RAHUL S SHAHversusJINENDRA KUMAR GANDHI & ORS.

                          [2021] 4 S.C.R. 279                            279


                         RAHUL S SHAH                                    A
                                  v.
             JINENDRA KUMAR GANDHI & ORS.
               (Civil Appeal Nos. 1659–1660 of 2021)
                           APRIL 22, 2021                                B
        [S.A. BOBDE, CJI, L. NAGESWARA RAO AND
                    S. RAVINDRA BHAT, JJ.]
       Constitution of India: Arts. 142, 141 and 144 – Delay in the
execution proceedings and abuse of process of execution court –
Frivolous attempts by unsuccessful litigants to putting up spurious      C
objections and setting up third parties, to object, delay and obstruct
the execution of a decree – Urgent need to reduce the delay – In
view thereof, to avoid controversies and multiple issues emanating
from the rights claimed by third parties, the Court must play an
active role in deciding all such related issues to the subject matter    D
during adjudication of the suit itself and ensure that a clear,
unambiguous, and executable decree is passed in any suit – Thus,
in larger public interest to subserve the process of justice, issuance
of few mandatory directions to all courts dealing with suits and
execution proceedings – Also issuance of directions to all the High
Courts to reconsider and update all rules relating to execution of       E
decrees, made under exercise of its powers u/Art. 227 and s. 122
CPC within stipulated period –Code of Civil Procedure, 1908 –
Ord, XXI r. 2, 11, 22, 30 to 36, 97, 98, 99, ss. 47, 51.
      The General Manager of the Raja Durbhunga v.
      Maharaja Coomar Ramaput Sing (1871–72) 14                          F
      Moore’s I. A. 605; Shub Karan Bubna @ Shub Karan
      Prasad Bubna v Sita Saran Bubna (2009) 9 SCC 689 :
      [2009] 14 SCR 40; Ghan Shyam Das Gupta v. Anant
      Kumar Sinha AIR 1991 SC 2251 : [1991] 1 Suppl. SCR
      119 – referred to.
                                                                         G
                       Case Law Reference
(1871–72) 14 Moore’s I.A. 605          referred to       Para 23
[2009] 14 SCR 40                       referred to       Para 23
[1991] 1 Suppl. SCR 119                referred to       Para 40         H
                                 279
280             SUPREME COURT REPORTS                             [2021] 4 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1659-
      1660 of 2021.
            From the Judgment and Order dated 16.01.2020 of the High Court
      of Karnataka, at Bengaluru in W.P. No.39296/2016 [GM-CPC] & W.P.
      No.39382/2016.
B            With
             Civil Appeal Nos.1661-1662 And 1663-1664 of 2021.
            Arunava Mukherjee, Shailesh Madiyal, Ms. Rakhi M., Paras Jain,
      T. Harish Kumar, Advs. for the appearing Parties.
C            The following Order of the court was passed :
                                        ORDER
             1. Leave granted.
             2. The present appeals arise out of the common judgment and
D     order dated 16th January, 2020 of the Karnataka High Court which
      dismissed several Writ Petitions. The course of the litigation highlights
      the malaise of constant abuse of procedural provisions which defeats
      justice, i.e. frivolous attempts by unsuccessful litigants to putting up
      spurious objections and setting up third parties, to object, delay and obstruct
      the execution of a decree.
E
             3. The third respondent (hereafter referred to as ‘Narayanamma’)
      had purchased a property measuring 1 Acre (Survey No. 15/2) of
      Deevatige Ramanahalli, Mysore Road, Bengaluru (hereafter referred
      to as ‘suit property’) under the sale deed dated 17.03.1960. The suit
      land was converted and got merged in the municipal limits of Bengaluru
F     and was assigned with Municipal Corporation No. 327 and 328, Mysore
      Road, Bengaluru. Narayanamma sold 1908 square yard of the suit
      property in Municipal Corporation (Survey No. 327) to 2nd and 3rd
      respondents (hereafter referred to ‘Jitendra’ and `Urmila’) under a sale
      deed dated 13.05.1986. This was demarcated with the sketch annexed
G     to the sale deed. The adjacent portion of property, Survey No. 327 was
      sold to Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi by another
      sale deed dated 13.05.1986. This property was also demarcated in the
      sketch and clearly shows its dimensions and boundaries annexed to the
      sale deed. Therefore, the first two respondents, Shri Moolendra Kumar
      Gandhi and Smt. Baby Gandhi became absolute owners of the suit
H
    RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.                              281


