The Difficulties Of A Litigant In India Begin When He Has Obtained A Decree

M Dutta

10 May 2020 4:56 AM GMT

  • The Difficulties Of A Litigant In India Begin When He Has Obtained A Decree

    India's lethargic judicial system requires no introduction. The infinite time consumed in adjudicating a case is equally well known. However, that is just one aspect. What about the other, post a decree? After years of struggle in obtaining a decree, does a litigant finally succeed in obtaining the fruits or relief granted by such decree? Or is it an equally long and a further...

    India's lethargic judicial system requires no introduction. The infinite time consumed in adjudicating a case is equally well known. However, that is just one aspect. What about the other, post a decree? After years of struggle in obtaining a decree, does a litigant finally succeed in obtaining the fruits or relief granted by such decree? Or is it an equally long and a further infinite process that awaits a Decree-Holder? The Code of Civil Procedure 1908, dedicates an entire Order defining the methods and modes of Execution. It is an exhaustive and elaborate Order containing 106 Rules. Despite such a detailed prescription, is it of any recourse, avail or relief? Or is it another labyrinthine journey through the unforeseen complexities of legalese?

    Even before the enactment of the Code of Civil Procedure and more than a century earlier, the Privy Council1 in capturing the woes and the travails of a Decree-Holder held – "the difficulties of a litigant in India begin when he has obtained a decree". History is witness and provides adequate testimony whether or not there has been any reduction or removal in "the difficulties of a litigant". In 1925, the Privy Council2 again reiterated its concern, by holding – "Courts in India have to be careful to see that the process of the Court and the law of procedure are not abused by 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."

    This concern has been consistently repeated and recorded by the Supreme Court in successive pronouncements made over the years in 19823, 19994 and 20095. In Satyawati vs. Rajinder Singh and Another6, the Supreme Court after recording that despite a Plaintiff having successfully obtained a decree in January 1996, was yet to secure the fruits of such decree in the year 2013 lamented – "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". Finally, after analyzing and reiterating the existing case - law, the Supreme Court summarised and expressed its findings, as – "…the position has not been improved till today. We strongly feel that there should not be an 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".

    Further as part of its wishful thinking, the Supreme Court wished and desired – "We are sure that the executing court will do the needful at an early date so as to see that the long-drawn litigation which was decided in favor of the appellant is finally concluded and the appellant plaintiff gets effective justice". Evidently, in that case till the decision rendered by the Supreme Court on 29th of April 2013, the Party in question/ Decree- Holder had not obtained any relief under the Decree despite the lapse of seventeen long years. We are however unaware, whether the Party/ Decree- Holder finally obtained any relief and if it did, when?

    It would be ignoble, treacherous and a disservice, if we continue to disregard and ignore such an apparent glaring failure in our justice delivery system. If we are to ensure that "the entire effort of a successful litigant" is not in vain and if we are to further ensure that a litigant "gets effective justice", can we continue with our wishful thinking by issuing summary directions premised on fond hope and expectations?

    Obviously, we cannot and our justice delivery system requires an immediate overhauling, if not a complete change with the previous system exhaustively uprooted from its roots. Otherwise, the very purpose and essence of a litigation contest would lose its meaning and reason. This state of affairs cannot continue and our justice delivery system cannot remain a silent or mute spectator to this cruel joke being consistently hurled to those reposing faith, trust and confidence in our justice delivery system.

    These worries and concerns were the subject matter of discussion and examination in Shubh Karan Bubna vs. Sita Saran Bubna and Others7. After listing and recording the manner and mode in which a case progresses from- i) inception to decree and ii) from decree to execution/or the availment of final relief, the Supreme Court suggested the immediate embracement of various reforms and steps. Relying on the adage, that for a successful cure a successful diagnosis is a "sine - qua – non", it listed the evident ills as under - a) the existence of a pause between a Decree and Execution which result in segregation of cases into different or multiple categories; b) a firm belief and understanding amongst judicial Officer(s) and Court(s) that the "real" and
    "actual" judicial function is the process of adjudication, while the post decretal/execution proceedings are mere "ministerial functions"; c) the existing focus and might being confined only on early disposal of cases but not on early and easy procurement of relief; d) a similar and likewise mindset amongst lawyers, with the entire focus confined to the adjudicatory process with little or no emphasis given to procurement of relief; and lastly e) on many occasions it has been discovered that a Party/or litigant has been thoroughly exhausted in obtaining a decree, with little or no means available to pursue execution for availing the final relief.

