DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

CODE OF CIVIL PROCEDURE

CRITICAL REVIEW ON TRANSFER OF DECREE

NAME OF THE FACULTY

Dr. N. BHAGYALAKSHMI

G. ARTHI

19LLB102 & Semester V

 TABLE OF CONTENTS

Acknowledgements………………………………………………………………...2

Introduction………………………………………………………………………...3

Transfer of Decree for

Execution…………………………………………………...7

General Principles…………………………………………….…………………….9

Case
Analysis……………………………………………………………………...12

 Sultana Begum v. Prem Chand Jain

 Abdul Gafoor v. Saktan Kuries and Loans (p) Ltd
 Abdul Rahman v. Prasony Bai

Conclusion………………………………………………………………...………23

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 ACKNOWLEDGEMENTS

I would like to express my gratitude and heartfelt appreciation to my teachers who gave me the
golden opportunity to do this wonderful project on this interesting topic; which helped me learn,
analyze and explore this specific field of subject by digging deeper into the never ending mine of
knowledge through an extensive and thorough research.

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 INTRODUCTION

Initiation of litigation, adjudication of litigation, and execution of litigation are the three stages of
litigation. Execution refers to the last step of litigation, which is when the case is put into action.
Once a court has issued a decree or judgement, it is the responsibility of the person against whom
the judgement was issued (judgment-debtor) to give effect to the decree so that the decree-holder
can profit from the decision. A judgment-debtor is obliged to carry out the decree or order's
requirement via execution. Giving effect to a court of justice's order or verdict is referred to as
execution. The execution is complete when the decree-holder receives the object awarded to him
by judgement, decree, or order.

Courts which can execute decrees

A decree can be implemented by either the Court of First Instance or the Court to which it has
been sent for execution, according to Section 38 of the Code. The scope of the word court which
passed a decree is further defined in Section 37 of the Code, with the goal of allowing a decree-
holder to collect the decree's fruits. The courts which fall within the said expression are as
follows:

1. “The court of the first instance;

2. The court which actually passed the decree in case of appellate decrees;

3. The court which has jurisdiction to try the suit at the time of execution, if the court of
first instance ceased to exist;
4. The court which at the time of execution had jurisdiction to try the suit, if the court of
first instance has ceased to have jurisdiction to execute the decree.”

Even if any region is moved from the jurisdiction of the court of first instance to the
jurisdiction of another court, the court of first instance has authority to implement a decree.
In such circumstances, the court to whose jurisdiction such region has been transferred will
likewise have jurisdiction to execute the decree, assuming that the said court had jurisdiction
to try the action at the time the motion for execution was filed.

3
Execution of Foreign Decrees in India

The Code establishes the method for foreign judgements and decrees to be carried out in India.
When implementing a foreign judgement or decree in India, it is important to make sure that the
judgement or decree is final, based on the facts of the case, and issued by a court with authority.

 Foreign Judgment and Foreign Decree

A foreign judgement is defined in Section 2 (6) of the CPC as a decision of a foreign court. A
foreign court, according to section 2(5) of the CPC, is one that is located outside of India and is
not formed or maintained by the Central Government.

Explanation II to section 44A of the CPC defines a foreign decree as a decision or judgement of
such court that mandates the payment of a quantity of money. Such a quantity of money,
however, must not be paid in lieu of taxes or other charges of a similar character, or in lieu of
any penalty or punishment. Even if an arbitral decision is enforceable as a decree or judgement,
it should not be included.

A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays down
the test for conclusiveness of a foreign judgment or decree, which says that a foreign judgment
would be conclusive in all cases except the following;

1. “When a court of competent jurisdiction has not pronounced it;

2. When it has not been pronounced on the merits of the case;

3. When it has been based on a wrong view of international law or a refusal to recognize the
law of India in cases in which such law is applicable;

4. When the proceedings carried out while obtaining the judgment are opposed to natural
justice;

5. When such judgment has been obtained by fraud;

6. When it sustains a claim that had been based on a breach of any law in force in India.”

4
As a result, a foreign judgement or decree must pass all seven of the aforementioned conditions.
Otherwise, such a foreign judgement or decree cannot be implemented in India since it will not
be considered conclusive if any of these requirements are not met.