property with the totally admeasuring of 3871 square yards. Thus,             A
Narayanamma had sold about 34,839 square feet of the property out of
1 Acre land (43,860 square feet) owned by her. Subsequently, after the
sale of the major portion of the said property to the first two respondents
and their brother, Narayanamma who is the mother of A. Ramachandra
Reddy the fourth respondent (hereafter called “the vendors”) filed a
                                                                              B
suit1 for declaration that the two sale deeds in favour of the first two
respondents (also called “purchasers” or “decree-holders”) as well as
against Shri Moolendra Kumar Gandhi etc. were void. The vendors and
Shri Anjan Reddy (deceased respondent no. 8) on 25.03.1991 executed
a registered partition deed. This document did not advert to the sale
deed executed in favour of the purchasers and Shri Moolendar Kumar            C
Gandhi and Smt. Baby Kumari Gandhi. The purchasers were restrained
by an injunction from entering the property which Narayanamma claimed
was hers.
       4. During the pendency of the suit for declaration, the first
purchasers filed two suits2 against the vendors for possession. During        D
the pendency of these suits on 11.02.2000 by two separate sale deeds
Shri Dhanji Bhai Patel and Shri Govind Dhanji Patel purchased 7489
square feet and 7650 square feet respectively, out of the residue of the
property owned by Narayanamma. While so, during the pendency of
the suits instituted by the purchasers, the vendors again sold the suit
property i.e. the land to the present appellant (Rahul Shah) and three        E
others (Respondents no. 5-7) by four separate sale deeds. 3In the
possession suits the vendors filed counter claims (dated 18.04.1998).
During the pendency of proceedings the purchasers sought for transfer
and mutation of property in their names which were declined by the
Municipal Corporation; this led to their approaching the High Court in        F
Writ Petition No. 19205/1992 which was disposed of with a direction4
that after adjudication of the injunction suit (filed by the vendors) the
khata be transferred.
       5. The proceedings in the injunction suit filed by the vendors and
the other two suits filed by the purchasers were clubbed together. The        G
City Civil Judge, Bangalore by a common judgment dated 21.12.2006
allowed and decreed the suits for possession preferred by the purchasers
1
  O.S. No. 986/1987
2
  O.S. Nos. 9077/ 1996 and 9078/1996
3
  Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004
4
  Dated 05.11.1998                                                            H
282             SUPREME COURT REPORTS                             [2021] 4 S.C.R.


A     and dismissed the vendor’s suit for injunction. The decree holders
      preferred execution proceedings.5 They filed applications under Order
      XXI Rule 97 of the Code of Civil Procedure (CPC) since the judgment
      debtors/vendors had sold the property to the appellant and respondents
      no. 4 to 7. The appellant i.e. a subsequent purchaser filed objections.
B            6. During the pendency of the proceedings the front portion of the
      suit property bearing Municipal Corporation No. 327, Mysore road,
      Bangalore became the subject matter of the acquisition for the Bangalore
      Metro Project. The decree holders (the first two respondents) preferred
      objections to the proposed acquisition and further claimed the possession.
      In the meanwhile, aggrieved by the dismissal of the suit and decreeing
C     the suit for possession, Narayanamma filed first appeals in the High
      Court6. In these proceedings it was brought to the notice of the High
      Court that the suit properties had been sold to the appellant and
      respondents no. 4 to 7. By an order7 the High Court directed the vendors
      to furnish particulars with respect to the sale, names of the purchaser
D     and area sold etc. By common judgment dated 22.10.2009 the High
      Court dismissed all the appeals pending before it. The Special Leave
      Petition preferred by the vendors8 was also dismissed by this Court on
      23.07.2010.
            7. Apparently, during the pendency of execution proceedings
E     before the trial Court the vendors again sold the properties in favour of
      Shri P. Prem Chand, Shir Parasmal, Shri Kethan S. Shah & Ors. and
      Shri Gopilal Ladha & Shri Vinay Maheshwari by separate sale deeds 9.
      This was brought to the notice of the High Court which had dismissed
      the appeal preferred by the vendors.

