Questions to be Determined by the Executing Court
Chapter Thirty-One
Syllabus topic 3.1, "Meaning of execution"
Pages 173 to 177 of 365
In one line
Every dispute about executing, discharging or satisfying a decree is decided by the executing court itself, and not by a separate suit.
Why the Code forbids a separate suit
Without section 47 a judgment-debtor could answer every step of execution with a fresh suit. Attachment could be met with a suit for a declaration that the decree was satisfied; a sale could be met with a suit about who was entitled to the property. Each new suit would take years, and a decree would become a licence to litigate rather than a way of ending litigation.
So the Code concentrates all of it in one place: the court that is executing. That court is already seised of the matter, it has the record, and it can decide the point in the execution proceeding itself.
The provision is therefore a bar on one thing and a grant of jurisdiction over the same thing. It is worth saying both halves in an answer.
The provision
Section 47(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.
Section 47(3): where a question arises as to whether any person is or is not the representative of a party, that question shall, for the purposes of the section, be determined by the Court.
Explanation I: for the purposes of the 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) 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 was passed; and (b) all questions relating to the delivery of possession of that property to that purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree.
Note: Explanation II has been omitted in Uttar Pradesh by a State amendment. It is in force here, and it is the one that brings the auction purchaser inside the section.
The three conditions
For section 47 to apply, all three must be satisfied, and an answer that gives fewer than three is incomplete.
One, the question must arise between the PARTIES to the suit, or their representatives. A stranger to the suit is outside the section entirely. If a third party claims the attached property belongs to him, that is not a section 47 question; it is a claim under Order XXI Rule 58.
Questions to be Determined by the Executing Court
Two, the question must relate to the EXECUTION, DISCHARGE OR SATISFACTION of the decree. Those three words cover a wide field: whether the decree has been paid, whether it is capable of execution, whether it is barred by limitation, whether the property attached is covered by it, whether possession has been delivered.
Three, the question must arise in relation to a DECREE, meaning something the Code treats as executable, which by section 36 includes an executable order.
Who counts as a party
The section is generous, and the two Explanations are the reason.
Explanation I answers a puzzle. If a suit was dismissed, is the losing plaintiff still a "party to the suit" for a question about executing the costs decree against him? The Explanation says yes, both a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties.
Explanation II answers a much more practical one. A stranger buys the property at the court auction. He is not a party to the original suit at all. When he cannot get possession, must he file a fresh suit? The Explanation deems him a party, and deems all questions about delivery of possession to him to be questions relating to execution. So he goes back to the executing court, which is quick, instead of starting a suit, which is not.
Section 47(3) completes the picture: where it is disputed whether a person is a representative of a party at all, that dispute is itself decided by the executing court.
What the executing court cannot do
This is the limit that every answer should state, and it follows from the words of the section rather than from any separate rule.
The executing court decides questions relating to the execution, discharge or satisfaction of the decree. It does not sit in appeal over the decree. It cannot hold that the decree is wrong on the merits, or that the trial court misread the evidence, or that a different relief should have been granted. The remedies for a wrong decree are appeal, review and revision, dealt with in [Reference, Review and Revision] and the appeal chapters.
The one recognised qualification is the nullity principle: a decree passed by a court with no inherent jurisdiction over the subject matter is a nullity, and its invalidity can be set up whenever it is relied on, including in execution. That principle is stated in Kiran Singh, which is discussed with its limits in [Objections to Jurisdiction]. So an executing court may refuse to execute a decree that is a nullity, but it may not refuse to execute a decree that is merely wrong.
Questions to be Determined by the Executing Court
Res judicata in execution
Explanation VII to section 11 applies the doctrine of res judicata to execution proceedings: a question decided at one stage of executing a decree cannot be reopened at a later stage of executing that same decree. That Explanation was inserted by the 1976 amendment, and it is set out in [Res Judicata].
Read with section 47 the position is coherent. Section 47 says all execution questions belong to the executing court; Explanation VII says once that court has decided one, it stays decided.
A worked example
Wasim obtains a money decree against Xavier. In execution, Xavier's flat is attached and sold at auction to Yusuf, a stranger.
