Whether The Court Can Execute Injunction Decree Against Some of The Judgment Debtors if One of The JD is Dead

 The 3rd contention that the 1st Judgment Debtor (JD) having died and his LRs having not been brought on record, the Injunctive Decree is not executable at all qua the other Judgment Debtors is too farfetched an argument since it is a judgment in personam, and can be executed as against rest of the Judgment Debtors, No Rule of Law being shown to the effect that the death of one of the Judgment Debtors results into the dissolution of the Decree qua the other Judgment Debtors.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition No. 46572 of 2016 (GM-CPC)

Decided On: 28.06.2019

Hanumanthaiah  Vs.  G.S. Arun Kumar and Ors.

Hon'ble Judges/Coram:

Dixit Krishna Shripad, J.

Citation: MANU/KA/4382/2019

1. Petitioners being the Judgment Debtors in 1st Respondents' Execution No. 18/2006 are invoking the writ jurisdiction of this Court for assailing the order dated 29.06.2016 whereby, petitioners are ordered to be committed to Civil Prison for a period of one month for violating the Injunctive Decree dated 30.11.1993 rendered in O.S. No. 150/1986. After service of notice, Respondents having entered appearance through their counsel resist the writ petition.

2. Learned counsel for the petitioners seeks to invalidate the impugned order on the following four grounds:

a) the execution of decree is levied by one of the decree holders, others having not joined him and therefore the same is impermissible;

b) the 1st Judgment Debtor having died and his LRs having not been brought on record, the Decree cannot be put in Execution;

c) the Injunctive Decree if permitted to be executed amounts to treating it as a decree for possession when it is not one such and therefore execution is incompetent; and

d) the petitioners being the members of the depressed classes have been in the possession of the subject property and therefore an Injunctive Decree cannot be executed against them.

So arguing, learned counsel seeks allowing of the writ petition.

3. Learned counsel for the Respondent - Decree Holders, per contra submits that the decree having been entered by the trial Court below, the challenge was laid to the same in R.A. No. 350/2004 and the said challenge came to be negatived by the Appellate Court vide order dated 02.12.2005; the contention urged by the petitioners having been substantially urged in the RA and rejected, the same cannot be re-urged in the execution petition; re-argument of contra contentions amounts to abuse of the process of the Court; having so contended, the learned counsel seeks dismissal of the writ petition.

4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. I have perused the writ petition papers.

5. The suit of the respondents in O.S. No. 150/1986 came to be decreed after a full-fledged trial; the first issue out of the seven in all framed related to the respondent - decree holders being in lawful possession and enjoyment of the suit property and the same has been answered in the affirmative by the Court below holding that the defendant/decree holders have been in the possession of the subject property. The challenge to this decree in petitioners' R.A. No. 350/2004 has been negatived by the learned First Additional District judge, Tumakuru, vide order dated 02.12.2005 and cost is also imposed. In view of this position, it is not open to the petitioners now to argue that it is they who are in the possession of the subject property. So, the first contention stands rejected.

6. The second contention that the execution is levied only by one of the decree holders and thus the same being incompetent, the impugned order passed therein is a nullity, is too difficult to accept inasmuch as, ordinarily an injunctive decree being in personam can be put in execution by one of the decree holders. It is not a thumb rule that, in all cases, all the decree holders should join to levy execution vide ELBROS TEXTILES LTD., vs. SURENDRA KUMAR HAR KISHORE JAIN, MANU/MH/0059/1993 : AIR 1993 BOMBAY 381, 383; SARVARI BEGUM vs. NAZIR AHMED, MANU/WB/0083/2003 : AIR 2003 CALCUTTA 230.

7. The third contention that the first Judgment Debtor having died and his LRs having not been brought on record, the injunctive decree is not executable at all qua the other judgment debtors is too farfetched an argument since it is a judgment in personam, and can be executed as against rest of the judgment debtors, no rule of law being shown to the effect that the death of one of the judgment debtors results into the dissolution of the decree qua the other judgment debtors.

8. This case reminds me of what the Judicial Committee of Privy Council speaking through the RIGHT HON. SIR JAMES COLVILE, about a century & a half ago i.e., in the year 1872 had observed in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE'S INDIAN APPEALS MANU/PR/0029/1872 : (1871-72), VOL. 14, PAGE 605 : 17 W.R. 459; it reads:

"These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree....''

