BACKGROUND OF THE CASE

The judgement of the Supreme Court in this case is considered a landmark judgement in relation and regard to the regulations and principles that govern how decrees are orders are executed, and how the same is dealt with by Sections 36-74 and Order 21 of the Code of Civil Procedure. The Court adjudicated to the extent of declaring the Code of Civil Procedure to contain an exhaustive list of provisions to govern the aforesaid execution.

Citation(s)

1. 1991 AIR 2251
2. 1991 SCC (4) 379
3. 1991 SCR Supl. (1) 119
4. 1991 SCALE (2) 611

Court/Adjudicating Judicial Authority

Supreme Court of India

Bench

Justice L.M. Sharma, Justice J.S. Verma (Division Bench)

BENCH AND PARTIES TO THE DISPUTE

Bench

Justice L.M. Sharma, Justice J.S. Verma (Division Bench)

Appellant(s)/Present Petitioner(s) 

Ghan Shyam Das Gupta

Present Respondent(s)  

Anant Kumar Sinha and 6 Others (Names of the other 6 Respondents have not been specified in either the Judgement of the Supreme Court or that of the High Court of Allahabad).  

Counsel(s) for Appellant(s)

Adv. O.P. Rana and Adv. Girish Chandra

Counsel(s) for Respondent(s)

Adv. B.D. Agarwal and Adv. R.D. Upadhyay

MATERIAL FACTS OF THE CASE

This case before the Supreme Court of India arose in furtherance of an Appeal to the Judgement of the Allahabad High Court dated 05/12/1988. The appellants, proprietors of the premises being referred to acquired a pronouncement of ousting against the inhabitant, Respondent No. 7.

While the pronouncement was under test under the steady gaze of the High Court, Respondent Nos. 1 to 5 moved toward the High Court under Article 226 of the Constitution, claiming  that, being individuals from Joint Hindu Family, along with the foam of Respondent No. 7, they were occupants in their own privilege under the appellants and were not limited by the announcement, since they were not parties in the ousting case.

The appellants kept the case from getting free right of the Respondent Nos. 1 to 5 and claimed that they had been thusly accepted in the premises as sub-inhabitants by Respondent No. 7.

The High Court had held that since the case of the Respondent Nos. 1 to 5 was not analysed and chosen in the suit and the declaration was passed against Respondent No. 7 in particular, they couldn’t be ousted from the premises.

ISSUES RAISED

1. Whether the Allahabad High Court was right/justified in its entertainment of the petition filed by the present Respondents under Article 226 of the Constitution of India?
2. Whether the decree issued is executable against the Respondents? (Whether third party, claimant objector, entitled to remedy?)

(For the purposes of this project, I shall be solely dealing with the issue relating to the execution of the decree, as only it, among the issues raised come under the ambit of the current course of Code of Civil Procedure)

ARGUMENTS RAISED

On behalf of Appellants

Arguments on Fact

1. The premises was in the ownership of Dr. K.C. Sinha as occupant. After his demise his child Prabhas Kumar Sinha, respondent No. 7, proceeded under lock and key;
2. The Appellants were in this manner inducted in the premises as sub-inhabitants by Prabhas Kumar Sinha and didn’t have any free right;
3. The Respondents (former Writ Petitioners before the High Court) have intentionally hidden the reality they were parties in a quickly going before case under the arrangements of the Rent Act for arrival of the premises for the proprietor appellants and that the delivery request was eventually made by the assigned authority overruling their objection.

Arguments on Law

1. The High Court acted beyond its jurisdiction, as available under the ambit of writ jurisdiction under Article 226 of the Constitution of India, as it rested its decision on the consideration of the evidence to be led by the parties;
2. The High Court should have dismissed the petition due to lack of merit and suggested filing the same before a Civil Court;
3. The decree in question can and should be executed under Order XXI of the Code of Civil Procedure.

On behalf of Respondents

Arguments on Facts

1. The premises was now solely under the control of Respondent No. 7, Mr. Prabhas Kumar Sinha, and hence, the appellants had no free rights;

Arguments on Law

1. Respondents Nos. 1-5 should not be made parties to the eviction cases that were previously filed by the Appellants in the small causes court, against the current judgement debtor, Prabhas Kumar Sinha, and an eviction can happen against them only when there is an express decree specifically against each;
2. Owing to the absence of an explicit and enumerated provision under the Code of Civil Procedure for grant of execution of decree against stakeholders if not made explicit, the execution of the decree should be stayed.