Mode of enforcement of a foreign judgment or decree

Two ways in which a decree or foreign judgment can be enforced in India are as follows:

 Where the decree or judgment has been given by a court in a reciprocating territory;

 Where decree or judgment has been given by a court in a non-reciprocating territory.

Execution of foreign decree of a reciprocating territory in India

A decree of any higher court of a reciprocating territory should be implemented in India as if it

had been passed by the district court, according to Section 44A of the CPC. Any area or nation
outside India that the Central Government has proclaimed to be a reciprocating territory by
notice in the Official Gazette is referred to as a reciprocating territory, and higher courts refers to
the courts that are named in the said notification.

As a result, by submitting an execution application, a decision rendered by a court of a

reciprocating territory can be implemented in India as an Indian decree. A certified copy of a
decree issued by any superior court of a reciprocating territory should be submitted in a District
Court; once this is done, the decree will be executed as if it had been issued by the District Court
of India, and the requirements of Order 21 of the CPC would apply to the decree.

The original certified copy of the decree must be included with the execution application,
accompanied with a statement from the superior court detailing the degree to which the decision
has been complied or changed.

Execution in case of decrees from non-reciprocating territories

If a foreign judgement or decree has not been proclaimed by a reciprocating territory's court, it
can only be enforced if a new suit on that foreign judgement is brought in an Indian court with
sufficient authority to hear the matter.

5
In Marine Geotechnics LLC vs. Coastal Marine Construction & Engineering Ltd. 1, the
Bombay High Court held that when a decree is issued by a court in a non-reciprocating foreign
territory, it cannot be enforced unless the decree-holder files a new suit on the foreign decree, the
original cause of action, or both. Within three years after the date of the judgement or decision,
the suit must be filed. The person seeking execution must establish that the foreign decree meets
Section 13's requirements.

The court went on to say that Section 13 of the Code is substantive legislation, while Section
44A is an enabling clause that allows a decree-holder to carry out a decree acquired from a
reciprocating territory's court. The fundamentals of private international law are explicitly stated
in Section 13, which states that a court will not execute a foreign decision of a competent court.

Execution of Indian decrees in a foreign territory

Section 45 of the Code deals with the enforcement of decisions outside of India's borders. It
provides that a court has the ability to submit a decision for execution to a court created by the
Central Government authorities outside of India. It should be verified that the State has stated
that the aforementioned section can apply to such Court by announcement in the Official
Gazette. A plain reading of the aforesaid provision yields the following features:

1. “The decision that must be carried out must be issued by an Indian court and must be for
the purpose of being carried out in a foreign country.
2. The transferee court should have been created by the central government in such a
foreign area.
3. The State Government should have announced in the Official Gazette that this provision
applies to the aforementioned foreign Court.”

As a result, the clause specifies the requirements for the execution of an Indian decision outside
of India. In the absence of either of the aforementioned circumstances in Section 45, an Indian
court lacks the authority to submit its decree for execution to a court outside of India.

1
2014 (183) CompCas 438 (Bom)
6
 TRANSFER OF DECREE FOR EXECUTION

Section 39 of the Act states that if a decree-holder applies to the court of first instance to have
the decree sent to another court for execution, the court of first instance may do so if any of the
following circumstances exist:

1. “if the judgment-debtor does business, lives, or works for a living within the jurisdiction
of such Court;
2. if the judgment-property debtor's is not subject to the jurisdiction of the Court of first
instance but falls within the local limits of such Court's jurisdiction;
3. if the judgment-property debtor's is not subject to the jurisdiction of the Court of first
instance but falls within the local limits of such Court's jurisdiction;
4. if the order requires the delivery or sale of immovable property that is located outside the
jurisdiction of the court that issued it;
5. if the court that issued the order believes that the decree should be carried out by a
different court, it must record the reasons in writing.”

