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Code Of Civil Procedure 1908, For Deciding Relating To Execution, Discharge And Satisfaction Of The Decree And Attachment Of The Property During The Execution Of The Decree

The execution of decree is very important but a very difficult task, it is not so easy as it is considered. Many times, many questions arise before the court executing the decree e.g. execution, satisfaction, exemption, attachment etc. it is an important question as to whom and by whom these questions will be settled.

Provision has been made under Section 47 of Code of Civil Procedure 1908. It can be put under three heads:
  1. Those questions which can be thought and executed by the court;

    Those questions which can be decided by the Execution Court:
    Under section 47, the following questions arising at the time of execution can be decided by the execution court:
    1. Those questions which arise between the parties and their representatives for whom the decree has been passed and which are related with the execution, discharge and satisfaction;
      There is no need of institution of separate suit for deciding these questions.
    2. The question whether any person is the representative of any party or not. For the purpose of section 47, the question can be decided by the execution court.
    Some explanations have been given under section 47, according to these explanations:
    The plaintiff whose suit has been quashed and the defendant against whom the suit has been quashed are parties to the suit.
    For execution of the decree, the purchaser of the property sold will be considered as party for this section, of the suit in which decree has been passed.
    All questions relating to the delivery of possession of the property to the purchaser or his representative for the meaning of this section, will be considered as related to execution, discharge and satisfaction of the decree.

    Thus under section 47, the execution court can decide two types of questions:
    1. Such questions which are related with the execution, discharge and satisfaction of the decree, and
    2. Such questions which are related with whether a person is a representative of the party or not.
    The main objective of this provision is to check the multiplicity of the suits. Had such powers not been conferred upon the court, the number of suits would have increased because separate suits would have filed for deciding these questions.
     
  2. Those questions which cannot be thought and decided by the court:

    Under section 47 of the code, the powers of execution court for deciding questions relating to execution are not absolute but they are limited. The execution court can decide only those questions which are related with the implementation or execution of specified questions related with the decree.
    The execution court cannot go beyond the decree, i.e. it cannot consider the merits and demerits of decree. In other words, it can be said that the execution court cannot consider this question whether the decree has been passed on its merits and demerits.

    The following questions cannot be decided by the execution courts:
    1. Whether the decree has been obtained by fraud?
    2. Whether the decree has been obtained against the wrong person/
    In this regard, Kalipad Sarkar Vs Hari Mohan Dalal (44 Calcutta 627) is a quotable case. In this, question was raised about the validity of the decree. The question was, on the plaintiff becoming mad, if his representation is not made by the competent guardian, then the decree for expenses enforceable against him cannot be passed. It was decided that this question was related with the validity and sanctity of the decree passed, therefore, the execution court cannot decided this question.

    In D.P.Mishra Vs K.N. Sharma (A.I.R. 1960, SC 1475), the Supreme Court has decided that the powers of execution courts are limited. It has to execute the decree according to the instructions given in it and therefore, that court cannot decide about the validity and sanctity of the decree.

    Similarly, in Krishna Raj trading Corporation Vs Ramsharan Lal (A.I.R. 1952 Allahabad 27), it has been said by the Allahabad High Court that the execution court cannot decide the disputed rights of the parties. This jurisdiction lies with the trial court.
     
  3. Those circumstances under which the court can re-examine the decree

    As we have seen above, the execution court cannot decide about the validity and sanctity of the decree. But this rule is not absolute. There are some exception to it. There are some circumstances under which the execution court can be re-examine the decree for the purpose of deciding its validity and sanctity.
    These circumstances are as follows:
    1. When the decree is null and void
    2. When the subject matter of the decree gives more than one meanings
    3. When the decree was passed by such court which did not have jurisdiction to pass it etc.

But about the last point, the Kerala High Court has said in the case K.P. Antony Vs Tea Plantation Pvt. Ltd. (A.I.R. 1996, Kerala 37), that any decree cannot be challenged only on the ground that it has been passed in the absence of jurisdiction.

Further, in Lakshmidhar sahu Vs M/s Padmini Tripathi (A.I.R. 1991, Orissa 9), the Orissa high court has said that if the decree is not clear then the execution court can interpret it.

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