How doctrine of res Judicata is applicable to execution of decree?

Conclusion

37. The appellants cannot be allowed to raise the issue relating to

the breach of Order XXI, Rule 64 for the following reasons:(

i) A judgmentdebtor cannot be allowed to raise objections as to

the method of execution in instalments. After having failed to raise the issue in four earlier rounds of litigation, the appellants cannot be permitted to raise it now;

(ii) As we have pointed out elsewhere, the original judgmentdebtor himself filed a petition under Section 47, way back on 02.09.1975. What is on hand is a second petition under Section 47 and, hence, it is barred by res judicata. It must be pointed out at this stage that before Act 104 of 1976 came into force, there was one view that the provisions of Section 11 of the Code had no application to execution proceedings. But under Act 104 of 1976 Explanation VII was inserted under Section 11 and it says that the provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit, issue or former suit shall be construed as references to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree;

(iii) Even in the 5th round, the appellants have not pointed out the lay of the property, its dimensions on all sides and the possibility of dividing the same into two or more pieces, with a view to sell one or more of those pieces for the realisation of the decree debt;

(iv) The observations in paragraph 4 of the order of the High Court

dated 20.12.1990 in C.O.No.2487 of 1987 that, “none of the parties

shall have any claim whatsoever as against the applicant in respect

of the purchased property which shall be deemed to be his absolute

property on and from the expiry of 15th December, 1980”, has

attained finality;

(v) Section 65 of the Code says that, “where immovable property is

sold in execution of a decree and such sale has become absolute, the

property shall be deemed to have vested in the purchaser from the

time when the property is sold and not from the time when the sale

becomes absolute”. The sale of a property becomes absolute under

Order XXI, Rule 92(1) after an application made under Rule 89,

Rule 90 or Rule 91 is disallowed and the court passes an order

confirming the same. After the sale of an immovable property

becomes absolute in terms of Order XXI, Rule 92(1), the Court has

to grant a certificate under Rule 94. The certificate has to bear the

date and the day on which the sale became absolute. Thus a

conjoint reading of Section 65, Order XXI, Rule 92 and Order XXI,

Rule 94 would show that it passes through three important stages

(other than certain intervening stages). They are, (i) conduct of sale;

(ii) sale becoming absolute; and (iii) issue of sale certificate. After all

these three stages are crossed, the 4th stage of delivery of possession

comes under Rule 95 of Order XXI. It is at this 4th stage that the

appellants have raised the objection relating to Order XXI, Rule 64.

It is not as if the appellants were not aware of the fact that the

property in entirety was included in the proclamation of sale.

Therefore, the claim on the basis of Order XXI, Rule 64 was rightly

rejected by the High Court.

38. In view of the above, the appeal is devoid of merits and, hence,

it is dismissed. 

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4557 OF 2012

DIPALI BISWAS Vs NIRMALENDU MUKHERJEE 

Author: V. Ramasubramanian, J.

Dated: October 05, 2021

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Whether the appeal is maintainable against an order passed in application U/S 47 of CPC?

In view of above. It can be said that the objections were treated u/sec. 47 CPC by the ld. Executing Court which deals with questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. It is well settled that it is the substance and not the nomenclature which is material. So, far as an order passed u/sec. 47 CPC is concerned, the same is not an appealable order as it does, not find mention either in section 104 or in order 43 CPC which prescribe exhaustive list of the appealable orders.' There is also no special provision which makes the order u/sec. 47 CPC an appealable order. An order u/sec. 47 CPC is also not covered by the existing definition of term decree u/sec. 2(2) of CPC.

19. Considering the above facts and circumstances, I am of the considered view that present appeal is not maintainable in this court and same is accordingly dismissed."

