order dated 12.02.2013 has attained finality
and cannot be reopened. The executing court, to our mind, took the correct
decision in allowing the objections of the decree holder and dismissing the
application filed by the judgement debtors on the ground of maintainability.
The reasons given by the executing court are as follows:
     “8. Admittedly, the judgment debtor no. 1(a) to 1(e) and judgment
     debtor no. 2 have contended through their reply Exh. 20 that they
     are objecting to the execution of decree dated 11.06.2005 by way of
     application Exh. 18. It is also true that this Court being the Executing
     Court can consider the objections relating to the execution of decree
     under Section 47 of The Code of Civil Procedure, 1908. However,
     it is also settled principle of law that, this Court being a Executing
     Court cannot go behind the decree and has to execute the decree as it
     is. It needs to be mentioned at the cost of repetition that, already the
     Misc. Notice no. 152 of 2006 is decided by my learned predecessor
     by way of order dt. 12.02.2013. The said notice was contested by the
132           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      judgment debtor no. 1(a) to 1(e) and judgment debtor no. 2. It was held
      that the present decree holder is entitled to execute the decree against
      the judgment debtors. It needs to be mentioned that, the said order is
      not challenged by the judgment debtor no. 1(a) to 1(e) and judgment
      debtor no. 2 before the appropriate forum. If the said fact is taken into
      consideration, indeed there is considerable substance in the argument
      of the learned Advocate for the decree holder that, the said order dt.
      12.02.2013 has attained finality and now it is open to the judgment
      debtor no. 1(a) to 1(e) and judgment debtor no. 2 to agitate the same
      point again under the pretext of objection to the execution of decree.
      9. That apart, what is most important is that this Court is not sitting
      in appeal against its own order. Also, it is not the case of the judgment
      debtor no. 1(a) to 1(e) and judgment debtor no. 2, that the order dated
      12.02.2013 passed by my learned predecessor in Misc. Notice no. 152
      of 2006 was passed without jurisdiction. Also, the ground of fraud or
      ex-parte passing the order dt 12.02.2013 is not raised by the judgment
      debtor no. 1(a) to 1(e) and judgment debtor no. 2 in the application
      Exh. 18. The Misc. Notice No. 152 of 2006 was decided on merits
      after due hearing both sides and the said order is not challenged
      before the appropriate appellate/revisional forum. If the said fact is
      considered, there can be hardly any doubt that the application Exh.
      18 taken out by the judgment debtor no. 1(a) to 1(e) and judgment
      debtor no. 2 is nothing but an attempt to re-open the order passed on
      12.02.2013 in Misc. Notice no .152 of 2006 under the garb of objection
      to the execution of decree which is not permissible particularly when
      already the said notice is decided on merit and is not challenged till
      date. Considering the said fact, I have no hesitation to hold that, the
      application Exh. 18 is not maintainable.”
      As we have already referred above, this order was taken in revision by
the judgment debtors, where the revision was allowed and the order dated
28.09.2017 was set aside. The decree holder moved a petition before the
Bombay High Court under Article 226/227 of the Constitution of India and
the main ground taken before the High Court was that the revisional court fell
into an error in holding that the application moved by the judgment debtors
for setting aside the order dated 12.02.2013 comes within the purview of
     PRADEEP MEHRA v. HARIJIVAN J. JETHWA (SINCE                          133
     DECEASED THR. LRS.) [SUDHANSHU DHULIA, J.]

the power of the executing court given to it under Section 47 of the CPC.
It was submitted by the decree holder before the High Court that the order
dated 12.02.2013 had attained finality and res judicata would apply against
the judgment debtors. In support of the submission the decree holder relied
upon a decision of this court given in Barkat Ali &Anr. vs. Badrinarain (D)
by Lrs. 2008 (4) SCC 615, where this court reiterated the settled position
of law that the principles of res judicata are not only applicable in respect
of separate proceedings but the general principles of res judicata are also
applicable at the subsequent stage of the same proceedings and therefore
the same court will be precluded to go into that question which has already
been decided, or deemed to have been decided by it in the earlier stage. In
other words, it will be barred by the principle of res judicata, or at least by
the principle of constructive res judicata. The logic here is that an execution
proceeding works in different stages and if the judgment debtors have failed
to take an objection and have allowed the preliminary stage to come to an
end and the matter has moved to the next stage, the judgment debtors cannot
raise the objection subsequently, and revert back to an earlier stage of the
proceeding. This is exactly one of the reasons given by the executing court
in its order dated 28.09.2017 which we have already referred above. Merely,
because it has not specifically referred to the principle of res judicata will
not make any difference.
     The High Court even though found substance in the arguments of res
judicata, nevertheless refused to interfere in the petition.
     “9. The fact remains that when Exhibit-18 or Exhibit 19 was dealt
     with by the executing court, the issue of operation of principle of
     res judicata was not at all addressed by either of the parties and
     even the executing court so also Appellate Bench has no occasion to
     deal with the said issue. True it is the issue of question of law can be
     raised at any stage. However, that by itself will not call for exercising
     extraordinary jurisdiction in the present matter when aforesaid issue
     was not addressed before the courts below.
     10. In that view of the matter, in my opinion, Petition deserves to be
     disposed of with the observation that the issue of res judicata as is
     raised by the Petitioner be also looked into while dealing with the
     issue raised in Applications-Exhibits-18 and 19.”
134            SUPREME COURT REPORTS                     [2023] 14 S.C.R.


      8. The High Court, to our mind, committed an error by not interfering
in the matter. To our mind this case has unnecessarily been dragging on for
so long; which is for nearly two decades.
      The order dated 22.12.2017 by the Appellate Court and the order dated
08.01.2021 by the High Court are not sustainable in the eyes of law. We
therefore allow the appeal and set aside the order of the High Court dated
08.01.2021 and the order of the appellate court dated 22.12.2017, while we
uphold the order of the executing court dated 28.09.2017.
      The executing court is hereby directed to proceed with and complete
the execution as expeditiously as possible, but at any event within a period
of six months from the date a copy of this order is placed before the court.
The interim order dated 27.07.2021 hereby stands vacated.


Headnotes prepared by:                                         Appeal allowed.
Nidhi Jain