Section 39(2) specifies that the Court of First Instance may refer it to any subordinate court of
competent jurisdiction for execution suo motto. The Section further indicates that if the decree is
being carried out against a person or property that is not within the geographical jurisdiction of
the court that issued the decree, that court has no authority to carry it out. The Supreme Court
ruled in Mahadeo Prasad Singh v. Ram Lochan that Section 39's provisions aren't required since
the court would have judicial discretion in the case. The bearer of the decree would have no
vested or substantive right to have the decree transferred to another court.

A decree can be carried out by either the court that issued it or the court to which it was sent for
execution. Section 39 outlines the procedures for transferring a decree by the court that issued it,
as well as the requirements that must be met. The provisions of Section 39, on the other hand, are
not required, and the court has discretion in the case, which it shall use judicially 2. The decree
holder has no substantive or vested right to have the decree transferred to another court. The
decree-holder has the right to file a transfer application, which is purely a procedural right.
2
Manmatha Pal Choudhury v. Sarada Prosad Nath, AIR 1981 SC 416.

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In general, the court that issued the decree is the one to carry it out, but if any of the following
grounds apply, that court may refer the decree for execution to another court suo motto (on its
own initiative) or on the petition of the decree-holder.

1. “The judgment-debtor actually and voluntarily resides or carries on business, or

personally works for gain, within the local limits of the jurisdiction of such court; or
2. The judgment-debtor does not have property sufficient to satisfy the decree within the
local limits of the jurisdiction of the court which passed the decree but has property
within the local limits of the jurisdiction of such other court; or
3. The decree directs the sale or delivery of immovable property situate outside the local
limits of the jurisdiction of such other court; or
4. The court which passed the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court.”

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 GENERAL PRINCIPLES

With regard to the powers and duties of executing courts, the following fundamental principles
should be borne in mind:

1. As a general rule, a court's territorial jurisdiction must be established before it may issue
a decree, hence no court can issue a decree in respect of property that is wholly outside
of its jurisdiction.
2. The decree cannot be overturned by an executing court. It must accept the decree as is
and carry it out in accordance with its contents. It does not have the authority to change
or alter the terms. It has no authority to call into question its legality or accuracy. This is
founded on the premise that a process to enforce a decision is incidental to the
judgement, and hence no investigation of the judgment's regularity or correctness may
be allowed in such a case.
3. In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its
invalidity could be set up wherever and whenever it is sought to be enforced, whether in
execution or in collateral proceedings3. In such a case, there is no question of going
behind the decree, for really in the eye of the law there is no decree at all.
4. However, an inherent lack of jurisdiction must be shown on the face of the record. As a
result, if the decree on its face reveals any information on which the court may have
made its decision, it is lawful. In this instance, the executing court must accept and carry
out the decree in its current form and cannot depart from it. Allowing the executing
court to exceed that limit would elevate it to the status of a superior court hearing an
appeal from the decree-making court's judgement.
5. On the death of the decree-holder or the judgment-debtor, a decree that is otherwise
valid and executable remains valid and enforceable against his legal representatives.
6. When the terms of a decree are vague or ambiguous, an executing court can construe the
decree to ascertain its precise meaning. For this purpose, the executing court may refer
not only to the judgment, but also the pleadings of the case4.

3
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.

4
Bhavan Vaja v. Solanki Hanuji Khodaji, AIR 1972 SC 1371.
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7. An executing court can investigate the decree's executability or otherwise, and
determine whether the decree has ceased to be executable according to its provisions as
a result of any later events.
8. A decree that becomes ineffective by operation of law may be made executable by a
future statutory modification, and can then be carried out.
9. The executing court has the authority to modify the plaintiff's remedy in light of new
information.
10. The court that is enforcing the decree that has been transferred to it has the same
authority as if it had issued the order itself.