In the above circumstances, this writ petition fails; the petitioners are liable to pay a cost of Rs. 10,000/- to the respondent-decree holders. The Court below shall take necessary action for recovering the said amount in accordance with law and paying the same to the respondent-decree holders at the earliest and to report compliance to the Registrar General of this Court.

Whether Lower Court Can Refuse To Proceed With The Trial After Expiry of 6 Months if HC Has Not Vacated The Stay

 Whether Lower Court Can Refuse To Proceed With The Trial of Case After Expiry of 6 Months if High Court Has Not Vacated The Stay

We are constrained to point out that in our directions contained in the

judgment delivered in Criminal Appeal Nos. 1375-1376 of 2013 [Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. vs. Central Bureau of Investigation] and, in particular, para 35, it is stated thus:

“35. … …. In cases where stay is granted in future,

the same will end on expiry of six months from the

date of such order unless similar extension is

granted by a speaking order. The speaking order must

show that the case was of such exceptional nature

that continuing the stay was more important than

having the trial finalized. 

The trial Court where

order of stay of civil or criminal proceedings is

produced, may fix a date not beyond six months of

the order of stay so that on expiry of period of

stay, proceedings can commence unless order of

extension of stay is produced.”

Learned Additional Chief Judicial Magistrate, Pune, by his

order dated 04.12.2019, has instead of following our judgment in

letter as well as spirit, stated that the Complainant should move

an application before the High Court to resume the trial. The

Magistrate goes on to say: “The lower Court cannot pass any order

which has been stayed by the Hon’ble High Court, Bombay with due

respect of ratio of the judgment in Asian Resurfacing of Road

Agency Pvt. Ltd. & Anr. (supra).” 

We must remind the Magistrates

all over the country that in our pyramidical structure under the

Constitution of India, the Supreme Court is at the Apex, and the

High Courts, though not subordinate administratively, are certainly

subordinate judicially. This kind of orders fly in the face of

para 35 of our judgment. We expect that the Magistrates all over

the country will follow our order in letter and spirit. Whatever

stay has been granted by any court including the High Court

automatically expires within a period of six months, and unless

extension is granted for good reason, as per our judgment, within

the next six months, the trial Court is, on the expiry of the first

period of six months, to set a date for the trial and go ahead with

the same.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

MISCELLANEOUS APPLICATION NO. 1577 OF 2020

IN

CRIMINAL APPEAL NOS. 1375-1376 OF 2013

Whether Delay in Delivery of Reasoned Judgment Violates Article 21 of the Constitution

Whether Delay in Delivery of Reasoned Judgment Violates Article 21 of the Constitution

The Report was submitted by the Registrar

(Judicial) stating that the order was Pronounced on

21.01.2020 being Only The Operative Portion and the

Reasons were received by the Registry only on 09.10.2020

after almost 9 Months. It was uploaded on the same

date.

9. On the Aforesaid Short Ground, without even looking

at any other aspect, we issued Notice Returnable for

today and Stayed the Operation of the Impugned Order.

10. We must note with regret that the counsel extended

through Various Judicial Pronouncements including the

one referred to aforesaid appear to have been ignored,

more Importantly where Oral Orders are Pronounced. In

case of Such Orders, it is expected that they are either

dictated in the Court or at least must follow

immediately thereafter, to facilitate Any Aggrieved

Party to seek Redressal from the Higher Court. The

Delay in Delivery of Judgments has been observed to be a

Violation of Article 21 of the Constitution of India in

Anil Rai’s case (supra) and as stated aforesaid, the

problem gets aggravated when the operative portion is

made available early and the reasons follow much later.

11. It cannot be countenanced that between the date of

the Operative Portion of the Order and the Reasons

Disclosed, there is a Hiatus Period of 9 Months!

This is much more than what has been observed to be The

Maximum Time Period for Even Pronouncement of Reserved

Judgment as per Anil Rai’s case (supra).

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL N O.3564/2020

 

Supreme Court Guidelines for Speedy Disposal of Execution Of Decree

Supreme Court Guidelines for Speedy Disposal of Execution of Decree

 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  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 35A.

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.

