CPC Sec.47

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SECTION 47

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.

S. 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.

Clause 2 is Repealed

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.

OBJECT

The underlying object of this provision is to provide cheap and expeditious remedy for determination of certain questions in execution proceedings without recourse to a separate suit and to prevent needless and unnecessary litigation. Section 47, therefore, must be construed liberally. Harnandrai Badridas v. Debidutt Bhagwati Prasad, (1973) 2 SCC 467; Desk Bandbu Gupta v. N.L. Anand, (1994) 1 SCC 131; Ramchandra Spg. & Wvg. Mills v. Bijli Cotton Mills Ltd., AIR 1967 SC 1344: (1967) 2 SCR 301.

NATURE AND SCOPE

The scope of Section 47 is very wide. Exclusive jurisdiction has been conferred 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.

It does not matter whether such questions arise before or after the decree has been executed. ▪ Merla Ramanna v. Nallaparaju, AIR 1956 SC 87; Imdad Alt v. ]agan Lai, ILR (1895) 17 All 478; Copal Rat v. Rambhanjan Rai, AIR 1922 Pat 166; Sansar Chand v. Sham Lai, AIR 1957 Punj 307. Ganga Bai v. Vijay Kumar, (1974) 2. SCC 393: AIR 1974 SC 1126; Rami Manprasad v. Gopichand, (1973) 4 SCC 89: AIR 1973 SC 566; Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175: AIR 1975 SC 1234; Vijay Prakash v. Collector of Customs, (1988) 4 SCC 402: AIR 1988 SC 20x0; Narmada Devi v. Ram Nandan Singh, AIR 1987 Pat 33 (FB).

The provision is not ultra vires Article 14 of the Constitution.

CONDITIONS

In order that this section may apply, the following conditions must be satisfied:

1. The question must be one arising between the parties to the suit in which the decree is passed, or their representatives; and

2. It must relate to the execution, discharge or satisfaction of the decree.

PARTIES OR THEIR REPRESENTATIVES

The first condition for the applicability of Section 47 is that the question to be determined by the court must be one arising between the parties to the suit or their representatives.

The expression “parties to the suit” does not mean de facto parties on record, or parties on opposite sides as plaintiff and defendant, but means parties opposing each other.

Thus, in a partition suit, parties who are co-defendants are often arrayed against each other; and therefore, a question between them relating to execution falls within Section 47.

On the other hand, questions arising between the parties who are not opposed to each other or between a party and a stranger do not fall within this provision.

A purchaser of a property at a sale in execution of a decree, though a stranger to a suit, is deemed to be a party to the suit in which the decree has been passed. Expln. II(a); see also, Ameena Bi v. Kuppuswami Naidu, (1993) 2 SCC 405: AIR 1993 SC 1628. Whether a person is or is not a party to the suit should be decided not on the basis whether he is a party to the decree but whether he is a party to the suit in which the decree is passed. Sistla Saraswatamma v. Paruvada Maki Naidu, AIR 1940 Mad 881; Samhut Rai v. Sambaran Rai, AIR 1944 Pat 105.

The term “representative" in Section 47 includes not only “legal representatives” in the sense of heirs, executors or administrators as defined in Section 50 of the Code, but also a “representative-in-interest”, i.e. any transferee of interest of the decree-holder or the judgment-debtor who is bound by the decree.

Whether a person is a “representative” or not can be decided by applying two tests:

1. Whether any portion of the interest of the decree-holder or of the judgment-debtor, which was originally vested in one of the parties to the suit, has by an act of the parties or by operation of law, vested in the person who is sought to be treated as a representative; and

2. If there has been devolution of interest, whether, so far as such interest is concerned, that person is bound by the decree.

EXECUTION, DISCHARGE OR SATISFACTION OF DECREE

The second 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 or satisfaction of the decree” has not been defined in the Code, it covers question of executability or non-executability of a decree.