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 CASE ANALYSIS

Sultana Begum v. Prem Chand Jain; (1997) 1 SCC 373

Facts

The appellant is the landlady of the premises, "Pink City Hotel," Mumtaz Bagh, Jaipur, which
was occupied by the respondent as a tenant and against whom a suit for eviction was filed on
various grounds, including default in rent, sub-letting, and bona fide requirement, which
eventually ended in a compromise on September 16, 1991. The compromise decree issued on
that date stated that the respondent would vacate the premises and hand it over to the appellant or
her attorney, Ramesh B. Sharma, by February 10, 1992, and that he would pay rent at the rate of
Rs. 3,100/- per month from the date of the suit until the date of delivery of possession.

Because the respondent had not vacated the premises and possession had not been transferred to
the appellant in accordance with the compromise decree, she filed an application for execution,
which was opposed by the respondent through objections filed under Section 47 of the Code of
Civil Procedure, in which he claimed that possession of the premises in question had been
transferred to Ramesh B. Sharma on October 31, 1991, who, however, allowed the respondent to
remain in possession. It was argued that because Ramesh B. Sharma, the appellant's lawfully
constituted attorney, was given possession of the disputed premises, the decree was fulfilled and
hence could not be carried out. It was further argued that the respondent had previously paid the
licence price of Rs. 5,000/- to Ramesh B. Sharma, who had also given him a receipt, under the
provisions of the new licence.

In response, the appellant stated that the power of attorney she had signed in favour of Ramesh
B. Sharma had been revoked by notice dated December 1, 1991, and that Ramesh B. Sharma was
obliged not to operate as the appellant's attorney in any way by another notice dated January 31,
1992. It was argued that because Ramesh B. Sharma's power of attorney had already been
revoked, there was no reason for the respondent to hand over possession of the premises in
question to Ramesh B. Sharma, and Ramesh B. Sharma could not create a new licence in his
name.

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The trial Court allowed the respondent's objections in so far as they related to the delivery of
vacant possession of the premises in question to the appellant, finding that the respondent had
already delivered vacant possession to Ramesh B. Sharma, who was still the appellant's legally-
constituted attorney on the relevant date, namely the date on which possession was delivered by
respondent to Mr. Sharma, which date he was still the appellant's legally-constituted attorney.
The trial court further determined that Ramesh B. Sharma may properly generate a new licence
in the respondent's name and provide receipts for the Rs. 5,000/- per month licence price paid to
him. The trial court determined that the order was no longer executable based on these
circumstances.

The appellant filed a Revision with the Rajasthan High Court, which dismissed it by decision and
decree dated September 21, 1993. The trial court's conclusions were affirmed, as was the
decision that Order XXI, Rule 2 of the Code of Civil Procedure did not apply to the facts of the
case. In light of these facts, the appellant has filed an appeal with us.

Issue

The appellant filed a Revision with the Rajasthan High Court, which dismissed it by decision
and decree dated September 21, 1993. The trial court's conclusions were affirmed, as was the
decision that Order XXI, Rule 2 of the Code of Civil Procedure did not apply to the facts of the
case. In light of these facts, the appellant has filed an appeal with us.

Arguments of petitioner

Learned counsel for the appellant has contended that the agreement set out by the respondent in
his objections under Section 47 CPC that possession of the disputed premises was handed over
to the appellants attorney in pursuance of the compromise decree and that the appellants attorney
allowed him to stay on in the premises as a licensee on payment of the license fee at a rate which
was more than the rate at which the rent was paid by the respondent, amounted to an adjustment
of the decree within the meaning of Order XXI, Rule 2 CPC and, therefore, it could not be
recognized by the executing Court in view of the bar created by sub-rule (3). The decree, it is
contended, was still executable and should have been executed by the executing Court which

12
was in error in relying upon the respondent’s plea that possession of the premises in question
was delivered to the appellants attorney and the decree for eviction stood satisfied.

Arguments of respondent

Learned counsel for the respondent, on the contrary, contended that in view of Section 47 CPC,
which specifically lays down that all questions relating to execution, discharge or satisfaction of
decree shall be determined by the Court executing the decree, it was open to the respondent to
raise the plea regarding the in executability of the decree and the executing Court was under an
obligation to decide the question whether the decree was inexecutable as possession had already
been delivered to the attorney who had re-inducted him in the premises in question as a licensee.

