CPC Sec. 42(c), 42(3)(a-b)

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POWERS OF EXECUTING COURT

42. POWERS OF COURT IN EXECUTING TRANSFERRED DECREE.

1. The Court executing a decree sent to it shall have the same powers in executing such decree  as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

2. Without prejudice to the generality of the provisions of sub-section (1) the powers of the Court under that sub-section shall include the following powers of the Court passed the decree, namely:-

a. power to send the decree for execution to another Court under section 39;

b. power to execute the decree against the legal representative of the deceased judgment-debtor under section 50;

c. power to order attachment of a decree.

3. A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.

4. Nothing in this section shall be deemed to confer on the Courts to which a decree is sent for execution any of the following powers, namely-

a. power to order execution at the instance of the transferee of the decree;

b. in the case of a decree passed against a firm, power to grant leave to execute such decree against any person other than such a person as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI.]

Section 42 of the Code expressly confers upon the court executing a decree sent to it the same powers as if it had been passed by itself.

It is thus power and duty of the executing court to ensure that the defendant gives the plaintiff the very thing the decree directs and nothing more or nothing less.

At the same time, the Code requires that the court executing the decree does not exercise power in respect of the matters which could be determined only by the court which passed the decree.

To put it differently, the powers to be exercised by the executing court  relate to procedure to be followed in execution of a decree and do not extend to substantive rights of the parties. 

The executing court cannot convert itself into the court passing the decree

GENERAL PRINCIPLES

With regard to the powers and duties of executing courts, the following fundamental principles should be borne in mind:

1. As a general rule, territorial jurisdiction is a condition precedent to a court executing a decree, and, therefore, no court can execute a decree in respect of property situate entirely outside its local jurisdiction.

2. An executing court cannot go behind the decree. It must take the decree as it stands and execute it according to its terms. 

3. It has no power to vary or modify the terms. It has no power to question its legality or correctness. This is based on the principle that a proceeding to enforce a judgment is collateral to the judgment and, therefore, no inquiry into its regularity or correctness can be permitted in such a proceeding.

4. In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its invalidity could be set up wherever and whenever it is sought to be enforced, whether in execution or in collateral proceedings. In such a case, there is no question of going behind the decree, for really in the eye of the law there is no decree at all.  (Sunder Dass v. Ram Prakash, (1977) 2 SCC 662, (Surinder Nath v. Union of India, AIR 1988 SC 1777;)

5. Inherent lack of jurisdiction, however, must appear on the face of the record. (Hira Lai v. Kali Nath, AIR 1962 SC 199; Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (1970) 1 SCC 670.) Hence, if the decree on the face of it discloses some material on the basis of which the court could have passed the decree, it would be valid. In such a case, the executing court must accept and execute the decree as it stands and cannot go behind it. To allow the executing court to go behind that limit would be to exalt it to the status of a superior court sitting in appeal over the decision of the court which has passed the decree. (Nagindas v. Dalpatram, (1974) 1 SCC 242.

6. A decree which is otherwise valid and executable, does not become inexecutable on the death of the decree-holder or of the judgment- debtor and can be executed against his legal representatives. (Parbati Debi v. Mahadeo Prasad, AIR 1979 SC 1915; V. Uthirapathi v. Ashrab Ali AIR 1998 SC 1168.)

7. When the terms of a decree are vague or ambiguous, an executing court can construe the decree to ascertain its precise meaning. For this purpose, the executing court may refer not only to the judgment, but also the pleadings of the case. (Bhavan Vaja v. Solanki Hanuji Khodaji, (1973) 2 SCC 40: AIR 1972 SC 1371 at p. 1374; Topanmal v. Kundomal, AIR i960 SC 388; Rajinder Kumar, supra.)

8. An executing court can go into the question of the executability or otherwise of the decree and consider whether, by any subsequent developments, the decree has ceased to be executable according to its terms. (Jai Narain v. Kedar Nath, 1956 SCR 62; Haji Sk. Subhan v. Madhorao, AIR 1962 SC 1230 ; Sudhir Kumar v. Baldev Krishna, (1969) 3 SCC 611: Vidya Sagar v. Sudesh Kumari, AIR 1975 SC 2295; Bai Dosabai v. Mathurdas Govinddas, (1980) 3 SCC 545 at pp. 552-54:  Tiko v. Lachman, 1995 Supp (4) SCC 582; Maguni Charan v. State of Orissa, (1976) 2 SCC 134)

9. A decree which becomes inexecutable by operation of law, may become executable by virtue of a subsequent amendment in the statute and can be executed after such amendment. (Dularey Lodh v. ADJ, Kanpur, (1984) 3 SCC 99 at pp. 103,106: AIR 1984 SC 1260; Narhari Shivram v. Pannalal Umediram, (1976) 3 SCC 203: AIR 1977 SC 164.

10. The executing court has power to mould the relief granted to the plaintiff in accordance with the changed circumstances. (Yasbpal Singh v. ADJ, (1992.) 2 SCC 504 at p. 506; Haji Sk. Subhan v. Madhorao, AIR 1962 SC 1230 at p. 1237: 1962 Supp (1) SCR 123.

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