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Section 47 – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

47. 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.

1[* * * *]

 

(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.

 

2[Explanation I.-For the purposes of this 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) For the purposes of this section, 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 is passed; and

 

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]

 

COMMENTS

(i) Executing court has to first decide whether preliminary decree in question is severable from final degree and can be executed independently. If not, then only after passing of the final decree it can be executed; Md. Serajuddin v. Md. Abdul Khalique, AIR 2005 Gauhati 40.

(ii) Once decree reached finality, it is not open to judgement-debtor to plead new facts in execution proceedings; Pothuri Thulasidas v. Potru Nageswara, AIR 2005 AP 171.

 

(iii) Suit was not ‘in reality’ one in the nature of execution of the earlier order of eviction in favour of plaintiff and is not barred. Suit based upon fresh cause of action. The High Court was wrong in treating present suit as one ‘virtually’ for execution of the order of eviction passed in the earlier rent control case. Hence the ban under section 47 cannot apply; Ajit Chopra v. Sadhu Ram, AIR 2000 SC 212.

 

(iv) An executing court granted decree for interest which was not part of the decree for execution on ground of delay and unreasonable stand taken in execution. Since the executing court cannot travel beyond decree under execution, the said decree was held to be without jurisdiction; Kameshwar Das Gupta v. State of Uttar Pradesh, AIR 1997 SC 410.

 

(v) New plea cannot be allowed to be raised for the first time in execution proceedings; Jalada Daland Uchha Bidyapith v. State of Orissa, AIR 1993 Ori 257: 1993 (1) Ori LR 77.

 

(vi) Execution of the decree ought not to be refused, unless the decree itself is a nullity; Jalada Daland Uchha Bidyapith v. State of Orissa, AIR 1993 Ori 257: 1993 (1) Ori LR 77.

 

(vii) Injunction decree can be enforced by the legal heir of the decree holder against the J.O. after the death of the decree holder; D’souza, J. v. A. Joseph, AIR 1993 Kant 68: ILR (Kant) (1992) 2972.

 

(viii) Death of the decree holder during pendency of the execution proceedings. His legal representative can continue the proceedings after obtaining the succession certificate; Kariyamma v. Assistant Commissioner and Land Acquisition Officer, AIR 1993 Karn 321: 1993 (1) Civ LJ 297: 1992 (3) Cur CC 664.

 

(ix) In absence of any challenge to decree no objection can be raised in execution; State of Punjab v. Mohinder Singh Randhawa, AIR 1992 SC 473.

 

(x) Auct
ion sale held in execution of final decree can be set aside under section 47 on displacement by Appellate Court of preliminary decree on which final decree was based; Kumar Sudhendu Narain Deb v. Renuka Biswas, AIR 1992 SC 385.

 

1. Sub-section (2) omitted by Act No. 104 of 1976, sec. 20 (w.e.f. 1-2-1977).

2. Subs, by Act No. 104 of 1976, sec. 20 for Explanation (w.e.f. 1-2-1977). Earlier Explanation was ins. by Act 66 of 1956, sec. 5 (w.e.f. 1-1-1957).

 

 

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Civil Procedure Code 1908

 

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