F            8. During the pendency of the proceedings before the High Court
      Narayanamma, the appellant and respondents no. 4 to 7 filed indemnity
      bonds claiming that there was no dispute with respect to the suit property
      and claimed the compensation in respect of portions that were acquired.
      These were brought to the notice of the High Court which passed an
      order in W.P. No. 9337/2008. The court considered all the materials and
G     held that the compensation could not have been dispersed to the vendors,
      5
        Execution Case Nos. 458-459/2007
      6
        R.F.A. No. 661-663/ 2007
      7
        Dated 10.04.208
      8
        S.L.P. (C) Nos. 16349-13651/2010
      9
H       Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004
     RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.                             283


the appellant and Respondents no. 4 to 7. The High Court issued directions    A
to them to deposit the amounts. An appeal was preferred by the appellant
and the said respondents, against that order, which was rejected by the
Division Bench.10 Consequently, an enquiry was held and order was
passed by the Land Acquisition Officer on 01.08.2011 directing the
appellant, the vendor and others to redeposit the amounts. By an order
                                                                              B
passed in another Writ Petition No. 2099/201111 the High Court held that
the decree holder/purchasers were entitled to transfer of khata of
property in their names and directed to hold an inquiry against the Revenue
Officer. Since the orders of the High Court, with respect to the deposits
of amounts, were not complied with, contempt proceedings were taken.
       9. The High Court in another order dated 19.04.2013 directed           C
Narayanamma and respondents no. 4 to 7 to deposit the amounts. That
order in contempt proceedings (C.C.C. No. 280/2011) was challenged
before this Court in a special leave petition12 which was dismissed on
05.11.2014. Thereafter, apparently in compliance with the High Court’s
direction for transfer of khata the municipal and revenue records reflect     D
the names of the decree-holder/purchasers.
       10. The execution proceedings initiated by the decree holders
resulted in the court requiring parties to lead evidence, in view of the
obstruction by the appellant and respondents no. 4 to 7, by its order
dated 23.04.2010. When obstruction proceedings were pending under             E
Order XXI Rule 97, the judgment debtor i.e. the vendors initiated criminal
proceedings in 2016 against the decree holders; these were stayed by
the High Court on 20.06.2016 and later quashed on 16.03.2017. The
judgment debtors had alleged forgery of certain documents. The High
Court directed appointment of Court Commissioner to identify and
measure the property. At the time of disposal of the criminal proceedings     F
High Court directed that the Commissioner’s report along with the
objections of the Judgment debtors ought to be forwarded to the Executing
Court.
      11. In the meanwhile, by an order the Executing Court had
appointed the Taluka Surveyor of BBMP as the Court Commissioner               G
and directed him to visit the spot and survey and fix the boundaries of
decretal property. Recall of these orders was sought by the judgment
10
   Dated 28.10.2009
11
   Dated 17.07.2013
12
   SLP (C) No. 18031/2013                                                     H
284                SUPREME COURT REPORTS                         [2021] 4 S.C.R.