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;

4. whether the execution of the 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 decree;

8. whether a party is or is not entitled to restitution of property;

9. whether a person is or is not a “representative” of a party;

10. whether the decree-holder is in a position to carry out his part of the decree;

11. whether the decree-holder is entitled to mould relief in accordance with the change of circumstances;

12. whether the decree has been adjusted outside the court;

13. whether the auction-purchaser is entitled to recover possession;

14. whether the decree has been validly assigned;

15. the question regarding identity of property;

16. 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.

In the case of Harnandrai Badridas v. Debidutt Bhagwati Prasad (1973) 2 SCC 467 at p. 471. the Supreme Court had taken the view that such question relates to the execution, discharge or satisfaction of the decree.

At the recommendation of the Law Commission, (Law Commission’s Twenty-seventh Report at p. 108.) clause (b) to Explanation II has now been inserted, which in express terms provides that all questions relating to delivery of possession of the property to a purchaser at the sale in execution of a decree shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree.

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 inexecutable 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 the court which passed the decree;

4. a question relating 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 partition in a partition suit;

11. a question relating to the amount of mesne profits;

12. a question relating to maladministration by the executors of the deceased judgment-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 officers of the court in execution of the decree;

16. a question regarding contribution amongst judgment-debtors, etc.

Q. A brings a suit against B and C or the recovery of possession of a plot of land. The suit is dismissed against C for want of causes of action, and is decreed against B. A, in execution of this decree has taken delivery of possession of land in excess of the decree. The excess belongs to C. Explain what remedy is available to C.

Ans. C must proceed by an application under section 47, CPC, to the court which is executing the decree of A.

He is a ‘party to the suit’ for the purposes of section 47 and therefore his remedy in respect of any question relating to the execution of the decree is by an application under section 47 and not by a separate suit.

The explanation to Sec. 47 provides: “For the purpose of this section, a plaintiff whose suit has been dismissed, a defendant against whom suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit."

Q. A brought a suit for possession over certain property against B in the Court of Munsif, Allahabad. An objection was taken that the suit was not cognizable by the civil court. The Munsif took the view that he had jurisdiction to try suit, and decreed the suit. A executed the decree and in execution B raised an objection that the civil court had no jurisdiction to try the suit. Was such an objection entertainable? Give reasons for your answer.

General principle.—

Execution follows decree and the proceedings taken to enforce the decree are execution. So, the execution court must abide by the directions contained in the decree and cannot question the correctness of the decree. The decree must be executed according to its terms and as it is.

It is not the business of the execution court to criticize the decree or to give relief against its rigour.

Even subsequent events are not to be taken in consideration for modifying the decree.

No relief about which the decree does not expressly mention can be granted such as addition of costs, interest or mesne profits.

The execution court cannot enter into the question whether the decree has been obtained by fraud or is invalid.

So, the matters already agitated by parties are not open to be reagitated before the. execution court.

All objections relating to the pecuniary or territorial jurisdiction cannot be raised in execution-proceedings, but if they are based upon some other ground they can certainty be raised such as the question that the court has no jurisdiction to try a certain type of suit. As in such a case the decree passed is a nullity.

Q. Discuss whether private interest transferred from a decree-holder to auction-purchaser is his representative-in intrest within the meaning of Sec. 47.

Yes, The term ‘representative’ in section 47 includes not only ‘legal representative’ in the sense of heirs, executors or administrators, but also ‘representative-in-interest’, that is, any transferee of the decree-holder's interest, or any transferee of the judgment-debtor’s interest so far as such interest is concerned, is bound by decree.”— Ishan Chanderv. Beni Madhub,[24 Cal. 62 (FB)].

Q. Discuss, whether the purchaser at an execution sale of the equity of redemption in mortgaged properties can come in execution proceedings under a decree upon the mortgage as a representative of the judgment-debtor under Sec. 47.

Yes, a purchaser of the equity of redemption in the mortgaged property, subsequent it to the mortgage decree is a representative of the mortgagor judgment-debtor, for the property having been purchased after the mortgage-decree the purchaser is to that extent bound by the decree.—Ajudhya Pd.v. Hardwara Roy,[9 CLJ 48]. The same result would follow of the equity of redemption if purchased ‘before’ the mortgage decree but during the ‘pendency’ of the suit. (Prameshwariv. Ram,AIR 1937 PC 260).

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