43. We further direct all the High Courts to reconsider and

update all the Rules relating to Execution of Decrees, made under

exercise of its powers under Article 227 of the Constitution of

India and Section 122 of CPC, within one year of the date of this

Order. The High Courts must ensure that the Rules are in

consonance with CPC and the above directions, with an

endeavour to expedite the process of execution with the use of

Information Technology tools. Until such time these Rules are

brought into existence, the above directions shall remain

enforceable.

SC Issues Guidelines for Cheque Bounce Cases - Asks Govt To Amend Laws

The SC said that over the years, Courts have been inundated with Cheque Bounce Complaints which could not be decided within a reasonable period and “this gargantuan pendency of complaints … has had an adverse effect in disposal of other criminal cases.”

To ensure speedy disposal of more than 35 lakh Cheque Bounce Cases pending in Various Courts, the Supreme Court on Friday gave a number of directions, including asking the Government to amend the laws to allow clubbing of multiple trials in cases filed for a same transaction against anyone.

To avoid multiplicity of proceedings and to reduce the burden on the Docket of the Criminal Courts, a 5-Judge Constitution Bench led by Chief Justice S.A. Bobde recommended that “Suitable Amendments” be made in the Negotiable Instruments Act for provision of one trial against a person for multiple offences under Section 138 committed within a period of 12 months.

Of the 2.31 crore pending criminal cases, 35.16 lakh relate to dishonoured cheques. The reason for the backlog of cases, according to amici curiae, is that while there is a steady increase in complaints every year, the rate of disposal does not match the rate of institution of complaints.

The SC said that over the years, courts have been inundated with cheque bounce complaints which could not be decided within a reasonable period and “this gargantuan pendency of complaints … has had an adverse effect in disposal of other criminal cases.”

Stating that undue delay in service of summons is the main cause for the disproportionate accumulation of complaints under Section 138 before the courts, the judges requested the high courts to issue practice directions to the trial courts to treat service of summons in one complaint pertaining to a transaction as deemed service for all complaints filed before the same court relating to dishonour of cheques issued as part of the transaction.

It directed that the HCs may issue practice directions to the magistrates to record cogent and sufficient reasons before converting summary trial to summons trial in exercise of power under the second proviso to Section 143 of the Act. Even the examination of witnesses should be permitted on affidavit and only in exceptional cases, the magistrate may examine the witnesses personally, it said.

On March 5 last year, the top court had registered a suo motu case and decided to evolve a concerted and coordinated mechanism for speedy disposal of such cases. It had appointed senior advocate Siddharth Luthra and advocate K Parameshwar as amici curiae.

The SC had sought the Centre’s view on creating additional courts to deal with cheque bounce cases. However, the Centre, through the Department of Financial Services (DFS), had dismissed the suggestion. Instead of setting up additional special courts, the DFS had suggested measures like capping the maximum number of hearings.

Can A Court Issue A Non-Bailable Warrant If A Summons Were Issued On WhatsApp

 

Can a court issue a non-bailable warrant against the accused in a criminal case if a summons were issued to him on Whatsapp?

 The Crl.M.C is filed aggrieved by the non-bailable warrant issued against the petitioner. The specific case put forth by the petitioner is that the summons, alleged to have been sent through WhatsApp to his mobile phone, had never reached him, as he has not downloaded the WhatsApp application on his phone.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANOOP JACOB Vs STATE OF KERALA

Crl.M.C.No.1658 of 2021

Dated this the 9th day of April, 2021

PRESENT

 MR.JUSTICE V.G.ARUN

The petitioner is the 1st accused in C.C.No.134 of 2021 on the

files of the Additional Chief Judicial Magistrate (Special Court for Cases

related to MPs/MLAs), Ernakulam. The offences alleged are under

Sections 143, 147, 149, 269, 271 and 188 of IPC, Section 118(e) of the

Kerala Police Act and Sections 4(2)(a), 4(2)(e) and 5 of the Kerala

Epidemic Disease Ordinance, 2020. The Crl.M.C is filed aggrieved by

the non-bailable warrant issued against the petitioner. The specific

case put forth by the petitioner is that the summons, alleged to have

been sent through WhatsApp to his mobile phone, had never reached

him, as he has not downloaded the WhatsApp application on his

phone.

