April 23, 2018

Difficulties of a Litigant in India begin when he has Obtained a Decree

The difficulties in execution of decrees as adverted to for the first time by the Privy Council in The General Manager of the Raj Durbhunga, under the Court of Wards v. Maharajah Coomar Ramaput Singh, (1871-1872)14 MIA 605 : 20 ER 912 referred to infra which appears not to have changed, is observed aptly by the Hon'ble Supreme Court in the case of Satyawati v. Rajinder Singh and another, (2013) 9 SCC 491 as follows:
It is really agonizing to learn that the appellant-decree holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant-plaintiff had finally succeeded in January, 1996. 
The Privy Council in General Manager of the Raj-Durbhunga v. Coomar Ramaput Sing had observed that the difficulties of a litigant in India begin when he has obtained a decree. 

Even in 1925, while quoting the aforestated judgment of the Privy Council in Kuer Jang Bahadur v. Bank of Upper India Ltd., Lucknow, the Court was constrained to observe that 
"Courts in India have to be careful to see that the process of the Court and the law of procedure are not abused by the judgment- debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights." 
In spite of the aforestated observation made in 1925, Apex Court was again constrained to observe in Babu Lal vs. Hazari Lal Kishori Lal in para 29 that:
Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections." 
Apex Court, again in Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd. was constrained to observe in para 4 of the said judgment that
It appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time.
The position has not been improved till today. There should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain. 

Court cannot be a mute spectator to the obstructive practices of the respondents and suitable directions needs to be issued to the trial court in handling various legal proceedings relating to the subject matter in dispute to ensure that the fruits of the decree flow to the complainant who has been eagerly waiting for a final end to the continuing litigation. 

Keeping in mind the travails that the decree holder goes through in ensuring relief already granted in the judgment enures to his benefit it is necessary that the courts executing decrees should be alert to all possible tactics resorted to by the third parties as well as parties to the decree to frustrate the execution of the decree in order to ensure that the solemn faith of the successful decree holder in the judicial system is respected. 

To conclude let it not be said: 
"The rain it raineth on the just and also on the unjust fella; but chiefly on the just, because the unjust steals the just's umbrella"
by Charles Synge Christopher Bowen, Baron Bowen.

{The above paragraphs were extracted from a significant judgment of Karnataka High Court in D. Venkatesh v. M.G. Deendayalan dated 20th April, 2018}

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