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Expressing concern over the inordinate delay in execution of a decree across the country, the Supreme Court on October 30, 2023 said that the executing court can never go behind a decree, since under Section 47 of the Civil Procedure Code, it cannot examine the validity of the order of the court which had allowed the execution of the decree, unless the order is itself without jurisdiction. 

A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia further observed the multiple stages a civil suit invariably has to go through before it reaches finality, is to ensure that any error in law is cured by the higher court. 

The appellate court, the second appellate court and the revisional court do not have the same powers, as the powers of the executing court, which are extremely limited, the bench pointed out.

"The reality is that pure civil matters take a long time to be decided, and regretfully it does not end with a decision, as execution of a decree is an entirely new phase in the long life of a civil litigation. The inordinate delay, which is universally caused throughout India in the execution of a decree, has been a cause of concern with this Court for several years," the bench said. 

Dealing with a matter, the bench said as long back as in 1872 (when the CPC of 1859 was in operation), it was observed by the Privy Council that, “the difficulties of a litigant in India begin when he has obtained decree”. 

"The situation, we are afraid, is no better even today," the bench felt.In the case, the appellant, Pradeep Mehra, is the landlord and the respondents are the tenants in a premises measuring about 3240 sq ft bearing, situated at Mehra Industrial Compound, Andheri- Road, Sakinaka, Mumbai.

The landlord, who is more than 70 years of age as of now, had filed a suit for eviction which resulted in a consent decree on June 11, 2005. On February 12, 2013, the court allowed the application holding that the appellant is entitled to execute the decree, following default in rent. 

Four years after on January 19, 2017, the judgment debtors moved an application before the “executing court” challenging the 2013 order by which the court had allowed the execution of the decree. 

The executing court by its order on September 28, 2017 allowed the objections of the appellant and held that under the garb of the provisions of Section 47 CPC, the respondents/judgment debtors were actually challenging the 2013 order of the court, which had allowed the execution of the decree; and which had attained finality. 

On December 22, 2017, a plea for revision by the respondents was allowed.

The appellant filed a writ petition before the Bombay High Court, which dismissed his plea. On appeal, the bench said, "All questions between the parties can be decided by the executing court. But the important aspect to remember is that these questions are limited to the “execution of the decree”. The executing court can never go behind the decree."

The court noted the dispute between them was of sub-letting which led to the eviction suit before the Small Causes Court. During the proceedings, a settlement was arrived at between the parties, inter alia stipulating that the tenants would be liable for eviction if they commit a default of payment of rent for two successive months. 

According to the appellant, the tenants committed a default which led to the filing of the application under Order XXI Rule 11, CPC for execution of the decree. The executing court by its order in 2013 held that the decree is liable to be executed. This order was admittedly never challenged in appeal by the judgement debtor and has attained finality, the bench noted.

In his submission, the appellant relied upon a decision of the Supreme Court given in 'Barkat Ali & Anr vs Badrinarain (D) by Lrs' (2008), where this court reiterated the settled position of law that the principles of res judicata are not only applicable in respect of separate proceedings but the general principles of res judicata are also applicable at the subsequent stage of the same proceedings and therefore the same court will be precluded to go into that.question which has already been decided, or deemed to have been decided by it in the earlier stage. 

"The High Court, to our mind, committed an error by not interfering in the matter. To our mind this case has unnecessarily been dragging on for so long; which is for nearly two decades," the bench said.

Holding the orders passed by the executing court and the HC as not sustainable in the eyes of law, the bench directed the executing court to proceed with and complete the execution as expeditiously as possible, but at any event within a period of six months.