21. It is the settled position in law that the nomenclature of an application does not govern the nature of the application, or the order passed in the same. Clearly the order passed by the Executing Court in this case is one under Section 47 CPC and not under Order XXI Rule 97 CPC. The question as to whether the Judgment Debtor is covered under the term "any person" in Rule 97 does not even arise in the present petition inasmuch as the said provision has in fact been wrongly invoked in the title of the application. The order passed is one for implementing the mandatory injunction as granted by the original decree dated 24th December, 1999 along with restitution in the form of damages. Such an order cannot constitute an order under Order XXI Rule 97 CPC and is clearly an order under Section 47 CPC.

When an order is passed by an executing court directing recovery of possession from the judgment debtors who had failed to comply with the requisite clear direction in this regard under the decree in question, the said order would not relate to obstruction or resistance by the judgment debtors, and would therefore be an order within the meaning of Section 47 of the CPC and not one under Order XXI Rule 97 of the CPC.

IN THE HIGH COURT OF DELHI

CM(M) 1448/2019, CM Appls. 43987/2019 and 43988/2019

Decided On: 19.03.2020

Dev Raj  Vs.  Satpal Gulia

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

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Whether court can consider uncertified adjustment of decree out of court U/S 47 CPC?

 If any money is payable under a decree, irrespective of the nature of decree, and such money is paid out of court, the decree-holder, has to certify such payment to the court whose duty it is to execute the decree and that court has to record the same accordingly. Similarly if a decree, irrespective of its nature, is adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder has to certify such adjustment to that court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree-holder, the judgment-debtor has been given the right to inform the court of such payment or adjustment and to apply to that court for certifying that payment or adjustment after notice to the decree-holder. Then comes Sub-rule (3) which provides that a payment or adjustment which has not been certified or recorded under Sub-rule (1) or (2), shall not be recognised by the court executing decree.

11. The expression "or the decree of any kind is otherwise adjusted" are of wide amplitude. It is open to the parties namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to an adjustment of the decree, it has to be recorded by the court under Rule 2 of Order XXI. It may be pointed out that an agreement, contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to an adjustment of the decree within the meaning of the Rule and the Court, if approached, will issue the certificate of adjustment. An uncertified payment of money or adjustment which is not recorded by the court under Order XXI Rule 2 cannot be recognised by the executing court. In a situation like this, the only enquiry that the executing court can do is to find out whether the plea taken on its face value, amounts to adjustment or satisfaction of decree, wholly or in part, and whether such adjustment or satisfaction had the effect of extinguishing the decree to that extent. If the executing court comes to the conclusion that the decree was adjusted wholly or in part but the compromise or adjustment or satisfaction was not recorded and/or certified by the court, the executing court would not recognise them and will proceed to execute the decree.

12. The problem can be looked into from another angle on the basis of the maxim "generalia specialibus non derogant". Section 47, as pointed out earlier, gives full jurisdiction and power to the executing court to decide all questions relating to execution, discharge and satisfaction of the decree. Order XXI Rule 3, however, places a restraint on the exercise of that power by providing that the executing court shall not recognise or look into any uncertified payment of money or any adjustment of decree. If any such adjustment or payment is pleaded by the judgment-debtor before the executing court, the latter, in view of the legislative mandate, has to ignore it if it has not been certified or recorded by the court.

13. The general power of deciding questions relating to execution, discharge or satisfaction of decree under Section 47 can thus be exercised subject to the restriction placed by Order XXI Rule 2 including Sub-rule (3) containing special provisions regulating payment of money due under a decree outside the court or in any other manner adjusting the decree. The general provision under Section 47 has, therefore, to yield to that extent to the special provisions contained in Order XXI Rule 2 which have been enacted to prevent a judgment-debtor from setting up false or cooked-up pleas so as to prolong or delay the execution proceedings. The aforesaid aspects were highlighted in Sultan Begum's case (supra).

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3831 of 2000

Decided On: 25.04.2006

 Padma Ben Banushali Vs.  Yogendra Rathore and Ors.

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and Tarun Chatterjee, JJ.

Citation: AIR 2006 SC 2167

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Whether clauses of partnership deed will be automatically binding on legal heirs of deceased partners?

