Judicial, Executive and Contempt proceedings

ANALYSIS OF JUDICIAL, EXECUTIVE AND CONTEMPT PROCEEDINGS

Author: Aayush Akar, NLUO

Implementation of proceedings of litigation is known as an execution. A decree will come into being where the civil litigation with the complaint being presented has been instituted. The decree requires a process or judgmental conclusiveness. Execution of a decree will only occur once the parties have filed an application in that regard. An order or decree must be enforced as facilitative and not as a mandate by the Court. If a party does not approach the Court, so the Court does not have a duty to enforce it suo moto. The Court that delivered the verdict must have an authority to enforce the decree.

The Code does not define the term “execution.”  The term “execution” means giving effect to the order or judgment delivered by the Court. Simply “execution” implies the method for implementing or giving effect to the Court’s judgment. It is the implementation of the Court’s rulings and orders, to facilitate the “decree-holder” to fulfill the results of the decree. It is finished once the “decree-holder” receives compensation or something else which the judgment, decree, or order gives him.

PRINCIPLES REGARDING EXECUTION OF DECREE

Now, the question arises what is the principles concerning the execution of the decree. The provisions of the CPC covering the enforcement of the judgment and order shall extend to all “Appeal and Sue”. A decision can be enforced by a Court which has issued a verdict and an order or by any other Court which has authority to enforce a verdict of that particular Court.

The Court which passed the judgment may apply it for execution to another Court, either at the request of the applicant (decree holder) or by the Court itself. The Court shall order the execution in any way depending on the nature of the relying upon a decree concerning the prayer of a decree-holder (a) by transfer of all property in the hands of an award holder and a decree which shall be expressly imposed on this property (b) by attachment and the sale of the property of a judgment holder (c) by detention (Civil Prison) (d) by the nomination of the receiver (e) in either way, based on the nature of the prosecution issued by the judge.

The Court may, after the request of the decree-holder, issue “percept” to any Court which is competent in that respect. Any concerns arising from the verdict between the parties to the claim shall be settled by the Court through the implementation of the judgment and not by a separate action. Where a verdict is passed down against a party as the “judicial owner” of the deceased person and the judgment is for the transfer of property from the properties of the deceased person, it can be implemented by the addition and sale of any other properties. The judgment-debtor may be arrested at any time and must be taken before the Court which has issued the decree on either day, and his detention will be in the civil jail of the region where the judgment is to be applied.

Where an immovable land has been realized by the Court in compliance with the decree, the sale shall be absolute. The land is deemed to have been acquired for the benefit of the owner and the owner is considered to have become a subject to the conflict. The Court to whom the judgment is referred for implementation shall be allowed to confirm to the Court that it has issued a declaration carrying forth how the judgment has been executed concerning the fact of that implementation.

PROCEDURE OF EXECUTION

“Section 51 to 54 states about the procedure for execution”. Application for the process of execution as per Order 21 Rule 10 and 11 may be oral and written. The party has to pray before the Court for the method of execution. “As per Section 51, the Court has the authority to attach the property if the property comes in its jurisdiction. No execution of the decree by the detention of judgement-debtor unless the reasonable opportunity is given to that person why that person cannot be imprisoned.”[1] “Section 52 states that decree or order can be passed against the legal heir of judgement-debtor.”[2] “Section 53 states that where the suit against a single Hindu family has been filed, no legal representative should be held personally responsible unless some property of a joint Hindu family is received.”[3] “Section 54 deals with a case where though the civil Court has the power to pass a decree yet it is not competent to execute the same. Under this section, the execution of a decree shall be made by the collector.”[4]

CONTEMPT PROCEEDINGS

“The term “Contempt of Court” is a general expression explanatory of conduct about specific proceedings in a Court which continues to undermine that system or hinder citizens from using it to settle their conflicts.” This concept is given by “Lord Diplock” in the case of “Attorney-General v. Times Newspapers Ltd[5]” when he delivered the decision.

In India, the expression “Contempt of Court” is specified in section 2(a) of the 1971 Act that has classified as “Civil Contempt or Criminal Contempt”. Two Articles in Constitution speak of the Court’s Contempt which is 129 and 142(2).

