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:
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:
Some explanations have been given under section 47, according to these
- 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.
- 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
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
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:
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
- Such questions which are related with the execution, discharge and
satisfaction of the decree, and
- Such questions which are related with whether a person is a
representative of the party or not.
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:
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.
- Whether the decree has been obtained by fraud?
- Whether the decree has been obtained against the wrong person/
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.
Those circumstances under which the court can re-examine the decreeAs 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:
- When the decree is null and void
- When the subject matter of the decree gives more than one meanings
- 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
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.