Execution of a Decree
As per Section 38, a decree may be executed either by the court which passed it or the court to which it is sent for execution. While executing a decree, several questions and objections may arise as to the manner of execution. It would be impractical to institute new suits to resolves such matters. Thus, Section 47 lays down the general principal that any questions that arise in relation to the execution of the decree should be resolved in execution proceeding itself and not by a separate suit. Section 47 says thus –
Questions to be determined by the Court executing decree – (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.
(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.
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.
The objective of this section is to provide cheap and fast remedy for the resolution of any questions arising at the time of execution. Institution of new suits would only increase the number of suits and would also be a burden on the parties.
The scope of this section is very wide. It confers exclusive jurisdiction to the court executing the decree in all the matters regarding the execution. It does not matter whether the matter has arisen before or after the execution of the decree. Thus, this section should be construed liberally.
1. The question must be one arising between the parties or their representatives to the suit in which the decree is passed.
2. The question must relate to the execution, discharge, or satisfaction of the decree.
As held in the case of Arokiaswamy vs Margaret AIR 1982, both the conditions must be satisfied cumulatively.
What is meant by execution, discharge and satisfaction of a decree –
This expression has not been defined in the code. However, the following questions are held to be relating to the execution, discharge and satisfaction of the decree –
whether a decree is executable, whether a property is liable to be solde in execution of a decree, whether the decree is fully satisfied, whether the execution of the decree was postponed.
The following questions have been held as not related – whether the decree is fraudulent or collusive, whether the decree has become inexecutable because of a compromise between the parties, a question about the territorial or pecuniary jurisdiction of the court passing the decree.
Appeal and Revision
Earlier, determination made under Section 47 was deemed to be a decree under Section 2(2). However, after the amendment in 1976, this is not so. Any determination made under an application under Section 47 is not considered a decree and is therefore not appealable under Section 96 or Section 100. Since it is no more a decree, a revision application under Section 115 is therefore maintainable provided the conditions stipulated in Section 115 are satisfied.