Reasoning

On a conspectus of the case law indicated above, the following principles are clearly discernible;

(1) It is the duty of the Courts to avoid a head on clash between two Sections of the Act and
to construe the provisions which appear to be in conflict with each other in such a manner
as to harmonize them.
(2) The provisions of one Section of a statute cannot be used to defeat the other provisions
unless the Court, in spite of its efforts, finds it impossible to effect reconciliation between
them.
(3) It has to be borne in mind by all the Courts all the time that when there are two
conflicting provisions in an Act, which cannot be reconciled with each other, they should
be so interpreted that, if possible, effect should be given to both. This is the essence of
the rule of "harmonious construction".
(4) The Courts have also to keep in mind that an interpretation which reduces one of the
provisions as a "dead letter" or "useless lumber" is not harmonious construction.
(5) To harmonize is not to destroy any statutory provision or to render it otiose.

Interpreting the provisions of Section 47 and Order XXI, Rule 2 in the light of the above
principles, there does not appear to be any antithesis between the two provisions. Since Section
47 provides that the question relating to the execution, discharge or satisfaction of the decrees

13
shall be determined by the Court executing the decree, it clearly confers a specific jurisdiction
for the determination of those questions on the executing Court.

There are three components of this plea. The first is the delivery of possession by the respondent
to the appellants attorney the second is the conferment of the status of a licencee on the
respondent so that he may continue to occupy the premises in question on payment of licence fee
at a higher rate; and the third is the actual payment against receipt indicating that the agreement
was acted upon. “In the instant case, the respondent himself says that it was only a licence
which was created in his favour and that he had to pay the licence fee. This itself is indicative of
the fact that a fresh lease was not created in his favour and consequently the rights under the
decree were neither intended to be surrendered nor were they actually surrendered. The decree
remained preserved and the creation of a licence had not the effect of destroying it”

Judgement

In view of the above, the appeal is allowed, the judgment and order passed by the executing
Court as also by the High Court are set aside and the objections filed by the respondent under
Section 47, CPC are dismissed with a direction to the executing Court to proceed with the
execution of the decree and deliver possession to the appellant.

The appellant shall be entitled to her costs throughout from the respondent.

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Abdul Gafoor v. Saktan Kuries and Loans (p) Ltd; AIR 2003 Ker 235

Facts

This matter has been placed before us on a reference made by one of us, K.Padmanabhan Nair, J.
doubting the correctness of the decision in Sreedharan Nair v. Marakkar,1987 (2) KLT 492. The
learned single judge who decided Sreedharan Nairs case took the view that R.277 of the Civil
Rules of Practice would give the decree holder six months’ time from the date of receipt of the
decree by the transferee court to apply for execution even if 12 years period as contemplated
under Art.136 of the Limitation Act, 1960 for execution of the decree is over.

Court below applying the dictum laid down in the above-mentioned case held E.R 323/99 is
maintainable even though filed after a period of 12 years, the correctness of which is under
challenge in this case.

Respondent herein filed O.S. 5/86 claiming an amount of Rs.12,232. An exparte decree was
passed on 19.8.1987 in favour of the plaintiff. Decree holder plaintiff filed E.R 1181/99 on
18.8.1999 before the Munsiff Court, Trichur for transferring the decree to Munsiff Court,
Chavakkad. Application was allowed by the Munsiff, Trichur on 1.9.1999 transmitting the
decree to the Munsiff Court, Chavakkad. The period of 12 years for executing the decree in O.S.
5/87 dated 19.8.1987 expired on 19.8.1999.

Decree holder filed E.R 323/99 before Munsiff Court, Chavakkad on 13.10.1999. Objection was
raised by the judgment debtor stating that E.R has been filed beyond 12 years from the date of
the decree as provided under Art.136 of the Limitation Act, therefore liable to be dismissed as
barred by limitation. Munsiff Court, Chavakkad placing reliance on the decision in Sreedharan
Nairs case overruled the objection and held that the application is maintainable.