Xavier says he paid the decree amount before the attachment. That is a question of satisfaction of the decree between the parties. Section 47: it is decided by the executing court, and Xavier cannot bring a separate suit for a declaration that the decree is satisfied.
Xavier says the decree is barred by limitation. A question relating to execution, again for the executing court.
Xavier says the trial judge wrongly believed Wasim's witness. That is not a section 47 question at all. The executing court cannot go behind the decree. His remedies lay in appeal or review, in time.
Xavier says the suit was tried by a court that had no jurisdiction over the subject matter at all. Different again: an inherent want of jurisdiction makes the decree a nullity, and that may be set up even in execution.
Yusuf, the auction purchaser, cannot get possession. He is a stranger to the suit, but Explanation II deems him a party and deems questions about delivery of possession to him to be execution questions. He applies in the executing court; he does not file a suit.
Zoya, Xavier's sister, says the flat was hers all along. She is a stranger, and her objection does not relate to a question between the parties. Section 47 does not apply. Her route is a claim or objection to the attachment under Order XXI Rule 58.
A question arises whether Xavier's son is his legal representative for the purposes of execution. Section 47(3): the executing court decides that too.
The executing court decides against Xavier on the payment question, and later in the same execution he raises it again. Explanation VII to section 11 bars him: res judicata applies between stages of the same execution.
What it does not mean
Section 47 does not let the executing court re-try the suit. It cannot go behind the decree.
It does not cover strangers. A third party claiming the attached property proceeds under Order XXI Rule 58, not under section 47.
Questions to be Determined by the Executing Court
"Discharge or satisfaction" is not limited to payment. It covers any question about whether the decree has been carried out or is capable of being carried out.
An auction purchaser is not shut out because he was not a party. Explanation II deems him one for questions about delivery of possession.
A dismissed plaintiff is still a party. Explanation I says so.
Quick revision
Section 47(1): all questions between the parties or their representatives relating to the execution, discharge or satisfaction of the decree are determined by the executing court and not by a separate suit.
Three conditions: between the parties or their representatives; relating to execution, discharge or satisfaction; in relation to a decree, which by section 36 includes an executable order.
Section 47(3): whether a person is a representative of a party is itself decided by that court.
Explanation I: a plaintiff whose suit was dismissed, and a defendant against whom a suit was dismissed, are parties.
Explanation II: an auction purchaser is deemed a party, and questions about delivery of possession to him are execution questions. Omitted in Uttar Pradesh.
Limits: the executing court cannot go behind the decree, except that a decree passed without inherent jurisdiction is a nullity and may be resisted even in execution. A stranger's claim to attached property goes under Order XXI Rule 58.
Explanation VII to section 11 applies res judicata to execution proceedings.
Test yourself
1. What does section 47 provide? That 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. State the conditions for the application of section 47. The question must arise between the parties to the suit or their representatives; it must relate to the execution, discharge or satisfaction of the decree; and it must arise in relation to a decree, which by section 36 includes an order capable of execution.
3. Can the executing court hold that the decree is wrong? No. It cannot go behind the decree, and a party's remedy against a wrong decree is appeal, review or revision. The one qualification is that a decree passed by a court with no inherent jurisdiction over the subject matter is a nullity and may be resisted even in execution.
4. A stranger claims the attached property is his. Is that a section 47 question? No. Section 47 covers questions between the parties to the suit or their representatives. A stranger's claim to attached property is made by way of a claim or objection under Order XXI Rule 58.
Questions to be Determined by the Executing Court
5. An auction purchaser cannot obtain possession. Must he file a suit? No. Explanation II to section 47 deems a purchaser of property at a sale in execution to be a party to the suit, and deems all questions relating to the delivery of possession of that property to him or his representative to be questions relating to the execution, discharge or satisfaction of the decree. He therefore applies to the executing court.
6. Is a plaintiff whose suit has been dismissed a party for the purposes of section 47? Yes. Explanation I provides that a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit for the purposes of the section.
7. Can a question decided in execution be reopened later in the same execution? No. Explanation VII to section 11 applies the principle of res judicata to proceedings for the execution of a decree, so a question heard and finally decided at one stage cannot be reagitated at a later stage of that execution.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.