A     debtors; they also sought for reference to forensic examination by a
      Handwriting Expert of the sale documents. These two review applications
      were dismissed; and on 13.06.2017 the Executing Court declined the
      application for forensic examination of documents and also rejected the
      obstructers’ resistance to execution.
B            12. All these orders led to initiation of five writ petitions on behalf
      of the appellant, and the vendors etc. Three First appeals13 were preferred
      by obstructers challenging the decision of the Executing Court dated
      15.02.2017. By impugned common order all these Writ Petitions and
      appeals were dismissed.
C            13. It is argued by Mr. Shailesh Madiyal on behalf of the appellant
      (Rahul Shah) that the impugned order has the effect of diluting the order
      of the Executing Court dated 23.04.2010 with respect to survey of the
      entire property. It was pointed out by the counsel for the appellant that
      there were disputes with respect to boundaries and identity of the
      properties as between parties. Referring to the order, it was submitted
D     that the Court had noticed that the High Court in earlier Writ Petitions
      had directed the Special Land Acquisition Officer to hold an enquiry and
      if necessary refer the matter to Civil Court under Section 30 of the Land
      Acquisition Act. In view of all these disputes, questions especially related
      to the boundaries and the imprecise nature of the extent and location of
E     the disputed properties, the impugned order should be interfered with
      and the reliefs sought by the appellant be granted. Learned Counsel
      submitted that subsequently by order dated 31.10.2014 the Executing
      Court erroneously held that Sketch Exhibit P-26 was drawn by Revenue
      Authorities whereas in fact it was introduced by handwritten sketch
      given by the decree holders.
F
             14. Learned counsel submitted that decree holder’s efforts in all
      the proceedings were to confuse the identity of the property and therefore
      had sought clubbing of both execution cases; this request was rejected
      by the Executing Court after concluding that the property sought to be
      executed in two cases were different and further that rights claimed too
G     were distinct.
             15. Learned counsel for the appellant in the second set of petitions,
      i.e. SLP (C) No. 11859-11860 of 2020 and SLP (C) No. 11792-11793 of
      2020, on the other hand urged that the High Court as well as the Executing
      13
H          R.F.A. Nos. 441, 468 and 469/2017
  RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.                                   285


Court fell into error in holding that what was sought by the obstructer          A
(i.e. the appellant Gopilal Ladha) was far in excess of what was left
after decree holders had purchased and therefore the conveyances had
overlapped.
       16. Mr. Arunava Mukherjee appearing for the second set of
appellants also reiterated the submissions of Mr. Shailesh Madiyal that          B
the decree holders had intentionally confused the identity of the property.
He highlighted that the High Court acted in error in rejecting the appellants’
request for subjecting documents to forensic examination by handwriting
experts. It was submitted that this aspect was completely overlooked
because the appellants’ had raised serious doubts with respect to the
genuineness and authenticity of the signatures of the documents.                 C

       17. The respondents urged that this Court should not interfere
with the findings of the High Court. Learned counsel reiterated that
numerous proceedings were taken out and that the judgment debtors
had sold the very same property three times over – at least two times
after the decree holders purchased their portions of the property and            D
during the pendency of the suits filed by them. The judgment debtors
had sought a declaration that the sale deeds executed in favour of the
decree holders were not genuine and lost. Thereafter, the judgment debtor
and some of the obstructers succeeded in collecting compensation in
respect of the portion of the property that had been acquired. Ultimately,       E
those amounts had to be disbursed by the Court orders. The judgment
debtors/ vendor even sought forensic examination and initiated the
criminal proceedings that were quashed by the High Court. The High
Court took note of all these circumstances and passed a just order,
requiring the appointment of a Court Commissioner to identify and
measure the properties. While doing so the Executing Court has been              F
asked to take into consideration all the materials on record including the
reports submitted by the previous Court Commissioner Mr. Venkatesh
Dalwai.
       Discussion and conclusions:
                                                                                 G
       18. It is quite evident from the above discussion that the 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. The decree holders also filed a suit for possession. During
the pendency of these proceedings, two sets of sale deeds were executed.
                                                                                 H
286            SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A     The vendors’ suit was dismissed – the decree of dismissal was upheld at
      the stage of the High Court too. On the other hand, the purchasers’ suit
      was decreed and became the subject matter of the appeal. The 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
B
      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
C     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.
D            19. A perusal of the common impugned order shows that High
      Court has painstakingly catalogued all proceedings chronologically and
      their outcomes. The final directions in the impugned order is as follows:
            (a) the other challenge by the JDrs and the
            Obstructors having been partly favoured, the impugned orders
E           of the Executing Court directing Delivery Warrant, are set at
            naught, and the matter is remitted back for consideration
            afresh by appointing an expert person/official as the Court
            Commissioner for accomplishing the identification &
            measurement of the decreetal properties with the participation
F           of all the stake-holders, in that exercise subject to all they
            bearing the costs & fees thereof, equally;
            (b) it is open to the Executing Court to take into consideration
            the entire evidentiary material on record hitherto including
            the Report already submitted by the Court Commissioner Shri
G           Venkatesh Dalwai,
            (c) the amount already in deposit and the one to be deposited
            by the Obstructors in terms of orders of Co-ordinate Benches
            of this Court mentioned in paragraph 8 supra shall be released
            to the parties concerned, that emerge victorious in the
            Execution Petitions;
H
  RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.                                  287


