PROJECT-REPORT

Code of Civil Procedure

QUESTIONS TO BE DETERMINED
BY EXECUTING COURT

SUBMITTED TO

SUBMITTED BY

DR. KARAN JAWANDA

AKSHIT GULERIA

DEPARTMENT

ROLL NO.

U.I.L.S, P.U.

09/12

CHANDIGARH

SEMESTER
8TH
SECTION
A

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. I would also like thank the
department library for the immense contribution it played in the
completion of this project on time.

THANKING YOU!
AKSHIT GULERIA
09/12

TABLE OF CASES
GANGA BAI V. VIJAY KUMAR, AIR 1974 (2) SCC 393 .8
GARIKAPATI VEERAYA V. N. SUBBIAH CHAUDHARY AIR 1957 SC 540 16
GHAN SHAYAM DAS V. ANANT KUMAR SINHA, AIR 1991 (4) SCC 379 .16
HARNANDRAI V. DEBIDUTT AIR 1973 (2) SCC 467 ..9
JUGALKISHORE V. RAW COTTON CO. LTD, AIR 1955 SC 376 8
MANISH MOHAN SHARMA RAM BAHADUR THAKUR LIMITED AIR 2006 (4) SCC 416
..10
MERLA RAMANNA V. NALLAPARAJU, AIR 1956 SC 87 8
MILIND MARESHWAR KOWLEY V. MANOHAR BHASKAR KOWLEY AIR 2006 SC 2454
11
MOHD. MASTHAN V. SOCIETY OF CONGREGATION OF THE BROS. OF THE SACRED HEART
AIR 2006 (9) SCC 344 ..12
PARSHAVA PROPERTIES TLD V. A.K. BOSE, AIR 1979 PAT 308 .15
PRATAP NARAIN V. RAM NARAIN, AIR 1980 ALL 42 (FB) 15
PROSUNNO COMMAR V. KASI DAS, ILR 1895 (19) CAL 683 7
SASI SEKHARESHWAR V. LALIT MOHAN, AIR 1925 PC 34 7
UNION OF INDIA V. S.B SINGH, AIR 1988 ALL 225 ..9
VEDIC GIRLS SENIOR SECONDARY SCHOOL, ARYA SAMAJ MANDIR V. RAJWATI AIR 2007 (5)
MAH LJ 384 ..12

TABLE OF CONTENTS
S. NO.
1

PARTICULARS

P.NO.

INTRODUCTION

PROVISIONS OF SECTION 47

OBJECT OF SECTION 47

NATURE AND SCOPE

ESSENTIALS OF SECTION 47

POWERS OF THE
EXECUTING COURT

13

DUTIES OF EXECUTING
COURT

13

OBJECTION TO VALIDITY OF
DECREE

13

BAR OF SUIT

14

10

APPEAL

14

11

REVISION

16

12

PENDING MATTERS

16

13

CONCLUSION

16

14

BIBLIOGRAPHY

17

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.
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SUB SECTION 2:
Sub-section 2 was omitted by C.P.C (Amendment) Act 1976.

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.
1

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
6

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
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.

2. PROSUNNO COMMAR V. KASI DAS, ILR 1895 (19) CAL 683

3 SASI SEKHARESHWAR V. LALIT MOHAN, AIR 1925 PC 34.

NATURE AND SCOPE

The scope of section 47 is very wide. Exclusive jurisdiction has been confessed
on the executing court in respect of all matters relating to execution, discharge
or satisfaction of a decree arising between the parties or their representatives.
Once the suit is decreed, this section requires that the executing court alone
should determine all questions in execution proceedings and filing of a separate
suit is barred.4
Since section 47 embraces all matters connected with the execution of a decree
between the parties or their representatives, and covers all questions relating to
the execution, discharge or satisfaction of the decree, it should be liberally
7

construed so as to empower the court to determine all such questions, unless

they clearly fall outside the scope and purview of it. It does not matter whether
such questions arise before or after the decree has been executed.5
The provision is not ultra vires Article 14 of the Constitution.6

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.