 At this stage, it is to be noticed that once the

partnership comes to an end, by virtue of death of

one of the partners, there will not be any

partnership existing in which legal representatives

of late Smt. Hashmatunnisa Begum could be taken in.

The judgment and decree obtained by late Sri Jai

Narayan Misra against late Smt. Hashmatunnisa Begum,

in pursuance of partnership deed dated 14.04.1982,

cannot bind the legal representatives of late Smt.

Hashmatunnisa Begum, as such, decree is not

executable against them. The legal representatives

of late Smt. Hashmatunnisa Begum are not the

partners of the original partnership deed dated

14.04.1982. When such legal representative are not

parties to the contract, such contract cannot confer

rights or impose obligations arising under it on any

third party, except parties to it. No one but the

parties to the contract can be entitled under it or

born by it. Such principle is known as ‘Privity of

Contract’. When the partnership stands dissolved by

operation of law under Section 42(c) of the Indian

Partnership Act, 1932, the question of execution in

pursuance of the decree does not arise. There cannot

be any contract unilaterally without acceptance and

agreement by the legal heirs of the deceased

partner. If there are any clauses in the agreement,

entered into between the original partners, against

the third parties, such clauses will not bind them,

such of the clauses in the partnership deed, which

run contrary to provisions of Indian Partnership

Act, 1932, are void and unenforceable. Such clauses

are also opposed to public policy.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3311 OF 2015

S.P. Misra Vs  Mohd. Laiquddin Khan 

Coram:

R.Subhash Reddy,J.

Dated: October 18,2019

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Whether executing court re-open question of trusteeship in execution of decree?

 It is well-settled that

an executing court cannot travel beyond the order or decree

under execution (see Rameshwar Dass Gupta v. State of

U.P. and Another, (1996) 5 SCC 728).

In the present case, the Trial Court had already considered

the evidence on record and given a finding that the Appellant

and his uncle were the trustees of the temple. Notably,

Umapathymurthy was a party to this suit and had contested it

by filing a written statement, claiming to be the eldest son of

Sadhasivamurthy. However, at that time, he did not put forth

any objections to the heir certificate of Sadhasivamurthy, which

was considered by the Trial Court while arriving at its finding.

This judgment was confirmed by the First Appellate Court and

no further appeal was preferred by the Respondents against it.

In light of this, the findings of the Trial Court have become final,

and Umapathymurthy as well as the other Respondents are

bound by them.

By allowing them to re-open the question of trusteeship by

way of an application in an execution petition, the High Court

has gone beyond the decree to be executed and exceeded its

revisional jurisdiction under Section 115 of the CPC.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7800 OF 2014

S. Bhaskaran Vs  Sebastian 

MOHAN M. SHANTANAGOUDAR, J.

Dated:SEPTEMBER 13, 2019

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Whether decree will be extinguished even if there is no assignment of right?

The learned Trial Court was seized of the fact that the petitioners had taken a stand that the respondents had attempted to interfere in the property bearing Survey No. 6 in the village Potrem admittedly forming a part of the mining concession but was clearly swayed with the plea taken by the respondents that subsequent to the passing of the decree dated 26/11/1997, there were Agreements executed between the parties and to hold that whatever rights accrued in favour of the petitioners as decree holders pursuant to the decree were waived and acknowledging the rights of interference of the respondents including the survey number in question which was the subject matter of the execution proceedings.

6. It appears from the tenor of the impugned order that the Trial Judge was impressed by the execution of the Agreements of raising and sale entered into between the parties and in that context totally fell in error to hold at paragraph 17 that the petitioners had subsequent to the passing of the decree assigned its interest in the subject matter forming a part of the decree in question in favour of the respondents. There was no justification for such a finding by the learned Trial Judge when there was no Agreement nor any clause incorporated in the raising and sale Agreements that the petitioners were waiving their rights to the decree in their favour and/or that they were assigning their rights in the property in question in favour of the respondents.

