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Report No. 14

61. Summary of recommendations.-

We summarize our recommendations as follows:-

(1) The court to which a decree is transferred for execution under section 39 should be given additional powers which are now exercisable only by the court which passed the decree.

(2) Statutory effect should be given to the judicial decisions which apply the principle of direct and constructive res judicata to execution proceedings.

(3) Orders in execution should be non-appealable if they deal with pleas of payment within the limits of the small cause jurisdiction of the court executing the decree.

(4) In appeals against orders in execution of money decree the appellant judgment-debtor should be required to deposit or at least give security for the decretal amount as a condition precedent to the admission of the appeal.

(5) Rule 1 of Order XXI should be amended so as to provide for payment of the decretal amount through a bank or by a postal money order or by payment evidenced by a writing.

(6) If money is paid through a bank or the post office, the limitation of 90 days prescribed for getting the payment certified should be deleted.

(7) A special form of money order should be prescribed to enable parties to pay decretal amounts into court.

(8) Clauses (b), (c), (d), (f) and (h) in Order XXI, rule 11(2) should be omitted.

(9) The amendment of rule 17 of Order XXI made by the Calcutta High Court should be incorporated into the Civil Procedure Code.

(10) In Order XXI, rule 22(1)(a), the words "three years" should be substituted for "one year".

(11) In warrants of arrest under rule 37 notice to the judgment-debtor should be issued only at the discretion of the court. The rule should be suitably amended.

(12) The notice for settling proclamation of sale under Order XXI, rule 66 may be omitted and the judgment-debtor asked to take notice of all further steps by appearance on the date fixed in the prohibitory order under rule 54.

(13) The requirement of security or imposition of conditions before granting stay of decree under rule 26, Order XXI should be mandatory and not discretionary.

(14) The court's power to stay execution by issuing a temporary injunction under Order XXXIX, rule 1 should be taken away.

(15) Rules for garnishee proceedings on the lines of rules 46A to 46H of Order XXI made by the Calcutta High Court should be made by all High Courts for enforcement in all subordinate courts.

(16) Execution sales should not be postponed pending the investigation into claim petitions under rule 58 of Order XXI.

(17) The confirmation of the sale and the delivery of possession may be postponed until the conclusion of the inquiry.

(18) The provision for suits under rules 63 and 103 of Order XXI should be omitted and the executing court itself should make a full inquiry into the right and title of the parties.

(19) The proclamation of sale need not mention the court's estimate of the price.

(20) Deposit of an amount not exceeding 121/2 per cent. of the sale proceeds or security for a like amount should be a condition precedent to the admission of an application under Order XXI, rule 90.

(21) The volume of execution work done by a judicial officer should be taken into consideration in judging the quantum of his work.

(22) Judicial officers should take a more lively interest in execution work and set aside a specific time for it.

(23) Wherever there are more courts than one of the same class in one centre, one court should be entrusted with the entire execution work of all such courts. This work may be entrusted to the officer with the highest jurisdiction.

Appendix I

This is a short history of a proceeding in execution of a decree in the Court of a Munsif in West Bengal. It illustrates the difficulties which a decree-holder has to encounter in recovering the fruits of his decree. It is one of those cases-by no means rare-in which proceedings, be they regular suits, appeals or execution proceedings, drag on interminably causing enormous waste of public time and money.

The proceedings which were in execution of a decree for possession of immovable property (house) commenced in 1948 and continued till December 1956 without any progress whatever having been made towards the satisfaction of the decree. During the eight years of its pendency the execution proceeding followed a certain well defined pattern described below:-

(i) Warrant of possession is issued at the instance of the decree-holder.

(ii) Warrant returned unserved because of judgment-debtor's obstruction.

(iii) Warrant re-issued to be executed with police help.

(iv) Judgment-debtor files objection petition (section 47, Civil Procedure Code) raising irrelevant and frivolous grounds.

(v) Objections heard end dismissed and warrant ordered to be reissued.

(vi) Proceedings stayed by District Court in an appeal preferred by judgment-debtor.

(vii) Warrant re-issued on dismissal of appeal: returned unserved,

(vii) Warrant ordered to be re-issued with police help.

(ix) Judgment-debtor files objection petition under section 47 raising different grounds.

Between these stages the proceedings were adjourned many times because the court was otherwise engaged or because the lawyers "cannot be found" or for the convenience of the parties or on the ground that the parties wanted to compromise till December, 1956 and after a lapse of eight years the warrant of possession had not been executed.

The following excerpt from the case diary shows how the case proceeded (or did not proceed) during its pendency of eight years:?