4. JUGALKISHORE V. RAW COTTON CO. LTD, AIR 1955 SC 376

5. MERLA RAMANNA V. NALLAPARAJU, AIR 1956 SC 87
6. GANGA BAI V. VIJAY KUMAR, 1974 (2) SCC 393

1 - 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. whether a decree is executable
2. whether the property is liable to be sold in execution of the decree
3. whether the decree is fully satisfied
8

4. whether the execution of decree was postponed

5. whether an application to set aside sale is maintainable
6. whether the sale in execution is warranted by the terms of the decree
7. whether a particular property is or is not included in the decrees
8. whether a party is or is not a representative of a party
9. whether the decree-holder is in a position to carry out his part of a decree
10.whether the decree-holder is entitled to mould relief in accordance with
the change of circumstances
11.whether decree has been adjusted outside the court
12.whether the decree has been validly assigned
13.whether the auction-purchaser is entitled to recover possession
14.the question regarding the identity of property
15.The question regarding attachment, sale or delivery of property etc.
Before the Amendment Act of 1976, there was a difference of opinion amongst
different high courts as to whether the question of delivery of possession of the
property to be given to an auction-purchaser fell under section 47. Of course, in
the case of HARNANDRAI V. DEBIDUTT,8 the execution, discharge or
satisfaction of the decree. At the recommendation of the law commission, clause
b to Explanation 11 has now been inserted, which in express terms provides that
all questions relating to delivery of a decree shall be deemed to be questions
relating to the execution, discharge or satisfaction of the decree.
7. UNION OF INDIA V. S.B SINGH,AIR 1988 ALL 225
8. 1973 (2) SCC 467

In PADMA BEN BANUSHALI V. YOGENDRA RATHORE 9, the appellants

and respondents had entered into a conditional agreement that the appellants
shall not execute the decree against the respondents if the respondents would
execute a sale deed in their favour in respect of suit property. In terms of this
agreement, the appeal of respondents was allowed to be withdrawn but the said
agreement was not recorded. The respondent did not execute the sake deed,
instead filed a suit for specific performance of the said agreement. The
appellants tried to execute the decree. The Supreme Court held that the
application for withdrawal of appeal did not amount to conscious waiver on part
of appellants. Since appeal did not amount to conscious waiver on part of
applicants. Since the agreement was not recorded as required under Order XXI
Rule 2, it could not have been recognized by the executing courts. Thus the
9

excitability of the decree had not been affected. The rights in the decree had not
been surrendered and the decree remained preserved.

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.

In MANISH MOHAN SHARMA RAM BAHADUR THAKUR LIMITED 10,

the apex court held that effort of executing court must be to see the parties are
given fruits of the decree. This mandate is reinforced when it is a consent decree
and doubly reinforced when the consent decree is the family settlement.

9. 2006 (12) SCC 138

10. 2006 (4) SCC 416

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
10

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
12. A question relating to maladministration by the executor of the deceased
judgement-debtor
13. An order fixing or refusing to fix upset price of the property sought to be
sold in execution
14. A question of return of movables not covered by the decree
15. A question regarding compensation for wrongs committed by the
offences of the court in execution of the decree
16.A question regarding contribution amongst judgment-debtors.
In MILIND MARESHWAR KOWLEY V. MANOHAR BHASKAR
KOWLEY11, the consent decree granted the plaintiff the option to purchase the
suit property and to complete the sale by the dates specified for the said two
purposes. The plaintiff exercises the option within the time stipulated and
deposited part of the price. The courts below concurrently gave the finding that
the plaintiff was always ready and willing to deposit the balance amount but
could not do so on account of delaying tactics of judgment-debtors. The courts
11. AIR 2006 SC 2454

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.

11

2 -

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 suita) 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.

12. 2007 (5) MAH LJ 384

13. 2006 (9) SCC 344

POWERS OF THE EXECUTING COURT

An executing court has plenary power to determine all questions relating to
execution of a decree. The section, however, applies only to matters arising
subsequent to the passing of the decree. It covers all questions which arise
before as well as after the decree has been executed. For the said purpose, the
court can treat a suit as an execution application or an execution application as a
suit in the interests of justice. When such power is exercised, normally the
relevant date would be the date on which the original proceeding was instituted
and not the date of conversion. An executing court can mould relief in the light
of changed circumstances.

DUTIES OF EXECUTING COURT

12

An executing court cannot go behind the decree. It has to execute the decree as
it is. It cannot question correctness or otherwise of the decree. But where the
terms of the decree are vague or ambiguous, it is the duty of the executing court
to interpret the decree with a view to find out and ascertain the meaning of the
terms used. Again, where there is inherent lack of jurisdiction on the part of the
court passing the decree, the executing court can refuse to execute the decree.

OBJECTION TO VALIDITY OF DECREE

A court executing a decree cannot go behind the decree. But an objection as to
its validity can be raised in execution proceedings if such objection appears on
the face of the record. If the objection requires examination or investigation of
facts, the executing court cannot entertain such objection.