7. I find merit in the contention of Shri S.D. Lotlikar, learned Senior Advocate for the petitioners that there was no acquisition of surface rights by the respondents and which tantamounted to acts of trespass thereby entitling the petitioners to seek the assistance of the Court by recourse to the execution proceedings initiated for the execution of the decree in their favour. Moreover, there was no quarrel at the instance of the respondents that the decree had become final in the absence of any challenge to it and the only question at large being whether such a decree was executable or otherwise. This question requires an answer that in the absence of any assignment of right in favour of the respondents, the decree in the petitioners' favour did not stand extinguished. The finding of the learned Trial Judge therefore that the decree got extinguished on account of the execution of the raising and sale Agreements is without any sound basis. Moreover, it was always open to the learned Trial Court to hold an enquiry in terms of Section 47 of the Act and decide whether the decree actually stood satisfied or not rather than hastily concluding in the absence of any contemporaneous record that it stood extinguished on the execution of the said Agreement of raising and sale of iron ore. The decree as rightly submitted by Shri S.D. Lotlikar, learned Senior Advocate for the petitioners subsisted and therefore the learned Trial Court was clearly in error to hold that it stood extinguished and was incapable of execution.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 798 of 2016

Decided On: 18.01.2018

Chowgule and Company Limited Vs. Nina De Conceicao Menezes E Antao

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation: 2018(4) MHLJ 291

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When judgment debtor cannot take objection to execution of decree?

The applicant failed to lead any evidence before the trial court when the proceedings were undertaken in the suit filed by the respondents and now the contentions raised on his behalf are nothing but an attempt to go behind the decree and in an ingenious way to raise objection on merits of the judgment and decree passed by the trial Court, even though admittedly it has attained finality in the absence of any challenge raised to the same on behalf of the applicant.

10. Such a judgment debtor who has failed to place his contentions on merits before the trial Court and who has failed to challenge the judgment and order passed against him, cannot be permitted to raise objection on merits of the decree before the executing Court. It is settled law that the executing court cannot go behind the decree and it has been so noted in a recent judgment in the case of Brakewel Automotive (supra), rightly relied upon by the learned counsel appearing on behalf of the respondents. The relevant portion of the said judgment reads as follows:-

"19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.

20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the excitability thereof.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 131 of 2017

Decided On: 23.03.2018

 Shankarlal Chhanulal Nagpure Vs. Pramodkumar Prahladrai Agrawal and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(4) MHLJ 672

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Notes on execution of decree- part 1

S 36.Provisions of this code relating to execution of decree are applicable to execution of orders.

S 37. Definition of court which passed a decree:-

a) Decree passed by appellate court,the court of first instance.

b) Court of first instance ceased to exist,the court having jurisdiction to try said suit.

S 38. Court by which decree may be executed:-

A decree may be executed either by the court which passed it,or by court to which it is sent for execution.

Read important judgments on execution of decree:
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S 39. Transfer of decree:-

1) Court which passed a decree may on the application of decree holder sent it for execution to another court of competent jurisdiction-

a) if the person against whom decree is passed is residing or working within the jurisdiction of that court.

b) if such person has no property within the local limits of jurisdiction of the court which passed the decree sufficient to satisfy such decree and has property within the local limit of jurisdiction of such other court,or

c) if the decree directs the sale or delivery of immovable property situate outside the local limits of jurisdiction of the court which passed it,or

d) if the court which passed the decree considers for any other reason,which it shall record in writing, that the decree should be executed by such other court.

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Whether third party can file objection to execution of decree for specific performance of contract?

There is no dispute regarding the fact that, the petitioner is third party purchaser during the pendency of litigation. Section 2(10) of CPC defines Judgment Debtor as under:

10. "Judgment debtor" means any person against whom a decree has been passed or an order capable of execution has been made.

6. It is clear that the petitioner is not judgment debtor as the decree passed was not against him. The decree holder wrongly arrayed the present petitioner in the execution application as one of the opponents.

