civil procedure code

This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains nature, scope, objective, and relevance of Section 47 CPC. It further discusses the powers and duties of executing courts. 

It has been published by Rachit Garg.

Introduction 

Whenever we think of an idea or plan, we try to execute it properly to achieve our goal, and if one plan or idea does not work or fails to furnish the desired goals, we think of other ways of execution. Similarly, when a court passes any order or decree, it also devises methods to execute the order or decree passed. This stage of execution of an order or decree in a suit is one of the most important stages as it consists of rights or remedies that have been granted to the decree-holder and obligations to be fulfilled by the judgement debtor. 

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Now imagine there is a dispute between two parties where the personal rights of ‘A’ have been infringed upon by ‘B’. ‘A’ files a suit in a civil court as the plaintiff, while the defendant ‘B’ argues that there has been no infringement of any such rights. In the further proceedings, the court comes to a judgement that ‘B’ is liable to pay damages of say Rs. 50,000 to ‘A’ and passes a decree whereby ‘B’ becomes the judgement debtor and ‘A’ the decree holder/judgement creditor. When it’s time to execute the decree, ‘B’ refuses to pay any damages to ‘A’ and does not fulfil any kind of legal obligations. This is where the role of the executing court comes into the picture. If ‘B’ has to raise any objections against the execution or ‘A’ has to file an application for the execution of a decree, the same will be done in the court that has adjudicated the matter if no other court is explicitly mentioned in the decree for its execution. The court will now become the executing court and will devise methods for the execution of the decree in favour of ‘A’. 

Section 47 of the Code of Civil Procedure, 1908 specifically deals with objections to execution, discharge, and satisfaction of a decree. It deals with such questions that have to be considered while executing any decree. The article explains the scope, object, and general principles of the Section along with the necessary conditions. 

Nature and scope of Section 47 CPC

One of the most important principles of Section 47 is that any matter related to the execution, discharge, or satisfaction of a decree between two or more parties or their representatives in their absence must be determined in the same execution proceedings. No other or separate suit must be filed for the same. This indicates that the Section has a much wider scope than it looks. The executing court has been conferred exclusive jurisdiction on all matters related to execution, discharge, or satisfaction of a decree. 

According to Section 47, once a suit has been adjudicated and a decree has been passed, then all the questions related to the execution of the decree must be taken up and determined by the executing court. It further bars the filing of a separate suit for this purpose. In the case of Harnandrai Badridas v. Debidutt Bhagwati Prasad (1973), the Hon’ble Supreme Court held that in order to empower the executing court to consider and determine all questions related to the execution of a decree, unless it falls beyond its ambit, the provision of Section 47 must be interpreted liberally. 

Objective of Section 47 CPC

The following are the objectives of this Section:

  • To provide a quick and cheaper remedy in case the decree has not been executed by a judgement debtor. 
  • To determine any question or objection related to the execution of a decree. 
  • It also reduces the burden of filing a separate suit and thus prevents multiple litigations and suits. 
  • It also reduces the chances of pendency of suit and delay in justice, which might happen in case a separate suit is filed for the purpose of execution of a decree. 
  • It provides a legal remedy to the decree holder if the decree has not been executed properly or if there is any ambiguity in the execution. 
  • The decree can be enforced properly and without any failure with the help of the executing court. 

Essentials of Section 47 CPC

In order to apply Section 47, the following conditions or essentials must be fulfilled cumulatively:

  • The question related to the execution of a decree must arise between the parties to a suit or their representatives and not any third person not having any interest in the suit or execution. 
  • The question or matter at issue must be related to the execution, discharge or satisfaction of a decree. 

Parties to suit or their representatives

One of the essential conditions of Section 47 is that the parties must be determined properly. This question or any issue in execution must arise between the parties or their representatives in a suit in which a decree has been passed. The word “parties” neither includes de facto parties nor does it merely include plaintiff and defendant but also includes opposing parties. For example, in a suit related to partition, if any question arises between the co-defendants, they will fall under the category of parties for Section 47, while if any question arises between parties who are not opposing parties in a suit or between a party and a third person, then such questions will not fall within the ambit of Section 47. 

Explanation 2 of the Section clearly mentions that a purchaser of any property which has to be sold in execution of a decree is deemed to be a party to the suit in which the decree has been passed, irrespective of the fact that he or she is a stranger to the suit. Whether any person is a party to a suit for Section 47 must be decided on the basis of whether he is a party to any suit in which any decree has been passed or not. 

The term “representative” does not merely include legal representatives like heirs, executors, etc., defined under Section 50 of the Code but includes “representative in interest,” i.e., any person who is a transferee of interest to either the decree holder or judgement debtor and is bound to act according to the decree. It is at the discretion of the court to decide whether any person is a party to a suit or representative in order to apply Section 47 of the Code. 

