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Report No. 14

11. Sale of immovable property.-

The sale of immovable property must be preceded by a proclamation of sale settled after notice to the judgment-debtor. Further, such a sale can be set aside either (1) on the deposit of the amount mentioned in the proclamation of sale plus five per cent. of the sale proceeds for payment to the purchaser, or (2) on the ground of material irregularity or fraud in publishing or conducting the sale provided substantial injury has resulted by reason of such irregularity or fraud, or (3) on the ground that the judgment-debtor had no saleable interest in the property. If no applications have been made as aforesaid or have been made and disallowed, the court makes an order confirming the sale and thereupon the sale becomes absolute and an order is made for the delivery of possession to the purchaser.

12. Delivery of possession.-

If there is any resistance to the delivery of possession to the decree-holder or purchaser, the executing court holds an enquiry into the matter. As in the case of claim petitions against orders of attachment, the order of the court made in this inquiry is final subject to the result of any suit which may be instituted by any aggrieved party not being the judgment-debtor.

These are the principal stages through which the holder of an ordinary decree for the payment of money has to proceed before he can obtain satisfaction. experience has shown that there is much scope for delay at the different stages of execution. The procedural rules for execution of decrees are contained in Part II of the Code comprising sections 36 to 74, and in Order XXI. We shall now consider the provisions of Part II and of Order XXI in the order in which they are given in the Code, pointing out the defects in the law, which cause delays, and making recommendations with a view to expedite the progress of the execution of decrees.

13. Powers of a transferee court (Limitation.- Consequences).-

A decree may be executed either by the court which passed it or by a court to which it is transferred for execution. Under section 39 the court which passed the decree is empowered, on the application of the decree-holder, to transfer a decree for execution to another court. Under section 41 the court to which a decree is sent for execution has to certify to the court which passed it the fact of such execution or if it fails to execute it, the circumstances attending such failure. The powers of the transferee court are defined in section 42.

Its powers to execute a decree are the same as those of the court which passed the decree and are subject to the same limitations, but its jurisdiction is limited to the execution of the decree only and extends to no other matters. It cannot, for instance, transfer a decree to some other court under section 39. A single illustration will suffice to prove how this restriction on the powers of the transferee court is likely to cause delay. A decree passed by court A is transferred for execution to court B within the limits of whose jurisdiction the judgment-debtor resides.

If, after the transfer of the decree and before execution, the judgment-debtor leaves the jurisdiction of court B and goes to reside within the jurisdiction of court C, court B will be unable to execute the decree and is obliged to return the proceedings to court A with a certificate of failure of execution. The decree-holder must then again apply to court A for transfer of the decree to court C. This is unsatisfactory as it causes delays and unnecessary expense.

14. Increased powers for transferee court.-

We see no reason why the transferee court should not on the application of the decree-holder transfer the decree direct to court C. We elicited opinion on the question whether the court to which the decree is transferred under section 39 should be armed with the following additional powers which are now exercised only by the court which passed the decree, namely;-

(1) Power under section 39 to transfer the decree to another court;

(2) Power under section 50(1) to add the legal representative of a deceased judgment-debtor Is a party;

(3) Power under Order XXI, rule 16 to recognize assignments of a decree;

(4) Power under Order XXI, rule 50(2) to grant leave to a decree-holder;

(5) Power under Order XXI, rule 53(1)(b) to give notice of attachment of a decree passed by another court; and

(6) Power under section 152 to correct clerical or arithmetical errors in the decree.

15. Recommended.-

The views expressed to us unanimously favour the proposal to invest the transferee court with these additional powers. We recommend that these powers be conferred by an appropriate amendment of section 42 of the Civil Procedure Code.

16. Section 47 (Points for consideration).-

We shall next deal with a very important section of the Code relating to execution. Under section 47 all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit. The determination of a question under this section is a decree within the meaning of section 2(2) and is appealable as such.

The section provides a cheap and expeditious procedure for the trial of certain questions arising in execution proceedings without recourse to a separate suit. The conditions barring a separate suit are (1) that questions relating to execution, discharge or satisfaction of the decree must arise in the execution proceedings and (2) they must arise between the parties to the suit in which the decree was passed or their representatives. With reference to this section three distinct suggestions arise for consideration. These are:-

(1) The purchaser at the sale in execution of a decree who is a stranger should be deemed to be a representative of the parties within the meaning of that section.

(2) The principle of direct and constructive res judicata should be applied to proceedings in execution.

(3) The right of appeal against orders passed under section 47 should be substantially curtailed; at any rate such orders should be made non-appealable to the extent of the executing court's small cause jurisdiction.

17. Whether purchaser a representative of the parties. Recent amendment.-

The proposal that the purchaser at an execution sale should be deemed to be a representative of the parties was made in view of the large volume of conflicting decisions on this question. It is unnecessary to deal further with this proposal because in the meantime the proposal has been implemented by the Civil Procedure Code (Amendment) Act of 1956 which amends the Explanation to that section as under:

"Explanation.-For the purpose of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit."

18. Res judicata in execution proceedings.-

Should the principle of res judicata embodied in section 11 of the Civil Procedure Code be statutorily extended to proceedings in execution, particularly to orders passed under section 47 which are in the nature of decrees? It is settled law that section 11 is not exhaustive and that the principle of res judicata can be applied to execution proceedings as well. The Privy Council has held1 that when a question had been raised in an execution proceedings and decided, the decision even if erroneous is binding on the parties and cannot be reopened in subsequent proceedings in execution.