7. Section 47 of the CPC reads as under:

47. Questions to be determined by the Court executing decree:-(1) 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, shall be determined by the Court executing the decree and not by a separate suit.

[2] * * * *

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Explanation I. For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.

8. It is apparent that the questions raised in the execution proceedings by the petitioner are not questions arising between the parties to the suit or representatives of the parties or purchaser of property in execution of decree. Thus, questions being raised by the petitioner need not really be decided by the Executing Court. Learned counsel for the petitioner admitted that the petitioner was not even a purchaser from the original defendants-judgment debtors to the suit. Not that the same would make any difference as far as Section 47 of CPC is concerned. Thus, the application filed by the judgment debtor objecting to the execution of the decree should have been rejected on this count. Keeping in view Section 47 of CPC, petitioner could not have been arrayed as party to the execution.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 17 of 2014

Decided On: 20.02.2014

Amol Vishwanath Bade Vs.  Dattatraya Dinkar Ghule.

Hon'ble Judges/Coram:

A.I.S. Cheema, J.

Citation; 2014 (3) ALL MR 644 Bom

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Which objections to execution of decree can be decided by court as per S 47 of CPC?

Judicial precedents to the effect that the purview of scrutiny Under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. MANU/SC/0531/1970 : 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection Under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:

A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

22. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University and Ors. MANU/SC/0381/2001 : AIR 2001 SC 2552, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power Under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4313-4314 of 2017 (Arising out of S.L.P. (C) Nos. 20745-20746 of 2016)

Decided On: 21.03.2017

 Brakewel Automotive Components (India) Pvt. Ltd.

Vs.

 P.R. Selvam Alagappan

Hon'ble Judges/Coram:

Arun Mishra and Amitava Roy, JJ.

Citation: 2017(6) MHLJ 47

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Whether execution of arbitration award can be challenged as per S 47 of CPC?

 This writ petition filed by the State under Article 227 of the Constitution assailing the order dated 22.9.2012, as passed by the teamed Sub-Judge-I, Patna in Execution Case Nos. 1 of 2010/11 of 2011, whereby the Executing Court rejected the petition of the State of Bihar filed under Section 47 read with Section 151 of the Code of Civil Procedure (hereinafter in short as 'CPC') for dismissal of the execution case filed for enforcement of Arbitral Award, on the ground of lack of jurisdiction of the Arbitrator to decide the matter and pass an award. The primal question to be decided in this writ petition is whether the State having challenged the jurisdiction of the Arbitral Tribunal before the Arbitral Tribunal itself at the stage of reference of dispute to the Arbitral Tribunal and the Arbitral Tribunal having ruled against the State and in favour of its jurisdiction, State not having then challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') could, later at the stage of execution proceedings, raise any objection under Section 47 read with Section 151 of the CPC.

In view of the judgments and binding precedent noted above, surely that was impermissible. Having abandoned the remedy under Section 34 of the Act, resort to Section 47 CPC was clearly impermissible, in view of the decision of the Apex Court in the case of Mallikarjun (supra). Having thus forfeited their rights, in view of the judgment of the Apex Court in the case of SBP & Co. (supra), they cannot expect this Court to exercise powers of superintendence under Article 227 to come to their rescue. The question that even if the award was a nullity, as understood in common civil law, absence of jurisdiction rendering the order nullity could set up the defence at any stage, such a principle would not govern the present dispute, inasmuch as what was said by the Apex Court recently in the case of MSP Infrastructure Limited (supra) that common civil law principle would not apply to the special law governing arbitration. Thus, on all counts, the objection on behalf of the writ petitioners State must fail. The learned Sub-Judge rightly rejected the objection petition and the impugned order cannot be interfered with. Accordingly, this writ petition is dismissed. 

IN THE HIGH COURT OF PATNA

CWJC No. 11026 of 2013

Decided On: 21.02.2017

The State of Bihar and Ors. Vs. Surendra Singh

Hon'ble Judges/Coram:

Navaniti Prasad Singh and Vikash Jain, JJ.

