Recently, in a clear assertion of procedural propriety under the Code of Civil Procedure, 1908 (CPC), the Himachal Pradesh High Court has set aside an order of the Executing Court at Tissa for relying on evidence led in a different proceeding between the same parties under a separate CPC provision. The Court held that such reliance amounted to a “complete non-application of judicial mind.” Justice Ajay Mohan Goel observed that the Executing Court had again repeated the very error earlier corrected by the Court in 2017.
The case arose when the decree holder, Basanti Devi, filed two separate execution applications, one under Order 21 Rule 32 CPC concerning enforcement through attachment for disobedience of a decree, and another under Order 21 Rule 31 CPC relating to execution involving detention or attachment. While adjudicating the Rule 31 application, the Executing Court relied upon evidence that had been led in the Rule 32 proceedings, despite a prior Court decision expressly prohibiting such cross-reliance.
Justice Ajay Mohan Goel recalled the earlier decision, where the Court had categorically held 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 of the Civil Procedure Code."
The Court observed, “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. This is deprecated because 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 of the Civil Procedure Code, 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 of the Civil Procedure Code.”
Accordingly, the High Court set aside the impugned order and directed the Executing Court to decide the application under Order 21 Rule 31 CPC afresh on its own merits, after permitting the judgment debtor to file objections in accordance with law. The parties were directed to appear before the concerned court on November 17, 2025.
Case Title: Mahindra and Mahindra Finance Services Limited & Anr. Smt. Basanti Devi
Case No: CMPMO No.287 of 2022
Coram: Hon’ble Mr. Justice Ajay Mohan Goel
Advocate for Petitioner: Adv. Deepak Gupta
Advocate for Respondent: Adv. Kul Bhushan Khajuria
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