DELAY IN DISPOSAL OF EXECUTION PROCEEDINGS AND UNDERLYING TEST FOR AN EXECUTING COURT IN GOING BEHIND THE DECREE

Delay in disposal of cases has always been a serious concern in India. “A litigant coming to court seeking relief is not
interested in receiving a paper decree, when he succeeds in establishing his case. What he wants is relief.” Above
observation made by the Privy Council in 1872 and reiterated by Hon’ble Apex Court in 2009 speaks a lot about the
plight of litigants in India. Decision of an execution application takes more time than that of a suit. As on 31.12.2018,
as many as 11, 80,275 execution petitions were pending in subordinate courts of the country which figure has rose to
15, 16,629 in November, 2021. Supreme Court has directed that efforts be made to dispose of all the cases which are
more than five years old by the end of the year 2017. However, above goal is far away from reality to be reached.
'Third party objections' though permissible under the Code, are significant hindrance against execution of decree. The
judgment debtor generally creates every possible hindrance against execution of a decree by playing camouflage with
the provisions of law. If seen pragmatically 'Civil Executions' is considered to be the most difficult topic for a law
student to prepare, in turn for a lawyer to pursue and ultimately for the executing agencies to practice it into reality.
Though the Apex Court and different high courts have illustrated various instances where an executing Court can go
behind the decree in executing the same however, no exhaustive list of such circumstances can be prepared. An
underlying test is required to be laid for guidance of executing courts in determining the circumstances where it can
go or it cannot go behind the decree. A subtle perusal of series of precedents would suggest that an objection for want
of territorial jurisdiction does not travel to the root of action or to the inherent lack of jurisdiction of civil Court to
entertain a suit. Hence, it is required to be raised at earliest opportunity before Court of first instance and in cases
where issues are settled, such an objection must be raised before issues are settled. Where there is consequent failure
of justice, such an objection can be entertained. The objection as to pecuniary jurisdiction of Court also do no travel
to root of action unless injustice is proved by a party raising such an objection at a later stage. Where the objection
relates to inherent lack of jurisdiction of the Court to entertain it in respect of its subject matter, the same will travel
to the root of the matter giving a liberty to the executing Court in going behind the decree.