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Lack of Inherent Jurisdiction And Power of Executing Courts: An Explainer of Section 47 of CPC 1908

A prominent legal implication, which usually executing courts face in India, is the challenge to decree passed by court of law by judgment debtor or any other person either independently or on behalf of judgment debtor covertly under disguise of infringement of his interests. In a land of litigation like that of India, where the crores of cases are pending in subordinate courts, such challenges to the decree at stage of execution not only violate the rights of decree holder but is also against the administration of justice.

Several times, applications are made at executing courts frivolously just to delay the process of execution. Although law of land through catena of judgments is by and large clear on the subject issue, but many times applicants succeed to mislead the courts by taking the present loopholes in law by misrepresenting them.

There is legal principle that the executing court shall not go behind the decree, which means once the decree is passed by a court, the executing court shall not tinker with the findings of the court who passed the decree. The executing court shall execute the decree in accordance with and in concurrence to the court that passed the decree. But in two instances, the executing courts may deny to execute the decree and these are:
  1. decree is passed under fraud
  2. the court which passed the decree lacks inherent jurisdiction.
As the air is not clear about lack of inherent jurisdiction of court passing decree, hence through this article I have tried to throw the light on prevailing law of the land in execution of decree.

What is Inherent Jurisdiction:

Inherent jurisdiction is subject matter jurisdiction as provided under section 9 of Code of Civil Procedure 1908. It is also called "jurisdiction ratione materia". The authority of a court to hear cases of a particular type of cases relating to a specific & particular subject matter is called its inherent jurisdiction.

For Example: Family courts can decide matters relating to matrimonial disputes only and Insolvency court can decide matters relating to insolvency only. If any of these two courts decide any other matter than matrimonial and insolvency, then it is called that the courts did not have inherent jurisdiction in those other matters. These courts cannot decide other matters likes specific performance or Partition etc.

Most important part is that the decree passed by the court without subjective of inherent Jurisdiction is void and null.

In Chiranjilal Srilal Goenka vs Jasjit Singh (1993SSC), hon’ble Supreme Court of India observed that decree by a court without jurisdiction on the subject matter goes to the root of the matter. Such decree is a nullity and non-est.

Similarly, in Hiralal vs Kalinath (AIR1962), it was pointed out that defect of jurisdiction with respect to Pecuniary [Section 6 of CPC] or territorial jurisdiction (Section 15-20 of CPC) does not go to the root of the matter. Decree passed in such defects is not nullity.

To What Extent the Executing Court may Act:

The expression ‘execution' means enforcement or implementation of the order or judgment passed by the Court. A decree means an operation or conclusiveness of a judgment and the execution of a decree is complete when the decree-holder gets satisfied as to its enforcement against the judgment-debtor.

We can say that it is the medium by which a decree-holder compels the judgment-debtor to carry out the mandate of the Decree. To take the benefit of a decree, execution proceedings (an application under Order 21 1908(CPC)) have to be initiated before the appropriate court/authority within 12 years from the date of decree.

It is settled principle of law that the executing court has jurisdiction only to execute the decree in accordance with the procedure laid down under [ORDER 21 CPC]. Therefore, executing court cannot go behind the decree, it only can deal with the issues as provided under section 47 of CPC 1908. Section 47 of Act is reproduced here for easy reference:

Section 47 of CPC 1908:

  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. 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.

Hence, it is clear from the plain reading of section 47 that only three kinds of matter can be decided by executing courts and these three subjects are:
  1. Execution,
  2. Discharge,
  3. Satisfaction
The executing courts may see all the issues pertaining to the discharge, execution and satisfaction of decree.

Parties for the purpose of section 47

The word Parties under sec. 47 has to be read widely & liberally. It includes not only decree holder & judgement debtor rather it includes also the other persons whose interest may be involved in execution of decree.

Other than the parties to suit, it includes the following person as parties:
  1. It includes a plaintiff & defendant of the original suit whose suit was dismissed/Against whose suit was dismissed.

    To understand it, take an illustration. Suppose A & B sued C, A's got the decree but B's claim got dismissed, A applied for execution against C. Now A& C are parties but if the interest of B is affected by execution, then B can also raise objection as he was the party to suit even through his claim was dismissed.
  2. The parties are given very broad interpretation in explanation 2 of this section. Even a purchaser of property in execution of sale will be considered to be a party.
For example, A purchaser X has purchased the property Y in execution sale & judgement debtor is not ready to part with the possession, in this case, purchaser may have serious grievances. In order to obtain the possession, purchaser can directly raise the objection in same proceeding as he is "deemed to be party". Then, court will make purchaser the party and no separate suit is required.