Issue

Court below applying the dictum laid down in the above-mentioned case held E.R 323/99 is
maintainable even though filed after a period of 12 years, the correctness of which is under
challenge in this case.

Objection was raised by the judgment debtor stating that E.R has been filed beyond 12 years
from the date of the decree as provided under Art.136 of the Limitation Act, therefore liable to

15
be dismissed as barred by limitation. We may examine whether the application for transfer of a
decree would amount to an application for execution.

Arguments of Petitioner

Counsel appearing for the judgment debtor submitted that the decision in Sreedharan Nairs case,
requires reconsideration. Counsel took us through various provisions of the Limitation Act and
also placed reliance on the decision of the Apex Court in West Bengal Essential Commodities
Supply Corporation v. Swadesh Agro Farming and Storage Pvt. Ltd 5; wherein it has been held
if the time is reckoned from the date of the decree but from the date when the decree is prepared
it would amount to doing violation to the provisions of the Limitation Act as well as 0.21 R.11
CPC which is clearly impermissible.

Arguments of Respondent

Counsel appearing for the respondent placing reliance on the decision of the learned single judge
of this Court in 1958 KLT 357 and contended that the transferrer court in passing the order to
send the decree for the purpose of execution to the transferee court be deemed to have decided
against any limitation so far as the further execution of the decree is concerned and that the
transferor court is acting judicially.

Reasoning

The Gujarat High Court in State of Rajasthan v. R. Savkasha6, held that an application for
transfer of decree is not an application for execution. The jurisdiction to entertain the execution
application after the decree has been transferred vests in the transferee court even if the copy of
the decree has not been received by it.

In Pravagdas Shankerlal v. Indirabai7 it was held that an application to transfer a decree to

another Court for execution is not an application for execution but only a step-in aid of
execution. It only asks that the decree be transferred to another court to enable it to be executed.
The court held a further application would be necessary in the transferee Court.

5
(1999) 2 SCC 315
6
AIR 1972 Guj.179
7
AIR 1948 Nag. 189
16
In Devi Das v. MD. Akbar Khan8 the court held that an application for transfer of a decree for
execution is not a substantive application for execution. The transmission order is a ministerial
and not a judicial order and an order passed by the transferring Court is not a final adjudication
on limitation and an application for execution filed in the transferee Court more than 12 years
after the decree is beyond time and cannot be considered a continuation of the prior applications
before the transferring Court.

In Rulia Ram v. Diwan Chand9 the Lahore High Court has taken the view that in a case where
decree is transferred, application for execution must be made to transferee Court and not to
parent Court. The above being the legal position, we are of the view if an application for transfer
of decree for execution to the transferee court is not an application for execution. R.277 has been
framed by the High Court of Kerala in exercise of the powers conferred under S.122 of the Code
of Civil Procedure, 1908 cannot override the provision of the Limitation Act, which is a central
legislation enacted by the Parliament.

Decree holder if failed to submit application for execution within the period of six months from
the date of receipt of decree by the transferee court it would submit the fact to the transferor
Court. Application for execution has to be filed in the transferee court subject to period
prescribed under Art.136 of the Limitation Act failing which the decree would become
inexecutable, being hit by the Law of Limitation.

Judgement

The Supreme Court overruled the decision in Sreedharan Nairs case. Application for execution
was admittedly filed beyond 12 years as prescribed under Art.136 of the Limitation Act and
hence liable to be dismissed as not maintainable. Consequently, order passed by the executing
court would stand set aside and we hold that application for execution would stand dismissed.
We therefore allow this revision and set aside the impugned order. The reference is answered
accordingly.