Question or matter in issue

The question or matter at issue between the parties to a suit where the decree has been passed must be related to the execution, discharge, or satisfaction of such a decree. The following questions fall under the ambit of Section 47:

  • Whether the decree passed is executable, 
  • Whether the property mentioned in the decree be sold for execution of such decree, 
  • Whether the decree has been executed and whether the method or procedure followed satisfied the decree, 
  • Whether the property in question is included in the decree, 
  • Questions related to identity, attachment, or sale of property. 
  • Whether a party is entitled to restitution of property after the decree has been executed, 
  • Whether such execution be postponed or not, 
  • Whether the sale of property in the execution is warranted and done according to what has been mentioned in the decree, etc. 

Prior to the Amendment Act of 1976, various High Courts had given different opinions on whether the question related to the delivery of possession of property to an auction-purchaser falls under the ambit of Section 47. But the Supreme Court in 1973 clarified and settled that such a question is related to the execution, discharge, or satisfaction of a decree and must be determined under the Section and thus, clause (b) to Explanation 2 was added after the amendment. (Harnandrai Badridas v. Debidutt Bhagwati Prasad, 1973 )

Some of the examples of questions that do not fall within the category of questions under the Section are as follows:

  • Whether the decree passed is fraudulent, 
  • Whether it has become inexecutable by a compromise in the previous suit before the passing of a decree, 
  • Question of the jurisdiction of the court,
  • Question related to the validity of decree except in cases where it is a nullity, 
  • A pre-decree arrangement between the parties, 
  • Question or claim for compensation for wrongs committed by any officer in the execution of a decree, etc. 

Powers and duties of executing court

The powers and duties of the executing court are:

  • Plenary power to determine questions related to execution, discharge, or satisfaction of a decree. 
  • The relevant date for this purpose would be the date on which the proceedings were originally instituted. 
  • It can mould relief according to the changes in the circumstances. 
  • The court cannot go beyond what has been mentioned in the decree. 
  • The question related to the validity or correctness of the decree can not be determined by such a court. 
  • It has the duty to interpret the decree in cases of vagueness and ambiguity. 
  • It can also refuse the execution of a decree if there is an inherent lack of jurisdiction in the court. 

General principles for executing court

There are some general principles related to the power and duties of an executing court. These are:

  • No court can execute a decree for a property that is situated outside its local jurisdiction. Thus, the general rule is that an executing court has to work within its territorial jurisdiction.
  • The executing court can never go beyond what has been stated in the decree, nor can it modify the decree. 
  • If the court lacks inherent jurisdiction, then the decree passed will be a nullity and its invalidity could be easily established in execution proceedings. However, such a lack of jurisdiction must be easily identifiable on the face or in the first instance. 
  • In case the decree-holder dies, then it does not mean that the decree will now stand inexecutable. It can be executed against his legal representatives. 
  • The executing court has the power to interpret a decree in cases of ambiguity and vagueness. 
  • It can also decide whether such a decree has ceased to be executable by any subsequent developments. 
  • If a decree has become inexecutable by operation of law, then it might become executable by virtue of any further amendment. 
  • The executing court can also mould or modify the relief granted to the plaintiff according to any change in the situation or circumstances. 
  • If the executing court is executing a decree which has been transferred to it by some other court, then it will have the same powers as if it is executing a decree passed by the court itself. 

Appeal, revision and Section 47 CPC 

The word ‘decree’ has been clearly defined under clause 2 of Section 2 of the Code. Prior to the Amendment Act of 1976, the question related to the execution of a decree under Section 47 was subject to a first appeal under Section 96 and then a second appeal under Section 100 of the Code. This meant that if a party was not satisfied with the proceedings of the executing court and its order, then it could appeal further. It was earlier considered as “deemed to be a decree”. 

In the case of Parshava Properties Ltd. v. A.K. Bose (1979), the Patna High Court held that the determination of a question under Section 47 of the Code will be termed as a decree only if it fulfils the essentials of a decree defined under Section 2(2) of the Code and, thus, could be appealed further. However, this was overruled in the case of Narmada Devi v. Ram Nandan Singh (1987). On the other hand, the High Court of Allahabad, along with other courts in different judgments, has given a different view that after the amendment of 1976, an order passed under Section 47 of the Code does not fall within the meaning of the decree (Pratap Narain v. Ram Narain, 1980).  

Thus, after the amendment, any question determined under the Section and an order passed in lieu of the question are not considered as decrees, and so no further appeal lies. However, one can file a revision application under Section 115 of the Code if the conditions given in the Section can be fulfilled. 

