Code Of Civil Procedure

Section 47 refers to one of the most important provisions in Part II of the Code of Civil Procedure which deals with the Execution of decrees. It makes it incumbent on the executing Court to decide on all the intricacies related to the decree so that it is fully satisfied. The provision aims to provide an inexpensive and expeditious remedy for resolution of disputes between the parties to the suit in execution proceedings, thus preventing needless and unnecessary litigation [2] .

It is composed of two essential elements which are namely first that the questions arise between the parties to the suit in which the decree was passed, and second that those questions must relate to the execution, discharge or satisfaction of the decree [3] .

“It has been consistently held in a series of judicial pronouncements that there should be a wide and liberal construction of Section 47 so as not to drive the parties to separate suit and prolong litigation. Section 47 of the Code is couched in a very wide language. The very object is to avert another suit concerning the decree under execution" [4] .

“The requirement of this provision is that the executing Court alone must determine all questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and authorizes it even to treat the proceeding as a suit" [5] .

The words “all questions arising" mean all questions which could properly arise or which could have properly been raised in the execution proceedings between the parties to the suit or their representatives [6] .

This project tends to analyze Section 47 by offering an elaborate discussion on the elements constituting it with the help of case law. This is done by tracing the scope and object of the provision. The researcher has offered a detailed discussion of the meaning of the expression parties to the suit followed by a detailed explanation of what constitutes questions relating to execution, discharge or satisfaction of the decree.

PART-I

WHAT IS MEANT BY THE EXPRESSION “PARTIES TO THE SUIT"?

The expression “parties" in Section 47 refers to parties ranged on opposite sides [7] . This does not imply that these are to be the de facto parties on record or parties on opposite sides as plaintiff and defendant, but means parties opposing each other [8] . However, the expression cannot be restricted to parties those ranged against each other on opposite sides [9] . When the dispute, though between the parties ranged on the same side, is such as to effect a party ranged on the opposite side, it has been held to fall within Section 47 [10] . Holding to the contrary would frustrate the object of the section [11] . Whether a person is a party or is not a party to the suit should be decided not on the basis of whether he is a party to the decree but whether he is a party to the suit in which the decree is passed [12] .

WHAT IS THE SCOPE OF THE EXPRESSION DISPUTE TO ARISE BETWEEN PARTIES TO THE SUIT?

There has to be a dispute between the parties or their representatives for the application of Section 47 [13] . Questions arising between the parties who are not opposed to each other or between a party and a stranger do not fall within this provision [14] .

DOES THE EVENT OF PURCHASE DURING THE EXECUTION RENDER THE PURCHASER A PARTY TO THE SUIT TO WHICH HE WAS NOT A PARTY ORIGINALLY?

A decree holder does not cease to be a party to the suit by becoming a purchaser [15] . However, the purchaser of a sale in execution of a decree [16] , purchaser pendente lite of property in suit [17] , purchaser of the rights of the judgment debtor which were sold in execution of money decree obtained by mortgagee [18] would not constitute parties within the meaning of Section 47.

WHAT IS THE IMPORT OF THE TERM “ARISING"?

The term “arising" should be read as directly arising. The provision applies to the exclusion of remote inquiries from the execution department. Any question of issue that arises after the satisfaction of the original decree, would be barred by this section. On the other hand, if the question has arisen as to the execution, discharge or satisfaction of the decree between the parties to the suit in which the decree was passed, the interest of the purchaser who had not been a party to the original suit, in the result does not constitute a bar to the application of Section 47 [19] . However, a mere conflict of interest between the parties in execution would not be covered by Section 47 [20] .

PART II

WHAT IS MEANT BY THE EXPRESSION “RELATING TO EXECUTION, DISCHARGE OR SATISFACTION OF THE DECREE"?

The expression “relating to the execution of the decree", implies the question of executability of the decree [21] . The effect of this provision is that the defendant is barred from bringing a separate suit for determination of any questions related to execution, discharge or satisfaction.

“Courts have pointed out the intention of the Legislature by enacting Section 47 and Order 21 of the Code. It has been clearly asserted by the Court that any question relating to execution, discharge or satisfaction of the decree should be determined in the execution proceedings and the parties cannot bring a separate suit for the same" [22] .

WHAT ARE THE QUESTIONS RELATED TO EXECUTION, DISCHARGE OR SATISFACTION OF THE DECREE?

“The expression “relating to the execution" has not been defined in the Code probably with the intention of leaving it flexible. It is comprehensive enough to include any question the order in respect of which furthers, hinders or affects the manner of carrying out of the execution of the decree" [23] . Following are some of the questions to be determined by the court executing the decree.

