Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 5858 of 2021 Petitioner :- Pushpa Yadav And Another Respondent :- Nagendra Yadav Counsel for Petitioner :- Amaresh Yadava,Mahender Pal Singh Yadav
Hon'ble Prakash Padia,J.
The petitioners have preferred present petition with the prayer to direct the Principal Judge, Family Court, Azamgarh to decide the application (Izra) bearing Case No.83 of 2019 (Pushpa Yadav Vs. Nagendra Yadav) dated 08.05.2019.
Learned counsel for the petitioner placed reliance upon a judgement of the Supreme Court in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi and Ors reported in AIR 2021 SC 2161.
It is argued by counsel for the petitioner that in the aforesaid case specific observations were made by the Hon'ble Supreme Court directing all the civil courts to decide the execution proceedings within six months.
Learned counsel for the petitioner placed reliance upon paragraph 42 in the case of Rahul S. Shah (supra). The paragraph 42 of the order is reproduced hereinbelow:-
"42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below- mentioned directions:
1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third
2. party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.
3. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.
4. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.
5. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
6. The Court must, before passing the decree, pertaining to
7. delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.
8. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.
9. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.
10. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.
11. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
12. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35 A.
13. Under section 60 of CPC the term "?in name of the judgment- debtor or by another person in trust for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.
14. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
15. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.
16. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts."
Heard learned counsel for the petitioner and perused the record.
In this view of the matter, with the consent of parties, without expressing any opinion on the merits of the issue, the present petition stands disposed of finally with a direction to the concerned court below to consider and decide the aforesaid execution case in accordance with law expeditiously but certainly after giving opportunity to the parties concerned and without granting unnecessary adjournments to either of the parties, if there is no legal impediment after taking into consideration the law laid down by the Apex Court in the aforesaid case.
Order Date :- 28.10.2021 Pramod Tripathi