Report No. 188
Execution Matters and Fast track Procedures:
As stated earlier, execution proceedings cannot be allowed to delay the realization of fruits of the decree in such high value suits that may come before the Commercial Division in fresh suits that may be filed before it, or in pending suits which are either transferred to it from subordinate Courts or allocated to it from the original side of the High Court. All these execution matters must be dealt with only by the Commercial Division.
Then we have execution in the transferred matters, namely, in the pending regular first appeals against decrees passed by Courts subordinate to the High Courts transferred to the Commercial Division and the pending regular first appeals against decrees passed by learned single Judges on the original side which are allocated to the Commercial Division. In these matters, we recommend that the principle that the Court of first instance should be the executing Court be departed from and that in all such regular first appeals which are pending in the High Court and transferred or allocated to the Commercial Division, execution proceedings shall be initiated and concluded in the Commercial Division.
The execution proceedings will, no doubt, be governed by the provision of Order XXI of the Code of Civil Procedure, but the matters must be disposed of within six months of the passing of the decree.
Parties must file their written submissions one month in advance of the date of hearing of the main execution application.
Special budgetary support needed to establish the Commercial Division and the overall market friendly change in investment in business scenario
We may also state that the Central and State Governments must provide the necessary funds to meet the expenditure involved for the establishment of the Commercial Division. This includes the expense involved in appointing extra Judges in the High Court, providing supporting staff and other infrastructure. It also includes the expense involved in establishing the high-tech systems referred to in Chapter VIII. The benefits that may accrue to the economy of the country as a whole by the Constitution and establishment of Commercial Division will be enormous in view of the expected investment by foreign and Indian commercial entities running into several hundreds of crores.
Investment in India, both domestic and foreign is bound to increase tremendously if it becomes known that the Commercial Division in the High Courts in India will dispose of the matters within a maximum period of two years which is comparable to the period of pendency in USA or UK. The expense involved in establishing the Commercial Division with high-tech infrastructure will, in our view, be a small fraction of the overall benefits that will accrue to the economy of the country. There will be sufficient assurance that they need not fear about delays in Courts any longer.
High Courts Judges strength in Commercial Division to be maintained (including Judges under Article 224A):
It may be that in several High Courts, the number of suits transferred or appeals transferred along with fresh suits and appeals of the value of Rs.1 crore or above that may be filed in future may be considerable. Having regard to the average rate of disposal of suits/appeals and the number of cases which fall to the Commercial Division, in our view, the Chief Justice of the High Court must see that there are in position as many number of Judges to man the Division Benches as may be necessary for a fair and speedy disposal of commercial cases in the Division.
Under Article 224A, the Chief Justice of the High Court with the previous consent of the President, appoint from among retired Judges of the same or other High Courts, to function as Judges of the High Court. These Judges appointed under Article A Judges can dispose of commercial cases along with other regular Judges of the High Court. Once the arrears have come down to a tolerable level, the High Court may consider whether it will be able to manage with its regular cadre of Judges. In our view, the Chief Justice must ensure that whatever be the number of retirements in his High Court, the number of Judges who are required to be on the Commercial Division is maintained throughout.
We do not deny that other subjects jurisdictions in the High Court too require Judges, e.g. for criminal work or writ jurisdiction and so on. But in a total of more than 600 Judges in the High Courts in the country, the fact remains that, at any given point of time, there are always more than hundred or hundred and fifty vacancies. It is unfortunate that though it is required that Chief Justices should send recommendations for appointment of High Court Judges six months in advance of a vacancy falling, this is normally not done.
Mostly the process of consultation with the collegium within the High Court level is started long after the occurrence of several vacancies. With the existing depleted strength of Judges, the huge backlog in most High Courts cannot be cleared unless such delays in sending recommendations are eliminated. There was some thinking that when regular or additional vacancies are available in the High Court, the Chief Justice of the High Court should not normally resort to Article 224A appointments.
But, things have changed. Speedy disposal of commercial cases is today as important as speedy disposal of a criminal appeals. The Commission is of the view that in the interests of clearing arrears in the High Courts in various types of cases including criminal matters, a combination of regular newly appointed High Court Judges from the Bar and subordinate judiciary on the one hand and appointments under Article 224A on the other, is the grave need of the hour.
We may make some passing observations. There are some High Courts where criminal appeals are pending for more than twenty years. Bails are automatically granted as a matter of practice, if a criminal appeal is pending for more than five years in the High Court. This is a sorry state of affairs. The backlog on the criminal side can be cleared easily by appointing a good number of retired High Court Judges under Article 224A who have adequate expertise in criminal law. We must reach a stage where criminal appeals are brought for disposal within three years from date of their filing in the High Court. Similarly, large number of appeals relating to family disputes matters are pending in the High Courts, need to be speedily disposed of and this can be achieved by appointing more Judges or Judges under Article 224A.
We are referring to this aspect of the matter because the proposals for establishment of a Commercial Division in the High Court in as many Benches as may be necessary, will remain a dead letter if the Commercial Division does not have the full strength of Judges required for that Division. Inasmuch as other jurisdictions, such as criminal, writs also require Judges, then the only solution is to undertake the following steps urgently:
(a) to make recommendations for fresh appointments to the High Court from the Bar and subordinate judiciary, six months in advance before any vacancy occurs and
(b) to urgently appoint Judges under Article 224A of the Constitution to first clear the heavy backlog and bring the arrears within manageable proportions in all jurisdictions, including criminal, commercial and family matters.