Years, Resident Of Purana R.t.o., Saraswati Colony, Kota, Raj v. Rameshwar Prasad Sharma Son Of Late Moolchand

Judgment

1. Rameshwar Prasad Sharma Son Of Late Moolchand, (Deceased) Through Legal Heir- 1/1. Kaushal Kishor Sharma Son Of Late Rameshwar Sharma, Resident Of 1044, Mahaveer Nagar-II, Kota. 1/2. Anurag Sharma Son Of Late Rameshwar Sharma, Resident Of 1044, Mahaveer Nagar-II, Kota. 1/3. Dr. Jitendra Sharma Son Of Late Rameshwar Sharma, Resident Of 1044, Mahaveer Nagar-II, Kota.

2. Premlata Wife Of Late Rameshwar Sharma, Resident Of 1044, Mahaveer Nagar- Second, Kota.

3. Anurag Sharma Son Of Late Rameshwar Sharma, Resident Of 1044, Mahaveer Nagar- Second, Kota.

4. Anita Sharma Wife Of Suresh Kumar Sharma, Resident Of Flat No. 701-A-3, Mahalaxmi Enclave, Baran Road, Kota, Rajasthan.

5. Sunita Tyagi Wife Of Arvind Tyagi, Resident Of Saai Vihar Colony, Chorsiya Saai Mandir, Guna (Madhya Pradesh)

: Mr. Anil K. Sharma For Respondent(s) : HON'BLE MR. JUSTICE GANESH RAM MEENA 25/09/2025 Order

1. The instant writ petition under Article 227 of the Constitution of India has been preferred by the plaintiff/petitioner with a prayer to issue direction to the learned Civil Judge (J.D.), [2025:RJ-JP:39623] (2 of 6) [CW-14717/2025] North, Kota (hereinafter is to be referred to as ‘the Executing Court’) to decide the Execution Application No.25/2024, at the earliest.

2. Heard and considered the submissions made by learned counsel appearing for the plaintiff/petitioner.

3. Brief facts of the case are that the learned Civil Judge (J.D.) North, Kota issued a decree dated 06.12.2010 in favour of the plaintiff/petitioner. Being aggrieved by the judgment and decree dated 06.12.2010, the defendants/respondents preferred an appeal before the Court of learned Additional District Judge No.1, Kota (hereinafter is to be referred to as ‘the Appellate Court’), which came to be dismissed on 10.05.2024. Thereafter, the petitioner filed an execution application before the Trial Court on 18.09.2024 for restraining the defendants/respondents from making encroachment over the land in dispute. The defendants/respondents also filed an objection application dated

27.09.2024 to execution proceedings under Section 47 r/w Section 151 CPC.

4. Learned counsel for the petitioner submits that the learned Executing Court issued a decree dated 06.12.2010 in favour of the petitioner/plaintiff but the defendants/respondents did not comply with the direction given by the learned Executing Court. He further submits that against the said decree, an appeal was preferred by the defendants/respondents before the Appellate Court, which came to be dismissed vide order dated 10.05.2024. Learned Counsel further submits that despite being the said decree favour the plaintiff/petitioner, defendants/respondents tried to take possession over the disputed [2025:RJ-JP:39623] (3 of 6) [CW-14717/2025] land, therefore, the plaintiff/petitioner filed the aforementioned execution application before the Executing Court for restraining the defendants/respondents from encroaching the disputed land, but the same has not been decided till date. He further submits that in the circumstances aforesaid, it is a fit case where directions are required to be issued to the Executing Court for concluding the execution application within a stipulated period.

5. The Hon'ble Apex Court in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi & Ors.; (2021) 6 SCC 418 has provided guidelines and directions for execution proceedings. The relevant portion of the said judgment is quoted as under:- "42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below-mentioned directions:

42.1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.

42.2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.

42.3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.

42.4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.

42.5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain [2025:RJ-JP:39623] (4 of 6) [CW-14717/2025] clear description of the property but also having regard to the status of the property.

42.6. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.

42.7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.

42.8. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third- arty claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

42.9. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits. 42.10. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.

42.11. Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.

42.12. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.

42.13. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an [2025:RJ-JP:39623] (5 of 6) [CW-14717/2025] offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.

42.14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts.

43. We further direct all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable."

6. Further, the Hon'ble Apex Court in the case of Periyammal (Dead) through Lrs. & Ors. Vs. V. Rajamani & Anr., reported in 2025 SCC Online SC 507, vide paras 74 and 75 has observed as under:- "74. The mandatory direction contained in Para 42.12 of Rahul S. Shah (supra) requiring the execution proceedings to be completed within six months from the date of filing, has been reiterated by this Court in its order in Bhoj Raj Garg v. Goyal Education and Welfare Society & Ors., Special Leave Petition (C) Nos. 19654 of 2022. In view of the aforesaid, we direct all the High Courts 75. across the country to call for the necessary information from their respective district judiciary as regards pendency of the execution petitions. Once the data is collected by each of the High Courts, the High Courts shall thereafter proceed to issue an administrative order or circular, directing their respective district judiciary to ensure that the execution petitions pending in various courts shall be decided and disposed of within a period of six months without fail otherwise the concerned presiding officer would be answerable to the High Court on its administrative side. Once the entire data along [2025:RJ-JP:39623] (6 of 6) [CW-14717/2025] with the figures of pendency and disposal thereafter, is collected by all the High Courts, the same shall be forwarded to the Registry of this Court with individual reports."

7. Taking into consideration the totality of the facts of the case and more particularly the fact that the suit which was decreed vide judgment and decree dated 06.12.2010 and the same has attained finality even up to the top Court and the execution application which was filed on 18.09.2024, has not been concluded even after lapse of more than one year, this Court feels that ends of justice would meet if the directions are issued to the Executing Court to conclude the execution application within a stipulated period.

8. Accordingly, this writ petition is disposed of with direction to learned Civil Judge (J.D.), North, Kota, to concluded/complete the proceedings of Execution Application No.25/2024, at the earliest and preferably within a period of 3 months from the date of submitting the certified copy of this order.

9. The Executing Court may resort to day-to-day proceedings of the execution application. ARTI SHARMA /30 (GANESH RAM MEENA),J