BAR OF SUIT
Section 47 of the code bars a suit in respect of any objection in relation to
execution proceedings. The bar is, however, limited to questions relating to the
execution, discharge or satisfaction of the decree and not to issues which are
totally different. If the case is not covered or the objection does n to fall within
four corners of section 47, the bar will not operate and suit would lie. Whether a
subsequent suit is barred under section 47 of the code depends upon the nature
of the decree which is to be executed and the relief claimed in the suit.14

APPEAL
Before the Amendment Act of 1976, the determination of a question under
section 47 was deemed to be a decree within the meaning of section 2(2) of the

13

code and was, therefore, subject to first appeal under section 96 and also a
second appeal under section 100.
Sub-section (2) of section 47 as it stood before the Amendment Act of 1976
empowered the court to treat an application under section 47 as suit, or a suit as
an application. The deletion of the word and figure section 47 from the
definition of decree in section 2(2) has now radically changed the position. The
determination of any question under section 47 is no longer deemed to be a
decree within the meaning of section 2(2) and is, therefore, not appealable under
section 96 or section 100 of the code. Sub-section (2) of section 47 has,
consequently, been omitted by the Amendment Act of 1976.
There is however, difference of opinion as to whether even after the amendment
act of 1976, a determination of a question under section 47 would still be a
decree or not.

14. TAKWANI C. K , CIVIL PROCEDURE WITH LIMITATION ACT,1963, 7 TH ED, EASTERN

BOOK COMPANY, LUCKNOW, 2015, P.685

On one hand the High Court of Patna 15 has taken the view that by the
Amendment Act of 1976, only the statutory fiction a determination of a
question under section 47 shall be deemed to be a decree has been omitted,
still, however, if an order passed by a court satisfies the essential ingredients of
section 2(2), it would amount to a decree.
On the other hand the High Courts of Allahabad, Andhra Pradesh, Bombay,
Gauhati, Madras, Kerela, Patna, Punjab and Rajasthan have taken the view that
after the Amendment Act of 1976, an order passed under section 47 would
amount to a decree under section 2(2).
It is submitted the latter view seems to be more rationale for three reasonsFirstly, as stated in the statement and objects of the provision the provision was
mainly responsible for delay in the execution of decrees and the joint
committee, therefore, recommended to omit the determination of a question
under section 47 from the definition of a decree in section 2(2).
14

Secondly, the omission of sub-section (2) of section 47 is made in pursuance of

the legislative policy that all questions between the parties to the suit in which
the decree was passed and their representatives should be disposed of under
section 47 and not by separate suit. The result is that a determination of any
question within this section would no longer be regarded as a decree.
Thirdly, wherever any order is intended to be made appealable as a decree, a
specific provision is made to that effect in the code itself. It follows, therefore
that the deletion of such a provision in the definition of decree in sub-section
(2) of section 2 indicates the intention of the legislature not to make an order
under section 47 appealable as a decree.
However, if a decree is passed prior to passing of the Amendment Act of 1976, a
right can be said to have accrued in favour of a party to file an appeal against
such a decree even after the amendment act of 1976 came into force.16

15. PARSHAVA PROPERTIES TLD V. A.K. BOSE, AIR 1979 PAT 308
16. PRATAP NARAIN V. RAM NARAIN, AIR 1980 ALL 42 (FB)

REVISION
Since after the Amendment Act of 1976 and order under section 47 does not
amount to a decree, it is not appealable under section 96 and section 100. A
revision application under section 115 of the code is, therefore, maintainable
provided the conditions laid down in section 115 are satisfied. No writ petition,
however, would be maintainable.17

PENDING MATTERS
Section 97 of the Amendment Act of 1976 declares that the amendment made in
section 2(2) will not affect pending appeals and they will defeat with as if the
amendment had not come into force.18
15

CONCLUSION
Section 47 is the most important section in the code relating to execution of the
decree. However section 47 does not apply To a decree of a foreign court
To a decree which is a nullity
Where the defendant was dead at the time of passing of the decree.

17. GHAN SHAYAM DAS V. ANANT KUMAR SINHA, 1991 (4) SCC 379
18. GARIKAPATI VEERAYA V. N. SUBBIAH CHAUDHARY AIR 1957 SC 540.

BIBLIOGRAPHY
MATHUR D.N, THE CODE OF CIVIL PROCEDURE, 2 ND
ED, CENTRAL LAW PUBLICATIONS, ALLAHABAD, 2001
TAKWANI C.K, CIVIL PROCEDURE WITH LIMITATION
ACT,1963, 7TH ED, EASTERN BOOK COMPANY,
LUCKNOW, 2015

16