Article 129 states that the ‘Court of Record’ in India will be the Supreme Court of India and has the provision for “Contempt of Court”.[6] It means that the Apex Court has everlasting memory that acts as evidence or proof. As per Article 142(2) when the Parliament made any law, the Top Court is vested with the power to secure a person’s attendance and power to give punishment for Contempt. But it does not mean that the Apex Court has no right to take away the individual liberty of the citizen.[7]

HISTORY OF CONTEMPT OF COURT

As per Kautilya’s Arthasastra, “any person who exposes the king or insults his council or make any type of bad attempt on the kings then the tongue of that person should be cut off.” Until 1952, there was no legislation for the “Contempt of Court” but after “Contempt of Court Act, 1952”, legislation for the Contempt of Court was created. The law had many loopholes as it failed to take into account freedom of speech as well as the right to personal liberty. So in 1971, the new act “Contempt of Court Act, 1971” replaced the previous legislation is the present legislation of this matter.

FEATURES OF PRESENT LEGISLATION

In the state of Jammu &Kashmir, this act is not applicable except when the clause in the act is connected with the Contempt of the Top Court. “Section 2(a) of the present legislation divides the Contempt of Court into Criminal and Civil Contempt”. In the case of “Noorali Babul Thanewala v. K.M.M. Shetty[8]” where an undertaking was issued to the Court in civil litigation on the basis that the undertaking was right, the Court approved the course of action about that undertaking, but that seems to be incorrect. It was, however, considered as misconduct and leads to the Contempt of the Court. As per the 1971 Act, the essentials of “Contempt of Court” are-

• In the case of “Civil Contempt”, disobedience to some kind of Court proceedings, decision, decree, etc. should be done wilfully.
• In Criminal Contempt “publication” is the crucial aspect and this may be either spoken or written, or by words, or by clear representation.
• The Court will issue a “valid order” and that direction should be in the knowledge of the respondent.
• Contempor’s conduct should be intentional and it should also be specifically disregarding the Court’s order.

CASE LAWS OF CONTEMPT PROCEEDINGS

In the case of SCBA v. Union of India[9], Parliament has authority to prescribe procedural aspect of the Contempt of Court which will also be applicable in Top Court and High Courts. But the ration of this case was changed in the case of “Zahira Habibullah v. State of Gujarat[10]” where it was held that contempt, as mentioned in the 1971 Act, would be applicable in the High Courts and Top Court. But the Sudhakar Prasad v. Govt of AP[11] which overruled the Zahira case and stated that power to convict for contempt are intrinsic.

Similarly, Justice Karnan became the first sitting High Court Judge to be imprisoned on Contempt of Court charge for six months. In 2017, Contempt of Court proceedings against him was initiated after he accused some judges of indulging in fraud. He wrote a letter against this to PM Modi but he gave no testimony against them.

CONCLUSION

From the explanation alluded to above, it shows that the enforcement of the decrees and regulations by the Court allows the holder of the decree to recognize the advantages of the judgment. Execution shall be done if the judgment-creditor or decision-holder collects money or something else that the verdict, statute, or order offers him.

In India, the legal position of ex-facial contempt of the inferior courts is inadequate and misleading. The issues in this regard tend to be the consequence of duplication of the rights of contempt under the IPC, the “Contempt of Courts Act” and the jurisdiction of the Top Court and the High Courts under the Constitution.  The condition has been much more complex due to the conflicting interpretations of the various clauses of the Indian Criminal Code concerning interference with the enforcement of the law and the prohibition clause defined by the Top Court and the High Court in the “Contempt of Courts Act”.

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[1] Civil Procedure Code, 1908, s 51.

[2] Civil Procedure Code, 1908, s 52.

[3] Civil Procedure Code, 1908, s 53.

[4] Civil Procedure Code, 1908, s 54.

[5] Attorney General v Times Newspapers Ltd and others [2001] EWCA Civ 97.

[6] Constitution of India, 1950, a 129.

[7] Constitution of India, 1950, a 142(2).

[8] Noorali Babul Thanewala v K.M.M. Shetty 1990 AIR 464.

[9] Supreme Court Bar Association v Union of India & Anr AIR 1998 SC 1895. 

[10] Zahira Habibullah Sheikh & Anr v State of Gujarat & Ors (2004) 4 SCC 158.

[11] Sudhakar Prasad vs. Govt. of A.P. and Ors (2001) 1 SCC 516.