    Upon noticing the ills, the following self-correctional and legislative changes by way of amendments in the existing Code of Civil Procedure were suggested-

    • Firstly, a complete change in attitude and treatment both by the Courts and the Lawyers alike, wherein judges should not "believe that adjudication of the right being the judicial function they should concentrate on that part" alone;
    • Secondly, Judges and Lawyers should bestow equal and sufficient focus on "ensuring that the litigant gets the relief";
    • Thirdly, for Courts and Lawyers to immediately realize and seriously consider that suits or proceedings do not conclude with the passing of the "decree" and subsequent proceedings are not to be relegated for "Juniors" and "Clerks";
    • Fourthly and in other words, "Courts and Lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits";
    • Fifthly, for stakeholders to agree and conclude both in perception and practice "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 court should enable a party not only to get a decree quickly but also to get the relief quickly.";
    • Sixthly, by way of amendments in the Code of Civil Procedure towards ensuring that the proceedings in a Suit "will be a continuous process from the stage of its initiation to the stage of securing actual relief". ;
    • Seventhly, with the realisation that bifurcation of Court proceedings into – a) Suit and b) Execution has been detrimental- a single, all- inclusive and comprehensive process be introduced without any "pause" between the Suit and Execution;
    • Eighthly, "The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief" doing away with the whole process of issuing fresh notices/summons again at the stage of execution;
    • Ninthly, the realisation that the whole process of bifurcation of court proceedings, has proved detrimental and contrary to the purpose and objective of the justice - delivery system and;
    • Lastly, for a new realisation to dawn founded on the firm belief that "It is the duty and function of the court" to not just ensure but actually secure a litigant his awarded relief.

    It is for the Court and the justice delivery system to provide timely relief without any "reminder or nudge from the litigant"8, if they are to serve the purpose for their creation and enactment. It is settled law and requires no further reiteration, that an Executing Court enjoys limited powers and is prohibited from "going behind the decree". If it is so clear and engraved in stone, it defies logic, rationale and legal sense as to why a Decree Holder is continually denied and frustrated from obtaining his/her fruits of Decree. Undoubtedly, the factors summarised by the Supreme Court in Shubh Karan Bubna (Supra), establishes an apparent lack of will in acting and performing respective responsibilities by the justice delivery system. Everything pales and is rendered insignificant if the justice delivery system permits such self destruction by remaining mute. No matter what, this injustice has continued for too long and in recorded terms since 1872. It must end and end immediately. Despite Shubh Karan Bubna's (Supra) pointed and repeated urges– "we hope that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments", there has been little or no change at the ground level. The ills continue to plague and threaten. After all, any delay in securing such relief apart from causing gross injustice to a litigant actually corrodes and destroys his belief and faith in the justice delivery system. By all means, the justice delivery system is guilty of promoting and consolidating such belief in a litigant, when they continually delay the availment of the fruits of a decree. Immediate action is the need before another hundred years pass and we continue to heedlessly lament – "the difficulties of a litigant in India begin when he has obtained a Decree."

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    1. General Manager of the Raj Durbhunga vs. Coomar Ramaput Singh (1871 – 72) 14 MIA 605.

    2. Kuer Janj Bahadur vs. Bank of Upper India Ltd, AIR 1925 Oudh 448 (PC).

    3. Babulal vs. Hazarilal Kishorilal (1982) 1 SCC 525.

    4. Marshall Sons and Company Ltd. vs. Sahi Oretrans Pvt Ltd. (1999) 2 SCC 325

    5. Shub Karan Bubna vs. Sita Saran Bubna and Others (2009) 9 SCC 689

    6. Satyavati vs. Rajinder Singh and Another (2013) 9 SCC 491

    7. .Shub Karan Bubna (Supra).

    8. . Shub Karan Bubna (Supra}

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