      (d) the JDrs shall jointly pay to the DHrs collectively an                A
      exemplary cost of Rs. 5,00,000/- (Rupees five lakh) only in
      each of the Execution Petitions within a period of eight weeks,
      regardless of the outcome of the said petitions; and, if, the
      same is not accordingly paid, they run the risk of being
      excluded from participation in the Execution Proceedings, in
                                                                                B
      the discretion of the learned judge of the Court below; and,
      (e) the entire exercise including the disposal of the Execution
      Petitions shall be accomplished within an outer limit of six
      months, and the compliance of such accomplishment shall be
      reported to the Registrar General of this Court.
                                                                                C
      No costs qua obstructors.
                                                                         Sd/-
                                                                    JUDGE
        20. The contentions of the Special Leave Petition mainly centre
around one or the other previous orders of the Executing Court with             D
regard identification of the property and boundary etc and the subjecting
documents to forensic examination. As is evident from the reading of
the final order, the High Court has adopted a fair approach requiring the
Executing Court to appoint a Court Commissioner to verify the identity
of the suit properties and also consider the materials brought on record
including the reports of the previous local commission. In the light of         E
this, the arguments of the present appellants are unmerited and without
any force. The Court also finds that the complaint that documents ought
to be subjected to forensic examination, is again insubstantial. The criminal
proceedings initiated during the pendency of the execution proceedings
– in 2016 culminated in the quashing of those proceedings. The argument         F
that the documents are not genuine or that they contain something
suspicious ex-facie appears only to be another attempt to stall execution
and seek undue advantage. As a result, the High Court correctly declined
to order forensic examination. This Court is of the opinion that having
regard to the totality of circumstances the direction to pay costs quantified
at Rs. 5 lakh (to be complied by the judgment debtor) was reasonable,           G
given the several attempts by the decree holder to ensure that the fruits
of the judgment secured by them having been thwarted repeatedly. As a
result, the direction to pay costs was just and proper.
      21. The High Court has directed the Executing Court to complete
the process within six months. That direction is affirmed. The parties          H
288                SUPREME COURT REPORTS                       [2021] 4 S.C.R.


