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.
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:
- decree is passed under fraud
- 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:
- 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.
[* * * *]
- 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
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:
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:
- 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.
- 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
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:
- Decree is executable or not
- Whether property is liable to be sold in execution?
- Whether execution proceeding can be postponed?
- Whether an application made regarding set aside the sale under execution
is maintainable or not?
- Setting aside of sale under Order 21 rule 89 and 90 of CPC 1908.
What Executing Court cannot decide:
- 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.
- 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
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
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.
Written By: Lakshita Rajpurohita
Collateral Proceeding Void decree will be set aside, parties can bring the fresh suit and res
judicata will not apply.
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.
, Advocate at Jodhpur High Court.