08/09/48 Execution petition filed by decree-holder.
06/11/48 Notice to judgment-debtor returned after service and time given to file objections.
15-11-1948 Warrant of possession ordered under Order 21 rule 35.
13-12-1948 Warrant returned unexecuted, Decree-holder applied for execution with police help.
(Upto 21-2-1949 no intimation had been received from the police in spite of reminders).
19-12-1949 (1st application under section 47). Judgment-debtor filed Misc. Application 31/49 under section 47, Civil Procedure Code objecting to execution.
(Three adjournments on intermediate dates for fixing the date of hearing. Between 18-6-1949 and 18-3-1950 four more adjournments followed on Judgment-debtor request though Decree-holder was ready).
18-3-1950 Joint application by parties for time to compromise granted.
31-3-1950 Judgment-debtor absent. Misc. No. 31/49, dismissed for default. (This intermediate proceeding went on for nearly 13 months).
01/04/50 Judgment-debtor's application under section 151 to restore Misc. No. 31/49.
19-8-1950 The above was dismissed after four intermediate adjournments. (Another 41/2 months taken up in hearing an interlocutory application).
23-8-1950 Decree-holder applied for re-issue of warrant of possession.
24-8-1950 Judgment-debtor given 15 days time to bring a stay order from appellate court. (It should by now have been obvious to the executing court that the judgment debtor was deliberately following obstructionist tactics and raising frivolous objections and proceedings to delay the execution. The court would have exercised its discretion more judiciously if it had refused to grant the time).
14-9-1950 Stay granted by appellate court.
16-12-1952 Appeal decided and stay order vacated. (Thus, more than two years were again spent in an interlocutory appeal. It is more than probable that the appellate court had not applied its mind to the case before admitting the appeal and granting a stay order).
16-12-1952 Warrant of possession re-issued and made returnable on 16-1-1953.
19-1-1953 (2nd application under 47). Judgment-debtor files objection petition under section being Misc. No. 11/53.
14-3-1953 Judgment-debtor's application under section 47 dismissed. (The order of the court which is reproduced in the case diary shows that this was another entirely frivolous application which the Court could have summarily dismissed as soon as it was filed without calling upon the decree-holder to reply and thereby taking a further two months).
16-3-1953 Decree-holder applied for warrant of possession returnable on 18-4-1953.
01/04/53 District Court issues a stay order in Misc. Application No. 101/53.
(The District Court could very easily have disposed of this appeal summarily after reading the executing court's orders. There was no justification for a stay of execution proceedings).
29-3-1954 Appeal dismissed and stay vacated. Postponed to 12-4-1954 for further steps.
(Thus one more year was taken up by a frivolous appeal).
12/04/54 Decree-holder applied for police help to execute warrant of possession.
22-5-1954 (3rd application under 47). Another application by Judgment-debtor under section 47 Civil Procedure Code No. Misc. 67/54.
10/06/54 Misc. No. 67/54 dismissed.
22-6-1954 Warrant under Order 21, rule 35 ordered to be re-issued.
21-7-1954 Warrant returned unserved. Decree-holder again applied for police help, warrant returnable on 16-8-1954.
9-8-1954 (4th application under section 47). Judgment-debtor files another objection petition under under section 47 Civil Procedure Code No. 108/54.
11/08/54 Decree-holder files his objections. (At first this was postponed for decree-holder's objections on 28-8-1954 but decree-holder promptly replied on 11-8-1954. Hence the matter could well have been heard or disposed of on 28-8-1954).
28-8-1954 Fixed for 18-9-1954 for peremptory hearing. (Two more adjournments followed for compromise).
13-11-1954 Misc. No. 108/54, dismissed for default.
16-11-1954 Judgment-debtor files application under section 151 Civil Procedure Code for restoring 108/54.
27-11-1954 Pleaders absent.
(Between 27-11-1954 and.-4-1955 four to five adjournments followed at the instance of both the parties for a compromise. It is difficult to understand why the court at that stage did not pass orders on the Judgment-debtor's application of 16-11-1954.
02/04/55 Judgment-debtor's application under section 151 allowed and 108/54 restored to file. (Hearing of Misc. 108/54 postponed 6 times for compromise and on other grounds upto 28-1-1956).
28-1-1956 Misc. 108/54 dismissed. (It took one year and a half to decide this application).
10/02/56 Decree-holder applied for possession with police help.
01/03/56 Execution stayed by District Court in Misc. Appeal 39/56. (This is the third time execution is stayed by District Court in an interlocutory appeal).
15-9-1956 Stay vacated.
26-9-1956 Decree-holder applied for possession with police help.

The Roznama is written upto 12-11-1956 upto which date the warrant of possession to be given with the police help had not been returned.

It will be noticed that no progress at all was made in this case and eight years were taken up in frivolous and irrelevant proceedings. Although the judgment-debtor seems to have been primarily responsible for this inordinate delay, we think that the proceedings could have been considerably shortened if the original and the appellate courts had been able to apply their minds to the merits of the case.

The case set out above is a type of many similar cases the files of which were made available to us.

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