This principle has been consistently followed by the High Courts in India. However the question whether the principle of constructive res judicata incorporated in Explanation IV to section 11 is applicable to execution proceedings is not free from doubt. "A great deal of time is wasted in execution proceedings because there is great divergence of opinion, as to the application of the principle of res judicata to such proceedings. Some High Courts have held that only when a point has been actually raised and decided that it becomes res judicata in execution proceedings.

The result of this is that many a time judgment debtors take objections and allow them to be dismissed for default and then take them again at a later stage with impunity. Further, on other occasions judgment-debtors take the opportunity of raising three or four points under section 47 one after the other instead of raising them all in one objection. This also leads to waste of time of the courts."2 The Bill for the amendment of the Civil Procedure Code introduced in the Lok Sabha in 1955 sought to amend section 47 by substituting the following for the original sub-section (3):

1. Ram Kirpal v. Rup Kuari, ILR 6 All 269.

2. U.P. Judicial Reforms Committee Report, p. 48.

"(3) No court executing a decree shall entertain any question arising in a proceeding under this section between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, if the question had been directly and substantially raised in a former proceeding relating to that decree between the same parties or their representatives and had been finally determined therein."

The following two Explanations were sought to be added by way of clarification of the amendment:

"Explanation II.-The expression 'former proceeding' shall denote a proceeding which has been decided prior to the proceeding in question, whether or not it was instituted prior thereto.

Explanation III.-A question shall be deemed to have been raised in the former proceeding, if the matter in dispute had been alleged by one party and either denied or admitted, expressly or impliedly by the other."

Amendment suggested.- It may be noticed that the proposed amendment did not purport to apply the principle of constructive res judicata of Explanation IV to section 11 to execution proceedings. That is probably why the Joint Select Committee which considered the Bill dropped the proposed amendment of sub­section (3) and the Explanations II and III. The Committee felt that since the Supreme Court had in a recent case1 applied the principle of res judicata to execution cases, the proposed amendment was unnecessary and was likely to create complications.2

Clearly, the amendment introduced by the Bill would not have solved the conflicting judicial opinion on the application of the principle of constructive res judicata to execution proceedings to which a specific reference was made by the U.P. Judicial Reforms Committee. The Supreme Court has unequivocally held in the case referred to above that it is no longer open to doubt that the principle of constructive res judicata is applicable to execution proceedings. In our opinion, it is necessary to give statutory effect to the judicial decisions which hold that the principle of constructive res judicata applied to execution proceedings. We suggest that the amendment proposed in the Bill should be given effect to but with an additional Explanation as set out below:

1. Mohan Lal Goenka v. Benoy Kishna Mukherjee, AIR 1953 SC 65.

2. Report of the Joint Select Committee on the Code of Civil Procedure (Amendment) Bill 1955, p. iv, para. 14.

"Explanation i v".-Any question which might and ought to have been raised in the former proceeding shall be deemed to have been a question directly and substantially raised in such proceeding."

19. Right of Appeal from Orders in Execution.-

The question of the extent of the right of appeal against orders passed under this section arises out of the fact that many appeals preferred against orders in execution are ultimately dismissed as they are found to be frivolous and filed only to delay the execution of the decree.

All orders under section 47 are deemed to be decrees under section 2(2) and are therefore subject to an appeal and also a second appeal unless they are also appealable orders under Order XLIII, rule 1 in which case only one appeal will lies The right of appeal against a decree is, however, subject to the other provisions of the Code relating to appeals. Thus section 96 of the Code provides that "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court".

The section thus prevents an appeal where it is barred by other express provisions in the body of the Code or by any other law for the time being in force. Section 27 of the Provincial Small Causes Courts Act makes the decree or order of a small cause court final and not subject to any appeal. This being a provision of "any other law for the time being in force" no appeal lies from an order under section 47 in execution of a decree of a court of small causes. Section 102 provides that no second appeal shall lie in any suit of the nature cognizable by a court of small causes when the amount or value of the subject matter of the original suit does not exceed Rs. 1,000.

If therefore the decree under execution is passed in a suit of the nature described in section 102, no second appeal will lie against any order passed under section 47 in execution of such a decree.1 Further, as already stated, there are certain orders in execution which fall under section 47 as orders relating to the execution, discharge or satisfaction of a decree are also among the appealable orders in Order XLIII, rule 1. In the case of such orders whatever be the nature of the suit in which the original decree was passed only one appeal would be permissible under section 104 and a second appeal would be barred.

1. See Janki Sahu Trust v. Ram Palat, AIR 1950 All 580; Narayan v. Nagndas, ILR 30 Born 113.

20. No appeal in certain cases.-

Having regard to the above provisions it appears to us difficult to devise any further restrictions on the right of appeal against orders under section 47. However in the case of a money decree passed in a regular suit, orders in execution could be made non-appealable, at any rate, if they deal only with pleas of payment of an amount within the limits of the small cause jurisdiction of the court executing the decree.

An illustration would be a decree for Rs. 2,000 passed in a regular suit for the execution of which a petition is made before the Judge who passed the decree and whose small cause jurisdiction is upto Rs. 500. If the judgment-debtor pleads a payment of Rs. 400, the court's decision on the question would not be appealable. Remembering that one of the most fruitful sources of delay in execution is the dishonest and frivolous pleas of payment or adjustment by the judgment-debtors we are of the view that the proposed restriction will help in expediting execution proceedings.

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