A     are hereby directed to cooperate with the Executing Court; in case that
      court finds any obstruction or non-cooperation it shall proceed to use its
      powers, including the power to set down and proceed ex-parte any party
      or impose suitably heavy costs. Therefore, in light of the above
      observations these appeals are liable to be dismissed.
B            22. These appeals portray the troubles of the decree holder in not
      being able to enjoy the fruits of litigation on account of inordinate delay
      caused during the process of execution of decree. As on 31.12.2018,
      there were 11,80,275 execution petitions pending in the subordinate courts.
      As this Court was of the considered view that some remedial measures
      have to be taken to reduce the delay in disposal of execution petitions,
C     we proposed certain suggestions which have been furnished to the
      learned counsels of parties for response. We heard Mr. Shailesh Madiyal,
      learned counsel for the petitioner and Mr. Paras Jain, learned counsel
      for the respondent.
              23. This court has repeatedly observed that remedies provided
D     for preventing injustice are actually being misused to cause injustice, by
      preventing a timely implementation of orders and execution of decrees.
      This was discussed even in the year 1872 by the Privy Counsel in The
      General Manager of the Raja Durbhunga v. Maharaja Coomar
      Ramaput Sing14 which observed that the actual difficulties of a litigant
E     in India begin when he has obtained a decree. This Court made a similar
      observation in Shub Karan Bubna @ Shub Karan Prasad Bubna v
      Sita Saran Bubna15, wherein it recommended that the Law Commission
      and the Parliament should bestow their attention to provisions that enable
      frustrating successful execution. The Court opined that the Law
      Commission or the Parliament must give effect to appropriate
F     recommendations to ensure such amendments in the Code of Civil
      Procedure, 1908, governing the adjudication of a suit, so as to ensure
      that the process of adjudication of a suit be continuous from the stage of
      initiation to the stage of securing relief after execution proceedings. The
      execution proceedings which are supposed to be handmaid of justice
G     and sub-serve the cause of justice are, in effect, becoming tools which
      are being easily misused to obstruct justice.
            24. In respect of execution of a decree, Section 47 of CPC
      contemplates adjudication of limited nature of issues relating to execution
      14
           (1871-72) 14 Moore’s I.A. 605
      15
H          (2009) 9 SCC 689
  RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.                                  289


i.e., discharge or satisfaction of the decree and is aligned with the           A
consequential provisions of Order XXI. 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
                                                                                B
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 re-trial at the time of execution causing         C
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         D
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 XXI Rule 22 for certain class of            E
cases. However, this is often misconstrued as the beginning of a new
trial. For example, the judgement debtor sometimes misuses the provisions
of Order XXI Rule 2 and Order XXI 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.                                                                   F

       27. This is 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     G
cause of action so that common questions of law and facts could be
decided at one go.
      28. Order I Rule 10(2) empowers the Court to add any party who
ought to have been joined, whether as a plaintiff or defendant, or whose
                                                                                H
290             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     presence before the Court may be necessary in order to enable the
      Court to effectually and completely adjudicate upon and settle all questions
      involved in the suit. Further, Order XXII Rule 10 provides that in cases
      of assignment, creation or devolution of any interest during the pendency
      of the suit, the suit may, by leave of the Court, be continued by or against
      the person to or upon whom such interest has come to be devolved.
B
             29. While CPC under Rules 30 to 36 of Order XXI provides for
      execution of various decrees, the modes of execution are common for
      all. Section 51 of CPC lists the methods of execution as by delivery of
      property; by attachment and sale; by arrest and detention in civil prison;
      by appointing a receiver or in any other manner as the nature of relief
C     granted may require. Moreover, Order XL Rule 1 contemplates the
      appointment of the Receiver by the Court. In appropriate cases, the
      Receiver may be given possession, custody and/or management of the
      property immediately after the decree is passed. Such expression will
      assist in protection and preservation of the property. This procedure
D     within the framework of CPC can provide assistance to the Executing
      Court in delivery of the property in accordance with the decree.
             30. As to the decree for the delivery of any immovable property,
      Order XXI Rule 35 provides that possession thereof shall be delivered
      to the party to whom it has been adjudged, or to such person as he may
E     appoint to receive delivery on his behalf, and, if necessary, by removing
      any person bound by the decree who refuses to vacate the property.
             31. As the trial continues between specific parties before the Courts
      and is based on available pleadings, sometimes vague description of
      properties raises genuine or frivolous third-party issues before delivery
F     of possession during the execution. A person who is not party to the suit,
      at times claims separate rights or interests giving rise to the requirement
      of determination of new issues.
             32. While there may be genuine claims over the subject matter
      property, the Code also recognises that there might be frivolous or
G     instigated claims to deprive the decree holder from availing the benefits
      of the decree. Sub-rule (2) of Rule 98 of Order XXI contemplates such
      situations and provides for penal consequences for resistance or
      obstruction occasioned without any just cause by the judgment debtor or
      by some other person at his instigation or on his behalf, or by the
      transferee, where such transfer was made during the pendency of the
H
  RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.                                    291


