Source: Supreme Court

Why in News?

The Supreme Court (SC) ruled that the Executing Court cannot dismiss an execution petition on consideration that the decree is unenforceable solely due to the property being taken over by a third party in the matter of Smt. Ved Kumari (Dead Through Her Legal Representative) Dr. Vijay Agarwal v. Municipal Corporation of Delhi.

Background

• Ved Kumari (The appellant since deceased represented through Legal Representative) leased out the suit property to Municipal Corporation of Delhi (MCD) in 1973 for a period of 10 years which was renewable with the consent of both the parties.
• The lease was not renewed and the appellant, thereafter, served a notice upon MCD to hand over the vacant possession of the suit property on 02.12.1987.
• MCD was called upon to hand over the possession of the Suit Property on or before 06.01.1988 but it did not turn to the demand of the appellant.
• The appellant then filed suit for recovery of possession in respect of the land against MCD before the Sub-Judge, Ist Class, Delhi which was decreed in favour of appellant.
• The appellant filed execution proceedings against the judgment-debtor and obtained warrants for delivery of possession from the Executing Court.
• When the appellant along with the police force went to the spot to execute the warrants, they faced resistance and therefore the warrants could not be executed.
• The Executing Court thereafter stayed the execution proceedings upon MCD’s application upon which appellant filed an application for issuance of fresh warrants of possession.
• On account of the refusal of the MCD to hand over possession of the decretal land to the appellant a Contempt Petition before the High Court of Delhi (HC) was filed and once again appellants got warrants for possession of decretal land issued. It was further contended by MCD that the suit land has been encroached upon.
• The Executing Court vide its order dismissed the Execution Petition filed by the appellant on the ground that the encroacher(s) upon the land in question were not party to the suit.
• Being aggrieved by the dismissal of the execution petition, the appellant preferred a Revision Petition before the HC which was dismissed.
• The appellant being dissatisfied sought review of the judgment which also got dismissed. Hence the present appeal was filed in the SC.

Court’s Observation

• The SC's division bench comprising of Justices B.V. Nagarathna and Prashant Kumar Mishra observed that the Executing Court had found that MCD’s stand at the inception of the suit was that the suit land was in MCD’s possession. However, in the execution proceedings, MCD had taken a completely different stand that the suit land was under possession of encroachers.
• The SC while observing that MCD was liable to disclose as to how the possession of the suit land had passed from it to a third party stated that “The Executing Court is directed to execute the decree by effecting delivery of physical vacant possession to the appellant/decree-holder in accordance with the provisions contained in Order XXI of CPC.”

Execution Proceedings Under Civil Procedure Code, 1908

• Execution is not defined in CPC, but it simply means the process of enforcing a decree that is passed in favour of the decree holder.
  • Section 2(3) - Decree Holder means any person in whose favour a decree has been passed or an order capable of execution has been made.
• As per Rule 2 (e) of Civil Rules of Practice, “Execution Petition” means the Petition to the court for the execution of any decree or order whereas Rule 2 (f) defines “Execution application” as an application to the court made in a pending Execution Petition and includes an application for transfer, of a decree.
• The CPC provides for Execution specifically under Part II from Section 36-74 and Order XXI.
• Section 37 - Definition of Court which passed a decree — The expression Court which passed a decree, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include, —
  (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
  (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
• Court by which Decree can be Executed is provided under Section 38:
  • A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
• Section 51 - Powers of Court to Enforce Execution —Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree —
  (a) by delivery of any property specifically decreed;
  (b) by attachment and sale or by the sale without attachment of any property;
  (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section;
  (d) by appointing a receiver; or
  (e) in such other manner as the nature of the relief granted may require
• Order 21 primarily deals with the execution of decrees and orders and outlines the procedures that parties can follow to enforce judgments issued by civil courts. A brief overview of the main provisions is as follows:
  • Execution of Decrees and Orders: It outlines the general procedure for executing decrees and orders. It covers issues such as where the application for execution should be filed, the format of the application, and the court's authority to execute decrees.
  • Modes of Execution: This section provides various methods of execution, including attachment and sale of property, arrest and detention, appointing a receiver, and compelling specific performance of actions.
  • Attachment of Property: This part explains the process of attaching the property of the judgment debtor. Attachment involves seizing the property to ensure that it's available for potential sale to satisfy the judgment.
  • Sale of Immovable Property: It outlines the procedures for selling immovable property that has been attached. The process involves valuation and the sale itself.
  • Attachment of Movable Property: This section deals with the attachment and sale of movable property. It explains how movable property is attached and eventually sold through public auction.
  • Arrest and Detention: This part pertains to the arrest and detention of the judgment debtor in cases where the judgment involves payment of a monetary sum.
  • Stay of Execution: It explains the circumstances under which the execution of a decree can be stayed by the court.
  • Provisions Relating to Sale: These provisions provide detailed rules about the procedure for conducting a sale.
  • Disposal of Property: It outlines how the proceeds from the sale of the attached property are to be distributed among the parties involved.