A brief on Section 47 of Civil Procedure Code, 1908

Khushi Lunawat

Section 47 was enacted for the purpose of checking excessive litigation and offers a cheap, fast and expeditious remedy by authorizing the court to impose a decree to decide all issues arising between the parties to the case relating to the compliance, discharge or fulfilment of the decree. Two points should be remembered. 

Questions in terms to which a separate action is prohibited must be questions relating to the compliance, discharge or fulfilment of the decree and the parties between whom the questions occur must be parties or their representatives to the action in which the decree was passed.

Therefore, when a decree-holder executes a property not included in the decree, the judgment-debtor must proceed with an application for the recovery of that property pursuant to section 47 of the Law, and no separate action for that reason will be brought.

If, however, a judgment-debtor or its legal representative objects to the compliance of a decree on the ground that the decree is not legitimate, the issue as to the validity of the decree is not one that involves the enforcement, discharge or fulfilment of the decree and, thus, cannot be dealt with in the enforcement proceedings referred to in section 47. Only in a standard suit brought for the purpose may such a query be tried.

WHAT DOES SECTION 47 SAY?

Questions to be determined by the Court executing decree.—(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.

(3) 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.

ESSENTIALS OF THE SECTION

Questions arising in relation to execution, discharge or satisfaction between the parties or their members. Section 47 shall apply only when a conflict occurs between the parties to the dispute; it shall not apply where the dispute is between the parties to the dispute and a stranger as well.

It is restricted to cases where, as distinct from the legitimacy of the decree, the fulfilment of the decree is in doubt. The two conditions for the applicability of the section, as mentioned above, are: (1) that the issue should concern the execution, discharge or fulfilment of the decree.

The execution court has an obligation to settle the conflict whereby someone appears to be representative of the interest of the decree-holder and contests it with the decree-holder. Under section 47, C.P.C., the amended meaning of the word ‘decree’ does not require the determination of any issue.

CASE LAWS

1) Kalipada Sarkar v. Hari Mohan Dalai:

In this case, the question to be ascertained was whether the legitimacy of the decree could be called into question in the execution proceedings on the ground that, because the lunatic plaintiff was not adequately represented in the proceedings by the competent next mate, no operational decree for costs could have been given against him.

The Court noted that it was not disputed that the court executing a decree must take the decree as it stands and does not have the right to reject the decree or to object to the validity or accuracy of the decree. The theory was recognised in several cases by the Judicial Committee.

2) Sunder Das v. Ram Prakash

Where the decree requested to be executed is a nullity in the court passing it for lack of inherent jurisdiction, its invalidity may be identified in an execution proceeding. If there is a lack of natural jurisdiction, it goes to the root of the court’s jurisdiction to prosecute the case and a nullity order is invalid and may be found void by any court in which it is filed.

3) Kiran Singh v. Chaman Paswan

The Supreme Court observed as follows:

“It is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree and such defect cannot be cured even by consent of parties.”

It must be shown that there is or was a decree capable of execution in order to sustain a legitimate objection under section 47, C.P.C. There can be no doubt of its execution if a decree is not worthy of execution.

Accordingly, section 47 of the Code of Civil Procedure cannot, even if by virtue of the rights declared by the decree, prohibit litigation for the enforcement of those claims which emerged after the passing of the decree.  Objections are applications under section 47, C.P.C. and are regulated by Article 173 of the Limitation Act.

4) It is important to bear in mind that, following the judgment of the Privy Council in Ganpathy v. Krishnamchaiar, there has been an amendment to section 47 as a consequence to which, for the purposes of section 47, the purchaser of a sale pursuant to a decree, whether or not he is the decree-holder, is unquestionably a party to the action. In this case, all issues occurring between the auction-purchaser and the judgment-debtor must be decided by the executing court rather than by a separate action.

CONCLUSION

It is evident that all the conflicts between the holder of the decree and the judgment debtor must be resolved by the Executing Judge. The effort of the Legislature to expand the right to prompt trial to the claimants can be visualized at this juncture. Had this clause not been there, it would have been a distant dream to execute a decree.

Through instituting frivolous suits, the judgment debtor may have sought to prohibit the discharge of his responsibilities against the decree holder. Considered from an economic system of reference, the law greatly hinders the futility of time, money and human efforts. “It can be concluded that Section 47 is an affirmation of the well-known legal principle, namely, “Justice delayed is denied Justice.

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