Citation: AIR 2017(NOC)1073 PAT

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Whether power available to court U/S 47 of CPC is narrower than those in appeal,revision,or review?

 It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.

20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.

21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:

“A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.”

22. Though this view has echoed time out of number in similar pronouncements of this Court, inDhurandhar Prasad Singh vs. Jai Prakash University and others, AIR 2001 SC 2552, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. 

Reportable

Supreme Court of India

M/S. Brakewel Automotive ... vs P.R. Selvam Alagappan on 21 March, 2017

Bench: Arun Mishra, Amitava Roy

Citation:(2017) 5 SCC 371,2017(6) MHLJ 47

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Whether Judgment debtor can raise objection about defect in execution petition at belated stage?

 Upon hearing learned counsel for the parties, it is clear
that Col. 3 of the execution petition bears the date of the decree to be
23.12.1998. In fact, the date mentioned in Col. No. 3 of the
execution petition is the date of the judgment of the trial court in
O.S. No. 50 of 1983. In an execution proceeding, the date of the 
decree means the date of the judgment as held in ILR 1950 (Cuttack
Series) 253. Thus, no exception can be taken to the date mentioned
in Col. 3 of the execution petition. The case of the petitioners is that
the decree holder-opposite party has put the decree of O.S. No. 50 of
1983 to execution, which has already been confirmed by the learned
District Judge, Khurda at Bhubaneswar in T.A. No. 8/7 of 2002/99.
Thus, applying the principles of doctrine of merger, it is the decree of
the first appellate court which should be executed and not the decree
of the trial court. Law is no more res integra on this issue as held in
the case of M/s. Gojer Brothers (P) Ltd. (supra). However, the
judgment debtors-petitioners have not raised any such objection in
their petition filed under Section 47 of the C.P.C. (I.A. No. 524 of
2010). The objection raised in the petition under Section 47 of the
C.P.C. has already been complied with and the matter has been set
at rest. Further, Order 21 Rule 17 C.P.C. casts an obligation on the
executing court to verify whether there is any defect in the execution
petition for non-compliance of the Rules 11 to 14 of Order 21 C.P.C.
If the Court finds any defect in the execution petition, it shall call
upon the decree holder to rectify the same either then and there or
grant some time to the decree holder for removal of the same. Such
power of the Court can be exercised at any stage of the execution
proceeding. The judgment debtors-petitioners cannot take advantage
of such non-compliance as their objection with regard to
maintainability of the execution proceeding can only be raised under 10
Section 47 of the C.P.C.
 HIGH COURT OF ORISSA: CUTTACK
 CMP NO. 404 OF 2016

Ghanashyam Pradhan and two others 
Versus
Ram Pratap Kheria.

 Date of Judgment: 11.04.2016

P R E S E N T:
  SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2017(NOC) 38 Orissa

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Whether executing court can decide legality and validity of arbitration award?

 I also cannot overlook the facts emerging from the records that
the minutes of the every sittings were served upon the opposite party but
despite receiving those minutes the opposite party chose not to appear
before the Learned Arbitrator nor took any steps as provided under
different sections of the Arbitration & Conciliation Act, 1996. They have
waited till the award was passed.34. It shocks the conscience of the Court that the Learned Court
below after entertaining the application for execution and passed
attachment order against the opposite party and further after rejecting
the application under Section 47 of the Civil Procedure Code filed by the
opposite party how could the Learned Court below allow the second
application filed under Section 47 of the Civil Procedure Code by the
opposite party thereby recalling the attachment order as well as holding
that the award was invalid and in-executable when admittedly the Court
below had no jurisdiction to entertain and decide any question as to the
legality and validity of the award in any manner whatsoever.
Submissions of Mr. Saha also do not impress this Court that the
filling of 2nd application under Section 47 of the Civil Procedure Code was
not hit by the principles of res judicata though under Civil Procedure
Code the opposite party has the right either to file an application before
this Learned Court if they felt that all the issues raised in the earlier
application under Section 47 of the Civil Procedure Code were not
decided by the Learned Judge vide the earlier Order they should have

preferred appeal from the said order.