Now it is clear, under section 47 only those questions which arise in an execution proceeding between parties or their representatives are to be decided. Where a stranger to the suit cannot claim under this section, that claim cannot in law be regarded as being a question relating to the execution, discharge or satisfaction the decree.

Types of questions which can be decide by executing court under Sec 47:

  1. Decree is executable or not
  2. Whether property is liable to be sold in execution?
  3. Whether execution proceeding can be postponed?
  4. Whether an application made regarding set aside the sale under execution is maintainable or not?
  5. Setting aside of sale under Order 21 rule 89 and 90 of CPC 1908.

What Executing Court cannot decide:

  1. The executing court does not have power to set aside the decree which is void and null due lack of inherent jurisdiction of court or any other reasons of like nature. Only a competent court can set aside such decree through a separate suit as such decree does not act as res judicata for subsequent suits on same cause of action.
     
  2. Any decree that is passed on basis of fraud or collusion cannot be tinkered with by executing court. Such decrees only can be set aside by a subsequent suit in court having jurisdiction.

In S.Bhaskaran vs Sebastian (2019SCC, 161) , Apex Court held that the executing court cannot travel beyond the scope of decree or order. Any order passed by the executing court by travelling beyond the decree or order is without jurisdiction.

Similarly, in the case of Kiran Singh vs Chaman Paswan, (1954) Supreme Court observed that a court executing a decree cannot go behind the decree and must execute it as it stands. It has no power to entertain any objection as to the validity, legality or correctness of the decree. In case of inherent lack of jurisdiction, the decree of the court is a nullity and its invalidity can be enforced, whether in execution or collateral proceedings.

So, it is clear by the above precedents, the Execution Court, thus can hear and decide questions pertaining to execution of decree and cannot go behind the decree to decide upon merits of case. It cannot decide any error/defect in trial or any relief upon the decree court has refused the grant the decree.

The objective of section 47 is to prohibit the multiplication of proceedings when the issues can be decided by the executing court itself. The main principle of this section is that all questions relating to the execution, discharge or satisfaction of the decree shall be determined in the execution proceedings and not by a separate suit. Section 47 provides cheap and expeditious procedure for trial of such questions.

It is pertinent to know that against any order under section 47, appeal will not lie but revision is allowed before High court under section 115 of CPC 1908.

Impact of Decree Passed by Court having no Jurisdiction:

There are three kind of jurisdiction namely pecuniary, territorial and subject matter (Inherent) jurisdiction. The pecuniary jurisdiction is dealt in section 6 of CPC and territorial jurisdiction is described under section 15-20 of the Act. Both these jurisdictions are not inherent in nature and does not effect the decree passed in violation of these jurisdiction unless there is a gross injustice to the parties. Such decrees may be called irregular but not invalid or void. The objection regarding the pecuniary and territorial jurisdiction should be raise at the outset as provided in section 21 of CPC.

Void decree passed by a court having lack of subject matter or inherent jurisdiction (section 9) is void in nature and objection related to the inherent Jurisdiction can be raised at any stage of suit including at time of execution proceeding.

The reason is that, lack of inherent jurisdiction goes in the root of the matter, such decree is void the decree. Moreover, the question of validity of decree is not one which can be agitated in execution because it is not related to discharge/satisfaction of decree, it is only where a decree is passed by a court which lacks the inherent jurisdiction to pass the decree so that objection to the Validity of decree may be raised in execution proceeding if such an objection appears on the face of record.

Remedy against Void Decrees:

Void decree can be set aside without any examination of failure of justice by the trial court/appellate court if once the lack of jurisdiction is proved, However, executing court has no power to set-aside the decree, rather the court can at the most refuse to execute it. The objection regarding void decree can be raised in both collateral & incidental Proceedings.
  1. Collateral Proceeding

    Void decree will be set aside, parties can bring the fresh suit and res judicata will not apply.
     
  2. Incidental proceeding [after trial]

    The Appellate & revisional court can set-aside the decree passed by any court without subject matter jurisdiction. But the executing court cannot set-aside such decree but the court can refuse to execute the decree.
Written By: Lakshita Rajpurohita, Advocate at Jodhpur High Court.

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