suit or execution proceedings. However, such acts of abuse of process             A
of law are seldom brought to justice by sending the judgment debtor, or
any other person acting on his behalf, to the civil prison.
       33. In relation to execution of a decree of possession of immovable
property, it would be worthwhile to mention the twin objections which
could be read. Whereas under Order XXI Rule 97, a decree holder can               B
approach the court pointing out about the obstruction and require the
court to pass an order to deal with the obstructionist for executing a
decree for delivering the possession of the property, the obstructionist
can also similarly raise objections by raising new issues which take
considerable time for determination.
                                                                                  C
       34. However, 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             D
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.
      35. Having considered the abovementioned legal complexities, the            E
large pendency of execution proceedings and the large number of
instances of abuse of process of execution, we are of the opinion that to
avoid controversies and multiple issues of a very vexed question
emanating from the rights claimed by third parties, the Court must play
an active role in deciding all such related issues to the subject matter          F
during adjudication of the suit itself and ensure that a clear, unambiguous,
and executable decree is passed in any suit.
       36. Some of the measures in that regard would include that before
settlement of issues, the Court must, in cases, involving delivery of or
any rights relating to the property, exercise power under Order XI Rule           G
14 by ordering production of documents upon oath, relating to declaration
regarding existence of rights of any third party, interest in the suit property
either created by them or in their knowledge. It will assist the court in
deciding impleadment of third parties at an early stage of the suit so that
any future controversy regarding non-joinder of necessary party may be
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292             SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A     avoided. It shall ultimately facilitate an early disposal of a suit involving
      any immovable property.
             37. It also becomes necessary for the 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
B     defendant. Thus, the Court may also take recourse to the following
      actions:
            a) Issue commission under Order XXVI Rule 9 of CPC.
            A determination through commission, upon the institution of a suit
            shall provide requisite assistance to the court to assess and evaluate
C           to take necessary steps such as joining all affected parties as
            necessary parties to the suit. Before settlement of issues, the Court
            may appoint a Commissioner for the purpose of carrying out local
            investigation recording exact description and demarcation of the
            property including the nature and occupation of the property. In
D           addition to this, the Court may also appoint a Receiver under Order
            XL Rule 1 to secure the status of the property during the pendency
            of the suit or while passing a decree.
            b) Issue public notice specifying the suit property and inviting
            claims, if any, that any person who is in possession of the suit
E           property or claims possession of the suit property or has any right,
            title or interest in the said property specifically stating that if the
            objections are not raised at this stage, no party shall be allowed to
            raise any objection in respect of any claim he/she may have
            subsequently.

F           c) Affix such notice on the said property.
            d) Issue such notice specifying suit number etc. and the Court in
            which it is pending including details of the suit property and have
            the same published on the official website of the Court.
             38. Based on the report of the Commissioner or an application
G     made in that regard, the Court may proceed to add necessary or proper
      parties under Order I Rule 10. The Court may permit objectors or
      claimants upon joining as a party in exercise of power under Order I
      Rule 10, make a joinder order under Order II Rule 3, permitting such
      parties to file a written statement along with documents and lists of
      witnesses and proceed with the suit.
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     RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.                                293


