HP High Court: Executing Court Cannot Rely on Evidence from Separate Proceedings under Different CPC Provision; Order Set Aside for Fresh Decision under Order 21 Rule 31
Safiya Malik
The High Court of Himachal Pradesh, Single Bench of Justice Ajay Mohan Goel held that an executing court cannot base its decision on evidence recorded in a different proceeding under another provision of the Civil Procedure Code between the same parties. Setting aside the impugned order of the Civil Judge, Tissa, the Court observed that such reliance reflected a complete lack of judicial application of mind. It directed the Executing Court to reconsider the decree holder’s application under Order 21 Rule 31 independently, after allowing the judgment debtor to submit objections in accordance with law.
The dispute arose between Mahindra and Mahindra Financial Services Limited, the petitioners, and Smt. Basanti Devi, the respondent, over the execution of a decree. The respondent, as decree holder, had filed two separate execution-related applications under different provisions of Order 21 of the CPC — one under Rule 32 and another under Rule 31. Evidence had been led by the decree holder in connection with the first application under Rule 32. When deciding the later application under Rule 31, the learned Civil Judge relied on the evidence recorded in the earlier proceeding.
This reliance was challenged by Mahindra Finance, citing a previous High Court judgment in CMPMO No. 45 of 2017 (Mahindra and Mahindra Financial Services Ltd. and others v. Basanti Devi). In that case, the High Court had already held that “the evidence led by the respondent/applicant in the application filed under Order 21, Rule 32 of the Civil Procedure Code could not be taken into consideration while deciding the application filed under Order 21, Rule 31 of the Civil Procedure Code.”
The petitioners argued that the Executing Court’s act of repeating the same error amounted to judicial perversity. Counsel for the respondent, while defending the impugned order, did not contest the fact that the earlier High Court decision had prohibited such cross-use of evidence. The Court, therefore, examined the procedural history and found the impugned order legally untenable.
The judgment stated that “this demonstrates that there was a complete non-application of judicial mind by the learned Judge concerned, who did not care to go through the order passed by this Court in the earlier CMPMO.”
The Court recalled its prior order in CMPMO No. 45 of 2017, where it had already set aside a similar decision for the same procedural fault. The earlier ruling had stated: “The learned trial Court while allowing the application relied upon the so-called evidence which in fact had not been led in this application... To the contrary, the learned Court relied upon the evidence that had been led in the earlier application filed by the respondent under Order 21 Rule 32 CPC. This position is indefensible and is therefore rightly not disputed by the respondent.”
The Court recorded that “when already in the same case there was an order passed by the High Court directing and holding that the evidence led by the applicant in the application filed under Order 21, Rule 32 of the Civil Procedure Code could not be looked into while deciding the application under Order 21, Rule 31, the learned Executing Court by no stretch of imagination could have decided the application by relying upon the evidence led by the applicant in the application filed under Order 21, Rule 32.”
The judgment recorded: “Therefore, on this count, this petition petition is allowed. Impugned order dated 28.09.2020 is set aside and the learned Executing Court is directed to decide the application filed under Order 21, Rule 31 of the Civil Procedure Code afresh on its own merit taking into consideration by permitting the Judgment Debtor to file objections thereto, in accordance with law. The parties are directed to appear before the learned Court concerned on Court, if the Decree Holder fails to appear before the Court, then the proceedings will be dismissed for non prosecution and in case the Judgment Debtor fails to appear before the Court, then the parties shall be proceeded against ex parte.”
Advocates Representing the Parties
For the Petitioners: Mr. Deepak Gupta, Advocate
For the Respondent: Mr. Kul Bhushan Khajuria, Advocate
Case Title: Mahindra and Mahindra Financial Services Limited & another v. Smt. Basanti Devi
Neutral Citation: 2025: HHC:34731
Case Number: CMPMO No. 287 of 2022
Bench: Justice Ajay Mohan Goel