8
AIR 1935 Lah. 508
9
AIR 1934 Lah. 728
17
Abdul Rahman v. Prasony Bai; (2003) 1 SCC 488

Facts

Mangal Singh (since deceased) and the 1st Respondent herein, were originally residents of
Pakistan. As a displaced person in India, Mangal Singh was allotted land measuring 11 bighas 16
biswas in Village Shorba, Tehsil Kishangarbas, District Alwar. The said Mangal Singh died,
whereafter a report was made by the village Patwari on or about 31.3.1978 to the effect that he
had died intestate without any heir. Pursuant thereto and in furtherance thereof, escheat
proceedings were initiated by the Tehsildar, Kishangarbhas on or about 12.3.1979. The
possession of the land in question was taken by the Patwari from the 1st Respondent on
28.3.1979. A part of the land in question was allotted to the appellant by the Tehsildar on
11.5.1979.

The 1st Respondent herein questioned the said allotment of land made in favour of the appellant
herein. The additional Collector by his order dated 24.8.1979 set aside the order of taking
possession and restored possession thereof to Prasony Bai, the 1st Respondent herein, and
cancelled the allotment of land to the appellant. Against the said cancellation order dated
24.8.1979 made in favour of the 1st Respondent, an appeal was preferred by the appellant herein
before the Board of Revenue.

A mutation proceeding was also initiated for mutating the name of the 1st Respondent which was
also contested by the appellant. The name of the 1st Respondent was ultimately directed to be
mutated by order dated 31.5.1993 by the Board of Revenue. An application for review was filed
there-against by the appellant but the same was also dismissed by order dated 14.6.1999.
Although it does not appear from the records, the appellant herein in his written submissions,
(although not contended in oral argument) alleges that the escheat proceeding is still pending.

A letters patent appeal field by the appellant herein being D.B. Civil Special Appeal (Civil) No.
191 of 2001 was dismissed by a Division Bench of the High Court by order dated 4.12.2001
holding:

“... We find that in the facts of the case, the learned Single Judge has rightly applied the
principle of constructive res judicata. The real controversy was with regard to the same property
and the same parties were litigating throughout. The present appellant having failed to establish
18
his claim of allotment and such allotment having been cancelled by the orders of the competent
courts, which was upheld by the High Court has again restored to file a suit afresh against
respondent Prasony Bai, this time in the guise of showing that she was not the daughter of
Mangal Singh. This issue was also substantially involved in the revision petition. Once it is
found that present appellant was entitled to have allotment in his name, the allotment had been
cancelled, he admittedly has to no locus standi now to challenge the fact that Smt. Prasony Bai
was not the daughter of Mangal Singh.

In the facts and circumstances of the case, we find that the learned Single Judge has rightly
exercised the powers under Section 151 read with Section 24 of Code of Civil Procedure so as to
put an end to the abuse of process of the court and to bring end of the frivolous litigation. In our
opinion, such an approach was necessary in the facts and circumstances of the present case.
Facts of the present case depict a very dismal state of affairs in which party having litigious
perseverance has already been able to prolong the matter had to keep the controversy alive for
more than 24 years by move and is still desirous to continue third round of litigation.

Litigious perseverance is not to be rewarded rather it is to be discouraged. In our opinion

learned Single Judge has rightly exercised the power under Section 151 read with Section 24 of
Code of Civil Procedure. In the facts and circumstances such an approach is the need of the
hour. There is no merit in this special appeal. The same is hereby dismissed.”

Hence, this petition for grant of special leave to appeal to this Court has been filed questioning
the said order.

Issues

Mr. Sharan has strongly relied upon a decision of this Court in Khushro S. Gandhi & others vs.
N.A. Guzder (dead) by L.Rs. & Others 10 but the said decision is not applicable to the facts of the
case inasmuch as therein no order in terms of Section 24 of the Code of Civil Procedure was
passed.

The question which arose for consideration in the said case was as to whether an interim order
could be passed in a pending civil revision application which had nothing to do with the issue
involved therein.
10
AIR 1970 SC 1468
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Arguments of Petitioner

Mr. Amarendra Sharan, learned senior counsel appearing on behalf of the appellant, had raised
the following contentions in support of this appeal:

(1) The High Court had no jurisdiction to withdraw the suit and dispose of civil revision
application purported to be in exercise of its power under Section 24 of the Code of Civil
Procedure;
(2) In any event, the procedure for determining the issues in the suit having not been
followed by the High Court, the impugned order must be held to be without jurisdiction;
(3) As the revenue court had no jurisdiction to adjudicate upon the question of status, the
principles of res judicata cannot be said to have any application whatsoever.