      39. If the above suggested recourse is taken and subsequently if           A
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
                                                                                 B
under Order XXI Rule 97 or Rule 99 must be dealt strictly and be
considered/entertained rarely.
       40. In Ghan Shyam Das Gupta v. Anant Kumar Sinha16, this
Court had observed that the provisions of the Code as regards execution
are of superior judicial quality than what is generally available under the
other statutes and the Judge, being entrusted exclusively with                   C
administration of justice, is expected to do better. With pragmatic
approach and judicial interpretations, the Court must not allow the
judgment debtor or any person instigated or raising frivolous claim to
delay the execution of the decree. For example, in suits relating to money
claim, the Court, may on the application of the plaintiff or on its own          D
motion using the inherent powers under Section 151, under the
circumstances, direct the defendant to provide security before further
progress of the suit. The consequences of non-compliance of any of
these directions may be found in Order XVII Rule 3.
       41. Having regard to the above background, wherein there is urgent        E
need to reduce delays in the execution proceedings we deem it appropriate
to issue few directions to do complete justice. These directions are in
exercise of our jurisdiction under Article 142 read with Article 141 and
Article 144 of the Constitution of India in larger public interest to subserve
the process of justice so as to bring to an end the unnecessary ordeal of
litigation faced by parties awaiting fruits of decree and in larger              F
perspective affecting the faith of the litigants in the process of law.
     42. All Courts dealing with suits and execution proceedings shall
mandatorily follow the below-mentioned directions:
         1.     In suits relating to delivery of possession, the court must      G
                examine the parties to the suit under Order X in relation to
                third
         2.     party interest and further exercise the power under Order
                XI Rule 14 asking parties to disclose and produce
16
     AIR 1991 SC 2251                                                            H
294        SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A            documents, upon oath, which are in possession of the parties
             including declaration pertaining to third party interest in such
             properties.
      3.     In appropriate cases, where the possession is not in dispute
             and not a question of fact for adjudication before the Court,
B            the Court may appoint Commissioner to assess the accurate
             description and status of the property.
      4.     After examination of parties under Order X or production
             of documents under Order XI or receipt of commission
             report, the Court must add all necessary or proper parties
C            to the suit, so as to avoid multiplicity of proceedings and
             also make such joinder of cause of action in the same suit.
      5.     Under Order XL Rule 1 of CPC, a Court Receiver can be
             appointed to monitor the status of the property in question
             as custodia legis for proper adjudication of the matter.
D     6.     The Court must, before passing the decree, pertaining to
      7.     delivery of possession of a property ensure that the decree
             is unambiguous so as to not only contain clear description
             of the property but also having regard to the status of the
             property.
E
      8.     In a money suit, the Court must invariably resort to Order
             XXI Rule 11, ensuring immediate execution of decree for
             payment of money on oral application.
      9.     In a suit for payment of money, before settlement of issues,
             the defendant may be required to disclose his assets on
F
             oath, to the extent that he is being made liable in a suit. The
             Court may further, at any stage, in appropriate cases during
             the pendency of suit, using powers under Section 151 CPC,
             demand security to ensure satisfaction of any decree.
      10.    The Court exercising jurisdiction under Section 47 or under
G            Order XXI of 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
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RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.                             295


        which otherwise could have been raised and determined            A
        during adjudication of suit if due diligence was exercised
        by the applicant.
  11.   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     B
        to any other expeditious method like appointment of
        Commissioner or calling for electronic materials including
        photographs or video with affidavits.
  12.   The Court must in appropriate cases where it finds the
        objection or resistance or claim to be frivolous or mala fide,   C
        resort to Sub-rule (2) of Rule 98 of Order XXI as well as
        grant compensatory costs in accordance with Section 35A.
  13.   Under section 60 of CPC the term “…in name of the
        judgment- debtor or by another person in trust for him or on
        his behalf” should be read liberally to incorporate any other    D
        person from whom he may have the ability to derive share,
        profit or property.
  14.   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         E
        such delay.
  15.   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
        police assistance to such officials who are working towards      F
        execution of the decree. Further, in case an offence against
        the public servant while discharging his duties is brought to
        the knowledge of the Court, the same must be dealt
        stringently in accordance with law.
  16.   The Judicial Academies must prepare manuals and ensure
                                                                         G
        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.

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296                SUPREME COURT REPORTS                      [2021] 4 S.C.R.


A            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
      of 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
B
      the use of Information Technology tools. Until such time these Rules are
      brought into existence, the above directions shall remain enforceable.
              44. The appeals stand dismissed.


C     Nidhi Jain                                               Appeals dismissed.




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