Recent judgements related to Section 47 CPC

Sh. Parveen Kumar & ors. v. Sh. Choudary Ram & ors. (2014)

Facts

In this case, there was a dispute over illegal and unlawful possession of land by the defendants, which the plaintiff claimed belonged to him and other co-sharers. The allegations of the defendants were that they had forcibly taken over possession of the property as they were neither the tenants nor the owners. The trial court asked them to vacate the land. They further filed an application for the execution of the decree under Section 47 of the Code.

The judgement debtors, on the other hand, raised questions and objections to make it inexecutable on the ground that they had already purchased some part of the property and were the co-owners along with the plaintiff. The executing court heard the pleadings and came to the conclusion that the judgement debtors were also the owners, and the plaintiff could not be given actual possession of the property. The decree-holder further filed a petition against the executing court, claiming that it failed to execute the decree. 

Issue

Whether the petition is maintainable and whether the executing court failed to execute the decree. 

Judgement 

The court in this case held that it is well settled that an executing court cannot go beyond the decree, but according to Section 47 of the Code, it has the power to determine questions related to the execution of the decree and the objections therein. In the instant case, it was proved that defendants had purchased some parts of land, and so, they were co-owners along with the plaintiff and, thus, could not be asked to vacate the land. The court further dismissed the petition. 

Bharat Pumps and Compressors v. Chopra Fabricators (2022)

Facts 

In this case, there was an agreement between the two parties that also contained an arbitration clause. A dispute arose between them and they approached the arbitrator. The opposite party, after following the procedure and finishing arbitration proceedings, asked to execute the arbitration award with the help of the court and filed an application for the execution of the award, which was accepted. The revisionist further filed objections under Section 47 of the Code to make it inexecutable. 

Issue

Whether an arbitration award be treated as decree and whether any questions can be raised under Section 47in this regard.

Judgement

The Supreme Court held that an arbitration award is not included under the definition and meaning of decree in the Code and so no questions can be raised in the execution of such an award. The question related to execution, discharge, or satisfaction can only be raised and determined by the executing court in the case of a decree that has been passed by the court. Here, the executing court has no role to play and so no questions can be determined under Section 47 of the Code. The court further observed that the Arbitration Act, 1940 is self-sufficient and so any objections related to the award can be raised according to the provisions of the Act. 

Conclusion

Section 47 mainly deals with the questions that are to be determined by the executing court while executing a decree. The questions that can be related to execution, discharge, or satisfaction of the decree come under the ambit of this Section. The position of an order passed by the executing court under the Section was different before the Code of Civil Procedure (Amendment) Act of 1976. It was considered to be a deemed decree and an appeal in furtherance of that order was permitted. But after the amendment, it is clear that any order passed by virtue of Section 47 is not a decree and cannot be appealed. However, an application for revision can be filed, which is maintainable only if the conditions of revision are fulfilled. The Amendment Act of 1976 further provides that any amendment to Section 2(2) of the Code will not affect any such pending appeals and they will be determined as if they were determined before the amendment. 

Frequently Asked Questions (FAQs)

What are the different modes of execution of a decree?

A decree can be executed by:

  • Delivery of property, 
  • Attachment and sale of property under clause (b) of Section 51,
  • Arrest and detention under clause (c) of Section 51, 
  • Appointment of receiver under clause (d) of Section 51, 
  • Partition under Section 54, 
  • Cross-decrees and cross-claims, 
  • Payment of money, 
  • Specific performance of contract, 
  • Restitution
  • Execution of documents, 
  • Endorsement of a negotiable instrument, 
  • Attachment of rent, 
  • By decree against corporations or firms, etc. 

What is the difference between Section 47 and Order 21, Rule 58 of CPC?

Both Section 47 and Order 21, Rule 58 of the Code of Civil Procedure, 1908, are related to execution proceedings. The only difference is that Section 47 applies to parties in a suit or their representatives, but Order 21, Rule 58, applies to third parties and their representatives. Further, Section 47 bars a separate suit and appeal, but the latter only bars the suit. 

What kind of suit is barred under Section 47 CPC?

Section 47 bars a separate suit in respect of execution, discharge, or satisfaction of a decree. If any suit does not fulfil the two important conditions of the Section mentioned above, then the suit will not be entertained. 

What is the difference between Section 47 and Res judicata?

Res judicata deals with the final decision of the court in a suit on matters that have been already decided by one court and bars the filing of another suit on the same issue between the same parties to be filed in the same jurisdiction of another court, while Section 47 deals with the enforcement and execution of such decisions and specifies that any question with respect to execution will be determined by the executing court and there is no need to file a separate suit for the same.  

References 

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