Mr. Sharan submitted that the appellant herein was a tenant of Mangal Singh. According to the
learned counsel, although it is not disputed that the said Mangal Singh was the original allottee,
as the appellant had been cultivating the land in question, he acquired title by adverse possession.
According to the learned counsel, the proceedings for cancellation of allotment could not have
been initiated by the 1st Respondent as she was an imposter.

In the aforementioned situation, it was urged that the Board of Revenue could not have
determined the said question as regards the status of the 1st Respondent vis-a-vis original
allottee, Mangal Singh, and thus the impugned judgment cannot be sustained. 16. It may be true
that normally the High Court does not pass an order under Section 24 of the Code of Civil
Procedure in a disposed of proceeding. However, in terms of Section 24 of the Code of Civil
Procedure, indisputably the High Court had the requisite jurisdiction to withdraw any suit
pending in any court subordinate to it and try or dispose of the same inter alia on its own motion,
wherefor even no notice is required to be issued.

Reasoning

A bare perusal of the said provision leaves no manner of doubt that the High Court had the
requisite jurisdiction to suo moto withdraw a suit to its file and adjudicate itself all or any of the
issues involved therein.

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The Supreme Court, therefore, in the aforementioned premise, do not find any substance in the
contention of Mr. Saran that the High Court had no jurisdiction to withdraw the suit on its own
file for its disposal.

In the peculiar facts and circumstances of the case, therefore, if the learned Single Judge of the
High Court had withdrawn the suit and disposed of the same on the admitted facts; we do not
find any illegality therein. The learned Single Judge as also the Division Bench have held that
the suit was not maintainable, inter alia, on the ground that the appellant herein had no locus
standi to question the relationship of the 1st Respondent with the admitted owner of the property,
namely, Mangal Singh.

The appellant must be held to have taken recourse to abuse of process of court underlying the
principle that the litigation should be allowed to attain finality in public interest. Although the
concept of issues estoppel or estoppel by records are distinct and separate from the concept of
abuse of process in public interest, the court may refuse the plaintiff from pursuing his remedy in
a court of law.

No case has been made out for interference with the impugned judgment in exercise of
jurisdiction of this Court under Article 136 of the Constitution of India, even it be held that the
High Court had committed some irregularities in withdrawing the suit and disposing the same.

Judgement

The Supreme Court did not find any merit in this appeal. The appeal was accordingly dismissed
with costs.

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 CONCLUSION

In general, the court that issued the decree is the one responsible for carrying it out; but, if any of
the following conditions exist, that court may refer the decree for execution to another court suo
motto (on its own initiative) or on the petition of the decree-holder.

It is obvious from the preceding description that execution refers to carrying out, enforcing, or
giving effect to a court of justice order or verdict. Order 21 contains rules that apply to a variety
of situations and give appropriate remedies to judgement debtors, claimant objectors, and other
parties other than the decree-holder. The implementation of a decree through a legal process
allows the decree-holder to reap the benefits of the decree pronounced in his favour by the
competent Court. All execution processes begin with the filing of an application for execution.

The court that issued the decree or the court to which it was referred for execution can carry out
the decree. The processes for transferring a decree by the court that issued it, as well as the
conditions that must be completed, are outlined in Section 39. The stipulations of Section 39, on
the other hand, are not necessary, and the court retains judicial discretion in the matter. The
bearer of the decree has no substantive or vested right to have it transferred to a different court.
The decree holder has the procedural right to file a transfer application.

The rights of judgement debtors are also protected under the Code. The Code also provides for
several forms of decree execution, including as arrest, custody of the judgment-debtor, surrender
of possession, attachment of property, sale, partition, appointment of receiver, and payment of
money, among others. As a result, the provisions become effective or capable of providing
redress to a person that has been wronged.

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