STATUTORY FRAMEWORKS AND JUDICIAL PRECEDENTS RELIED ON IN ADJUDICATION

Statutory Provisions

1. Order XXI, Rules 97-106, Code of Civil Procedure, 1908: The various guidelines of Order XXI of the Code of Civil Procedure deal with various circumstances, giving successful remedy not exclusively to judgment-debtors and announcement holders yet additionally to petitioner dissidents all things considered. In an extraordinary case, where arrangements are delivered unequipped for offering alleviation to an abused gathering in satisfactory measure and fitting time, the appropriate response is an ordinary suit in the civil court.
2. Article 226, Constitution of India, 1949: Article 226, engages the high courts to issue, to any individual or authority, including the public authority (in fitting cases), bearings, requests or writs, remembering writs for the idea of habeas corpus, mandamus, disallowance, quo warranto, certiorari or any of them.

Judicial Precedents

1. State of Andhra Pradesh v. Chitra Venkata Rao[1]: The jurisdiction to give a writ of certiorari is administrative in nature and isn’t intended for adjusting blunders like an Appellate Court.
2. Thansingh Nathmal & Ors. v. A. Mazid[2]: A case managing obligation to make good on deals charge, the appellants without following the legal cure under the Sales Tax Act, moved the High Court under Article 226 on the ground that the Act was ultra vires.
3. Naina Mohammed v. K.A. Natarajan & Ors.[3]: The empowerment under Article 226 is administrative in nature and the Judges at both the levels had accidentally slipped into the inconspicuous yet, lethal, mistake of practicing a sort of re-appraising survey. So far the topic of executability of an announcement is concerned, the Civil Procedure Code contains intricate and thorough arrangements for managing it in the entirety of its perspectives.

CONCRETE JUDGEMENT

So far as the topic of executability of a decree is concerned, the Code of Civil Procedure contains intricate and thorough arrangements for managing it in all perspectives. The various principles of Order 21 of the code deal with various circumstances giving viable cures not exclusively to judgment-borrowers and decree-holders yet in addition to petitioner dissenters, all things considered.

RATIO DECIDENDI

The Rules 97 to 106 of Order XXI visualize inquiries as in the current appeal to be resolved based on proof to be driven by the gatherings and after the 1976 Amendment, the choice has been made appealable like a decree.

CONCLUSION, INTERPRETATIONS AND CRITICAL COMMENTS

(This section has been strictly restricted to the ambit of the subject, i.e. Code of Civil Procedure. In no way does it analyse the aspects surrounding constitutional law, but wherever there has arisen a need to establish a relationship between the Code and th Constitution, and hence bring in a line of analysis, the same has been done).

This judgement brought out the existence of a statutory recognition of execution of decrees to multiple extents, either in the direct or appealed form.

The Rules 97 to 106 of Order XXI illustrate requests as in the current appeal to be settled dependent on proof to be driven by the social events and after the 1976 Amendment, the decision has been made appealable like a decree.

Execution is the last phase of any civil suit. There are three phases in prosecution:

1. Organization of suit;
2. Arbitration of prosecution;
3. Usage of suit.

Usage of case is otherwise called execution. Decree implies activity or decisiveness of judgment. A decree will be executed by the court which has passed the judgment. In uncommon conditions, the judgment will be actualized by other court which is having competency in such manner. Execution empowers the decree-holder to recuperate the products of the judgment.

The expression “execution” has not been characterized in the code. The articulation “execution” just methods the cycle for implementing or offering impact to the judgment of the court. The standards administering execution of decree and requests are managed in Sections 36 to 74 and Order 21 of the Civil Procedure Code.

Execution is the implementation of a decree by a legal cycle which empowers the decree-holder to understand the products of the decree and judgment passed by the skilled Court in support of himself. The execution is finished when the decree-holder gets cash or other thing granted to him by the judgment, decree or request of the Court.

Order XXI of the CPC is the lengthiest request gives point by point arrangements to making an application for execution and the way that, how they are to be engaged, managed and chosen. Execution is the implementation of a decree by a legal cycle which empowers the decree holder to understand the products of the decree passed by the skilled Court in support of himself. All procedures in execution initiate with the recording of an application for execution.

