QUESTIONS TO BE DETERMINED
BY EXECUTING COURT
SUBMITTED TO
SUBMITTED BY
AKSHIT GULERIA
DEPARTMENT
ROLL NO.
U.I.L.S, P.U.
09/12
CHANDIGARH
SEMESTER
8TH
SECTION
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ACKNOWLEDGEMENT
I would like to thank my subject teacher, respected Dr.Karan
Jawanda for providing me with this glorious opportunity to work on
this project and enhance my knowledge
THANKING YOU!
AKSHIT GULERIA
09/12
INTRODUCTION
Section 47 is one of the most important provisions in the code relating to
execution. It applies only to matters arising subsequent to the passing of a
decree and deals with objections to execution, discharge and satisfaction of a
decree. It lays down the principle that matters relating to the execution,
discharge or satisfaction of a decree arising between the parties, or their
representatives, should be determined in execution proceedings and not by a
separate suit.
PROVISIONS OF SECTION 47
SUB SECTION 1:
Sub-section 1 categorically states that the court executing the decree shall
determine all questions arising between the parties to the suit in which the
decree was passed, or their representatives, and relating to the execution,
discharge or satisfaction of the decree and not by a separate suit.
SUB SECTION 2:
Sub-section 2 was omitted by C.P.C (Amendment) Act 1976.
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SUB-SECTION 3:
Sub-section 3 further adds that the court shall also determine the question
whether or not any person is a representative of a party.
EXPLANATION 1 AND 2:
Explanation attached to sub-section 3 clarify that a plaintiff whose suit has been
dismissed and a defendant against whom a suit has been dismissed are parties to
the suit. A person who purchases a property in execution-sale shall be deemed to
be a party to a suit.
Explanation 2 further proves that all questions relating to the delivery of
possession of such property to such purchaser shall be deemed to be questions
relating to the execution, discharge or satisfaction of the decree.
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1.
MATHUR .D.N, THE CODE OF CIVIL PROCEDURE, 2ND ED, CENTRAL LAW
PUBLICATIONS, ALLAHABAD, 2001, P.435
OBJECT OF SECTION 47
Section 47 grants vast powers to the court executing a decree. Under this
section, the executing court can determine all questions relating to execution,
discharge or satisfaction of the decree that arise between the parties to the suit.
If such powers were not conferred upon the executing court, the only recourse
available to the parties was to institute another suit for determination of such
questions. The fresh litigation would have been unnecessary and timeconsuming as well. Thus like section 11, section 47 has been enacted with a
view to enable parties to obtain adjudication relating to execution without
unnecessary expenses or delay which a fresh trial might entail 2. The rule of res
juicata deals with the finality of a decision of a court on matters actually or
constructively in issue before it and bars a fresh trial of any kind of such
questions in subsequent proceedings between the parties, while section 47 deals
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with the enforcement of such decisions and enacts that the questions specified in
the section shall be tried in execution and not by a separate suit. In other words,
where there is an executable decree, no suit lies for the enforcement thereof, or
for the determination of the questions specified in section 47.3
Section 47 has been enacted with a view to eliminate unnecessary proceedings.
It checks unwarranted litigation and thus avoids the delay which a trial might
involve. The object is to provide expeditious remedy by allowing determination
of such questions in execution proceeding itself. The parties already before the
court may obtain an adjudication of all questions relating to execution,
discharge or satisfaction of the decree from the same executing court. The
section forbids a separate suit which might interfere with the conduct of
proceedings by the executing court. Thus unnecessary expenses likely to be
incurred on fresh suit are saved and delay likely to be caused due to fresh
litigation is avoided.
ESSENTIALS OF SECTION 47
A plain reading of the provision reveals following essential ingredients1. The questions must be relating to execution, discharge or satisfaction of
the decree,
2. The questions must arise between the parties to the suit in which the
decree was passed or their reprentative.
Both the conditions must be fulfilled cumulatively.
The first condition for the applicability of this section is that the question must
relate to the execution, discharge or satisfaction of the decree
Though the expression questions relating to the execution, discharge,
satisfaction of the decree has not been defined in the code, it covers question of
excitability or non-excitability of a decree.7
The following questions are held to be questions relating to the execution,
discharge or satisfaction of decrees:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Although executing court cannot go behind the decree, it can always interpret a
decree, the executing court has to proceed with the presumption that the decree
was passed on correct legal position.
The following questions, on the other hand are not questions relating to the
execution, discharge or satisfaction of decrees:
1. Whether the decree is fraudulent or collusive
2. Whether the decree has become in executable by a compromise
subsequent to the passing of the decree in the previous suit
3. A question relating to the territorial or pecuniary jurisdiction of court
which passed the decree
4. A question to correctness or validity of the decree, except where the
decree is a nullity
5. An order of restoration of execution of application dismissed without
going into its merits
6. An order reopening or refusing to reopen a decree
7. An order granting or refusing to grant instalments
8. A claim by an auction-purchaser for actual possession
9. A pre-decree arrangement between the parties
10. An order appointing or refusing to appoint a commissioner for effecting
partitioning suit.
11. A question relating to the amount of mesne profits
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below, therefore, rejected the contention of the balance price within the time
stipulated had rendered the decree invalid. It was held that in view of all the
aspects of the matter, the said concurrent finding recorded by the two courts
below did not call for interference.
In VEDIC GIRLS SENIOR SECONDARY SCHOOL, ARYA SAMAJ
MANDIR V. RAJWATI12, the Apex Court cannot act beyond the scope of the
decree without invoking Section 47. The executing court was required to
execute the decree as made and it had no jurisdiction to widen its scope or to
add to it unless specific question was raised relating to discharge or satisfaction
of decree as envisaged in section 47, C.P.C.
In MOHD. MASTHAN V. SOCIETY OF CONGREGATION OF THE
BROS. OF THE SACRED HEART13, the Apex Court held that the question
whether the decree was obtained by collusion could not have arisen before the
executing court.
The second condition of this section is that the question must arise between the
parties to the suit in which the decree was passed or their representative. So who
is party to suit?
Following persons are included within the term party to suit9
a) The plaintiff having a cause for claiming relief from the court. If no such
claim is made or arises against person, he may not be a party to suit even
if joined in the array of parties.
b) The defendant against whom the plaintiff seeks remedy.
c) A plaintiff whose suit has been dismissed.
d) A defendant against whom a suit has been dismissed.
e) A person who purchases a property in execution-sale.
BIBLIOGRAPHY
TAKWANI C.K, CIVIL PROCEDURE WITH LIMITATION
ACT,1963, 7TH ED, EASTERN BOOK COMPANY,
LUCKNOW, 2015
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