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL CIVIL JURISDICTION
APPELLATE SIDE
Present:  Justice Samapti Chatterjee
C.O. 3955 of 2015
Fingertips Solutions Pvt. Ltd.
Vs
Dhanashree Electronics Limited
Judgment on : April 27, 2016.
Samapti Chatterjee, J.
Citation:2016(NOC)690 Cal

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Whether Executing court can alter term of consent decree?

We are of the view that, in the present case, Section 47 C.P.C. application made by the respondents herein was totally misconceived. It was not maintainable. The Executing Court had no authority to set aside, modify or vary the consent decree dated 26th April, 2002. We have quoted above Clause-K of the Scheme annexed to the consent decree. Clause-K makes the valuation by Ernst & Young final and binding on the disputing parties. If, according to the respondents, the opinion of the Valuer was tainted, biased or that they had failed to do their duty as a Valuer, then, appropriate proceedings ought to have been taken by the respondents either for setting aside or modifying the consent decree before the Competent Court but not in the Executing Court which has no power to set aside, modify or vary the decree. It was not open to the respondents to move under Section 47 C.P.C. for the relief, namely, to have the valuation report set aside as that would amount to virtually setting aside a portion of the consent decree which, as 

stated above, constituted very core and the basis of the consent decree. In our view, therefore, without going into the merits of the matter, we hold that Section 47 C.P.C. application made by the respondents was not maintainable and ought not to have been entertained by the Executing Court.

Supreme Court of India

M/S. Premium Exchange & Finance ... vs M/S. S.N. Bagla & Co. & Ors on 16 July, 2008

Bench: S.H. Kapadia, B. Sudershan Reddy

Citation;2009(3) ALLMR 472 SC, 2009 (74) ALR 604, 2008(2)OLR498, 2008(II)OLR(SC)498, 2009 106 RD516, 2008(2)UJ913

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QUESTION ANSWERS FOR JUDICIAL SERVICE(Execution of decree)

1] Whether the tenant has right to raise resistance after the decree of eviction and possession, u/s 47 and u/o 21 rule 97 to 104 of Code of Civil Procedure?

Ans: When tenant is dispossess without following due procedure of law, he has right to raise resistance. (Sumeer Sobhan Sanyal  Vs. Tracks Trade Pvt. Ltd. AIR 1996 S.C. 2102 )  

2] Can the executing Court go behind the decree, if the Court which passed the decree had no jurisdiction?

Ans: Yes

3] Whether the decree for specific performance is a preliminary decree or a final decree?

Ans: Decree for specific performance is preliminary decree.

4] Whether the Co-sharer in immovable property has right to resist the decree under Order 21, rule 97 to 104 read with section 47 of Code of Civil Procedure?

Ans: No

5] Whether time can be extended by executing court for compliance of directions given in a specific performance of contract?

Ans: Yes

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Whether court in land acquisition proceeding can permit addition of legal representative during execution of decree?

Though, served, the Respondent Nos.1
and 2 did not appear. They did not raise any
objection. On perusal of the impugned order, it
is explicit that relationship between the
petitioner and deceased Bansi is not in dispute.
Not only that but vide reply Exh.15, the
Respondent NO.1 Chandrabhagabai has shown her
willingness to give due share to the petitioner.
The application came to be rejected only on the
ground that the award shows names of the
Respondent Nos.1 and 2 and none other. This can
not be the ground to dislodge claim of the
petitioner. The Executing Court is required to
determine all questions which arise in the course
of execution of a decree as required U/s 47 of
the C.P.C.