Such application ought to be made to the Court who passed the decree or where the decree has been moved to another Court, to that Court. When an application for Execution of decree is get by the Court, it will inspect whether the application agrees to the prerequisites of Rules (11 to 14). On the off chance that they agreed to, the Court must concede and enrol the application.

Section 38 of the Code determines that, a decree might be executed either by the Court who passed it or by the Court to which it is sent for execution. Section 37 characterizes the articulation ‘Court which passed a decree’ while sections 39 to 45 accommodate the exchange for execution of a decree by the Court which passed the decree to another Court, set down conditions for such exchange and furthermore manage forces of executing Court.[4]

According to Section 37 the articulation Court which passed the decree is clarified. Fundamentally the Court which passed the decree or request is the executing Court. On the off chance that request or decree is claimed against and the redrafting Court passes a decree or request, and still, at the end of the day the first Court which passed the decree or request keeps on being treated as Court which passed decree.

The Court which has passed the decree or request stopped to exist or stopped to have locale to execute the decree previously passed, at that point the Court which will have a locale upon that topic, when use of execution is caused will to be the competent Court to execute the decree.[5]

Only on the grounds that the jurisdiction of the Court which has passed the decree is move to another Court because of move of regional zone, the ward to execute the decree passed by such a Court isn’t stopped.[6] In any case, the Court to whom the exchange of regional region is made, will likewise have a purview to direct the execution of decree or request.

Section 38 considers that a decree might be executed either by the Court which passed it, or by the Court which it is sent for execution. Anyway the execution on judgment account holder is standards of executing Court of regional jurisdiction.

The judgement, to the extent of verifying and upholding the principles laid down in the Civil Procedure Code, ensures that the following listed principles of the Code are duly taken into consideration:

1. Where a decree is passed against a gathering as the “legitimate delegate” of a perished individual and decree is for installment of cash out of the property of expired individual, it could be executed by connection and offer of any such property.
2. A judgment-account holder might be captured whenever and on any date will needed to be brought under the steady gaze of the court which has passed the decree and his detainment might be in civil jail of the region where decree will must be executed.
3. Where steady property has been sold by the court in execution of a decree such sell will be supreme. The property will be esteemed to be put resources into the kindness of buyer, and the buyer will be considered as a gathering to litigation.[7]
4. The court to which decree is sent for execution will require guaranteeing to the court which has passed decree expressing the way where decree has been actualizing concerning the reality of such execution.[8]

Ever since the judgement, it has been used as a leading light in significant rulings relating to execution of decrees, as it played a fundamental role in ensuring that despite absence of an explicit definition of execution under the Code of Civil Procedure, the enshrined principles be duly taken into consideration in deciding upon extent, validity and possibility of such execution.

Two significant judgements that arose in furtherance of the same are Maharaj Kumar Mahmud Hasan Khan v. Moti Lal Banker[9], and Akbar Ali Khan and Ors. v. Dr. Ishwar Saran[10]. Both of the aforementioned judgements brought out the nuanced concepts of liability imputation out of execution of appeals, and appeals over execution orders, respectively.

 

This Judgment analysis is written by Anurag Rajput, 4th year BALLB(Hons.) student from National Law Institute University Bhopal

 

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[1] State of Andhra Pradesh v. Chitra Venkata Rao, [1976]  1 SCR  521

[2] Thansingh Nathmal & Ors. v. A. Mazid, [1964] 6 SCR 654

[3] M. Naina Mohammed v. K.A. Natarajan & Ors., [1976] 1 SCR 102

[4] Jolly George Verghese v. Bank of Cochin, (1980) 2 SCC 360.

[5] Sewakram v. Chunnilal, AIR 1951 Nag 359; Halsbury’s Laws of England (4^th ed.) Vol. 17 at p.232

[6] Karansing v. Chaman Pawan, (1955) 1 SCR 117

[7] Takwani, C.K., Civil Procedure with Limitation Act, 1963, Eastern Book Company, 7th ed., p. 631.

[8] Id., p. 643.

[9] Maharaj Kumar Mahmud Hasan Khan v. Moti Lal Banker, AIR 1961 All 1.

[10] Akbar Ali Khan and Ors. v. Dr. Ishwar Saran, AIR 1957 All 622.

 

 

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