EXECUTABILITY

Executability of a decree is one of the most important questions to be determined by the Court executing the decree. “The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so, under section 47 of the Civil Procedure Code, it can only be determined by the Court executing the decree" [24] .

COMPLETE SATISFACTION

Complete satisfaction of the Decree is the exclusive prerogative of the executing Court. The Court is to see that whether the judgment debtor satisfies the decree to the extent of giving effect to the relief asked for by the decree holder. “The question whether the decree was completely satisfied and therefore the Court became functus officio is a matter relating to execution, discharge of the decree. When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated when it arises between parties to the decree, only by an application under Section 47, and not in a separate suit" [25] .

ADJUSTMENT

Whether the decree has been adjusted outside the court is another important question to be determined by the executing Court. [26] “It follows that where in execution of a money decree a judgment debtor pleads payment or adjustment the question falls within Section 47 and can be dealt with in execution proceedings. However, an uncertified payment or adjustment cannot be entertained by the Court. An agreement not to execute a decree entered into subsequent to the filing of the suit but prior to the passing of decree can be pleaded in bar of execution. The executing Court may determine the legality of such agreement" [27] .

NATURE OF PARTIES

“The Court is to determine the nature of the parties before it by inquiring as to whether a person is or is not the representative of the party. The representative character of a person is determined by the following two fold test: (1) Whether any portion of the interest of the decree holder or of the judgment debtor, which was originally vested in one of the parties to the suit, has by an act of the parties or by operation of law, vested in the person who is sought to be treated as a representative; and (2) If there has been devolution of interest whether, so far as such interest is concerned, that person is bound by the decree" [28] . The term representative in section 47 includes not only legal representatives in the sense of heirs, executors or administrators but also a representative in interest that is any transferee of interest of the decree holder or the judgment debtor who is bound by the decree [29] . Over and above the expression “legal representatives" covers persons on whom interest has devolved by assignment, transfer or otherwise [30] .

RESTITUTION

“The determination of any question relating to restitution under Section 144 is expressly included in the definition of decree and hence an application for restitution can be said to be an application for execution of decree and will be covered by Section" 47 [31] .

RE-RESTORATION

An application for re-restoration is maintainable under Section 47. The Court has ruled that “an application for re-restoration of the Mortgage Decree constituted an application for execution though couched in an improper form" [32] .

IDENTITY OF PROPERTY

“When in execution a question arises as to the identity of the property of which possession has to be delivered to the decree holder, obviously such a question would relate to the execution of the decree and it would be for the executing Court to decide it as required by sub sec. (1) of Section 47 of the Code. The executing Court would do it well to hold proper enquiry and determine the question with regard to the identity of the property which has to be delivered to the applicant" [33] .

CAPABILITY OF PERFORMANCE

“Executing Court has to see that the party seeking execution not only offers to perform his part of the decree, but an objection being taken satisfies the executing Court that he is ready and willing to comply with it. The Court enunciated that “When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other, execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do so"" [34] .

ATTACHMENT AND SALE

Executing Court is to entertain all the questions regarding the attachment and sale of the property. “It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under Section 47 CPC and not in a separate suit" [35] . Wherever a dispute arises as to whether a particular property is liable to attachment or not, the executing Court will decide the question [36] .

BIDDING:

“A question as to whether or not the decree holder purchased the property of the judgment debtor without permission to bid is covered under Section 47 and is to be decided in execution proceedings. A separate suit is barred" [37] .

APPLICATION TO SET ASIDE THE TRANSACTION OF SALE

An application to set aside sale on the ground that it contravened an order of stay as between parties to the suit falls under this section and a separate suit is barred thereby. “When the judgment debtor pleads that a sale held in contravention or in ignorance of an order of stay passed by the executing Court is null and void, it is an objection under Section 47 and will be deciding by the executing Court as such" [38] .

VALIDITY OF ASSIGNMENT

“The question of the validity of assignment of the decree, arising between the assignee and the decree holder or the judgment debtor as the case may be, falls under Section 47" [39] .

CONCLUSIONS

For the reasons stated above, it is apparent that the executing Court has to decide all the disputes between the decree holder and the judgment debtor. At this juncture, one can visualize the attempt of the Legislature in extending the right to speedy trial to the claimants. Had this provision not been there the execution of a decree would have become a distant dream. The judgment debtor would have attempted to avoid the discharge of his obligations as against the decree holder by instituting frivolous suits. Viewed from an economic frame of reference, the provision substantially prevents the futility of time, resources and human efforts.

One can conclude that Section 47 stands as an affirmation of the well known legal principle, that is, “Justice delayed is Justice denied".