2. In view of the contentions, it may be apposite to have a look at

Section 62 of Cr.P.C, dealing with mode of service of summons;

“62. Summons how served.

(1) Every summons shall be served by a police officer, or

subject to such rules as the State Government may make in this

behalf, by an officer of the Court issuing it or other public

servant.

(2) The summons shall, if practicable, be served personally

on the person summoned, by delivering or tendering to him one

of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if

so required by the serving officer, sign a receipt therefor on the

back of the other duplicate.”

3. Going by Section 65 of Cr.P.C, if service could not be effected

as provided under Section 62, the serving officer shall affix one of the

duplicates of the summons to the conspicuous part of the house or

homestead in which the person summoned ordinarily resides.

Thereafter, the court should make such enquiries as it thinks fit and

either declare the summons to have been duly served or order fresh

service in such manner as it considers proper. As per Rule 7 of the

Criminal Rules of Practice, Kerala, summons issued to the accused and

witnesses shall ordinarily be signed by the Chief Ministerial Officer of

the Court and the words “By order of the Court” shall invariably be

prefixed to the signature of the Ministerial Officer.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, it may be

pertinent to note the insertion of Section 144 in the Negotiable

Instruments Act (for short, 'the Act') for the purpose of overcoming the

delay in serving summons on the accused in complaints under Section

138 of the Act. Section 144, providing for service of summons by

speed post or by approved courier service, was inserted by Act 55 of

2002. In Indian Banks Assn. v. Union of India [(2014) 5 SCC 590],

the Honourable Supreme Court alerted the Magistrates about the need to adopt a pragmatic and realistic approach while issuing process and

had directed to issue summons by post as well as by email. Later, in

Meters & Instruments (P) Ltd. v. Kanchan Mehta [(2018) 1 SCC

560], the Apex Court observed that in complaints under Section 138, it may be desirable for the complainant to give his bank account number and if possible, the email ID of the accused. Recently, in Makwana Mangaldas Tulsidas V. State of Gujarat [(2020) 4 SCC 695], it has

been held that the Banks are bound to provide the requisite details by

developing an information sharing mechanism, where the Banks can

share all the requisite available details of the accused, who is the

account holder, with the complainant and the Police for the purpose of

execution of process.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

In the result, the Crl.M.C is disposed of permitting the petitioner

to appear before the Additional Chief Judicial Magistrate's Court

(Special Court for Cases related to MPs/MLAs), Ernakulam in

C.C.No.134 of 2021 and to move an application for bail. In such event, the bail application shall be considered on the same day, deeming the petitioner to have appeared on summons. In order to provide an opportunity for the petitioner to appear before the court below and seek bail, the non-bailable warrant issued against him shall be kept in abeyance for a period of four weeks.

Whether Trial Court Can Stay Execution of Decree Till Disposal of Appeal

 

Whether trial court can stay execution of decree till disposal of appeal?

 As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already OP(C).No.52 OF 2020 filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.

Kerala High Court

Syamala vs Thapodhanan on 22 January, 2020

Coram:  MR. JUSTICE B.SUDHEENDRA KUMAR

In this original petition, Exts.P8 and P11 are under challenge.

2. Heard.

3. The petitioner is the decree holder, who filed E.A.No.173 of 2018 in E.P.No.55 of 2018 in O.S.No.543 of 2010 praying for issuing a direction to the Station House Officer concerned to protect the possession of the petitioner over the decree schedule property and also for taking prosecution for the violation of the decree.

4. The court below passed Ext.P8 order, dismissing the application stating that if the order is violated, the petitioner can approach the court by filing OP(C).No.52 OF 2020 proper application. It appears that the court below did not consider as to whether the decree was already violated and as to whether the police assistance sought for by the decree holder had to be granted or not, in accordance with law. Since the court below did not consider the said aspects, Ext.P8 is not sustainable.

5. As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already OP(C).No.52 OF 2020 filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.

In the result, this Original Petition stands allowed, setting aside Exts.P8 and P11 and the court below is directed to pass orders afresh on E.A.No.173/2018, affording reasonable opportunity of hearing to both sides, in accordance with law, as expeditiously as possible and at any rate within one month from the date of receipt/production of a copy of this judgment.