Quote:
Originally Posted by Sumaira N Chaudhry
i am facing difficulty in preparing the following question!
Execution of a Decree:
Are you satisfied with such proceedings in view of the saying that Problem of a litigant commences from the passing of a decree?
Kindly Guide me.
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Are you satisfied with such proceedings in view of the saying that Problem of a litigant commences from the passing of a decree?
It is a well-settled principle of law that Decree Holders must enjoy the fruits of the decree obtained by them in an expeditious manner. Though judges must curb the the unscruplous tactics used by Judgment Debtors to evade the process of law and eventually frustrate the entire efforts of a Decree Holder in getting the decree executed. In relation to the difficulties faced by a decree holder in execution of the decree, in 1872, the Privy Council had observed that
“.......the difficulties of a litigant in India begin when he has obtained a Decree......”.
Even today, in 2013, the position has not been improved and still the decree holder faces the same problem which was being faced in the past. For instance, we are often concerned with the cases of the appellants-plaintiffs who had succeeded in Civil Appeals and cases years ago. Though, decrees are drawn in pursuance of judgments but till today, the decree-holders are not in a position to get the fruits of their success. Therefore, the Privy Council had aptly observed that the difficulties of a litigant in India begin when he has obtained a Decree.
Even in 1925, while quoting the afore-stated judgment of the Privy Council in the case of Kuer Jang Bahadur vs. Bank of Upper India Ltd., Lucknow [AIR 1925 Oudh 448], the Court was constrained to observe that
“Courts in India have to be careful to see that process of the Court and 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 afore-stated observation made in 1925, the Apex Court of Pakistan has time and again constrained to observe in its judgments 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......”
“In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff (decree-holder) will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.”
As stated hereinabove, the position has not been improved till today. Hence, 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. It can only be done if the Executing Courts are compelled to do the needful at an early date so as to see that the long drawn litigation which was decided in favour of the appellant is finally concluded and the decree-holder gets effective justice. For that purpose the executing court can take the help of section 74 of CPC that is given below:
Resistance to Execution
Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser,
order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and
may further direct that the decree-holder or purchaser be put into possession of the property.
Regards
---F@SsI---