5. In "Gangabai Gopaldas Mohata Vs.
Fulchand and others" 1997 (2) B.C.J.(S.C.) 347,
the Apex Court held that the Executing Court is
empowered to resolve the dispute relating to
claim of somebody regarding representation of the
decree holder and its denial by the decree
holder. In the present case, the Respondent Nos.
1 and 2 did not, in fact, denied legal rights
available to the petitioners. The application of
the petitioner could not be rejected only for the
reason that her name does not appear in the
decree. The impugned order is quite perverse and
is rendered without application of judicial mind.
Considering these aspects, the petition deserves
to be allowed.



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.887
OF 2008.

Suman  Bhausaheb Bhingardive  Vs Chandrabhagabai  Banshi
Bhingardive 

Citation;2009 (6) MH LJ 196
CORAM : V.R.KINGAONKAR,J.
Date : 03.07.2009.

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Whether judgment debtor can make application for execution of decree u/s 47 of cpc?

Under s. 47, which deals with the power of the Court executing the decree all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the A execution proceeding and not by a separate suit. The expression "Court executing the decree" in the section does not mean a "court which is seized of an application for execution of a decree at the instance of the decree holder." A question relating to execution discharge or satisfaction of a decree may be raised by the decree- holder or by the judgment-debtor in the execution department and the pendency of -an application for execution by the decree-holder is not a condition for the exercise of the Court's power. An application made by the judgment debtor in relation to execution, discharge or satisfaction of a decree. in 'a suit to which he or the person of whom he is a represenitative was a party, is an application before the court executing the decree, and must be tried in that court. 1
The case debated on whether an application by the wife for recording satisfaction, which was filed after the order of decree passed for restitution of conjugal rights was maintainable- The decree-holder-husband had not applied for execution of decree - It was held that the application of the wife could be maintained only under Section 47 of the Code of Civil Procedure (5 of 1908) and not under Order 21 of Rule 2 of the Act

Supreme Court of India

M. P. Shreevastava vs Mrs. Veena on 24 August, 1966

Equivalent citations: 1967 AIR 1193, 1967 SCR (1) 147

BENCH:

SHAH, J.C.

WANCHOO, K.N.

BACHAWAT, R.S.

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Whether Application U/S 47 of CPC can be filed even though execution application is not pending?

On behalf of the revision petitioner it is contended that as per Section 47, Civil Procedure Code, all matters arising in execution can be decided by the Court. He also relies upon the case reported in M.P. Shreevastava v. Mrs. Veena MANU/SC/0016/1966 : [1967] 1 SCR 147, where the Supreme Court observed that in so far as the proceedings under Section 47 are concerned the expression "Court executing the decree" occurring in Section 47 does not mean only a "Court which is seized of an application for execution of a decree at the instance of the decree-holder". A question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and the pendency of an application for execution by the decree-holder is not a condition precedent fair the exercise of the Court's power under Section 47.

Citation;1982-95-LW327, (1982)2MLJ300

IN THE HIGH COURT OF MADRAS

Decided On: 21.12.1981

 A.V. Mohamed Ali Sahib

Vs.
Respondent: Naina Mohammed Maracair

Hon'ble Judges/Coram: R. Sengottuvelan, J.

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Remedies to auction purchaser who purchases property in court auction

Whether an auction purchaser who purchased the property in execution of a decree of a civil court could file a separate suit for delivery of vacant possession of immovable property or whether his remedy is limited to an application under O.21, R.95, Civil Procedure code is an important issue where unfortunately one could find conflicting views among different benches of the Hon’ble Supreme Court of India.

Section 47 of the Civil Procedure code provides that 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, shall be determined by the court executing the decree and not by separate suit. By virtue of explanations to S.47 as it stands now, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed so also all questions relating to delivery of possession of such property to such purchaser or his representative shall be deemed to be a question relating to the execution, discharge or satisfaction of the decree within the meaning of S.47.

The object of S.47 is to preclude the unnecessary expense and delay that fresh trials entail. Obviously Section 47 would bar a suit when the same relief could be obtained by an application therein. 

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