Legal Provisions of Section 47 of Code of Civil Procedure 1908, (C.P.C.), India

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 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.

Enforcement of liability of Surety—surety a Party:

Section 145 of the Code which deals with enforcement of liability of surety, makes the surety a party to the suit for the purposes of section 47.

Object—Provide cheap, speedy and expeditious remedy:

Section 47 has been enacted for the beneficial purpose of checking needless litigation and provides a cheap, speedy and expeditious remedy by empowering the court executing a decree to determine all questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. Two things are to be noted.

The questions in respect of which a separate suit is barred must be questions relating to the execution, discharge or satisfaction of the decree and the parties between whom the questions arise must be parties to the suit in which the decree was passed, or their representatives.

Thus when a decree-holder takes in execution a property not included in the decree, the judgment-debtor has to proceed by an application under section 47 of the Code for recovery of such property and a separate suit for that purpose will not lie.

If, however, a judgment-debtor or his legal representative objects to the execution of a decree on the ground that the decree is not valid, the question as to the validity of the decree is not one relating to the execution, discharge or satisfaction of the decree and cannot, therefore, be tried in execution proceedings under section 47. Such a question can only be tried in a regular suit brought for the purpose.

Essential Conditions of Applicability of S. 47:

Questions arising between parties or their representatives to suit and relating to execution, discharge or satisfaction.—Section 47 will apply only where a dispute arises between the parties to the suit; it does not apply where the contest is between the parties to the suit and also a stranger.

It is limited to cases where the satisfaction of the decree, as distinguished from the validity of the decree, is in question. As stated above, the two conditions for applicability of the section are: (1) that the question should relate to the execution, discharge or satisfaction of the decree and (2) that the question shall arise between the parties to the suit in which the decree was passed or their representatives. The section is mandatory and bars both a suit and a defence.

The execution court has got duty to resolve the dispute whereby somebody claims to be representative of decree-holder’s interest and decree-holder disputes it.

The revised definition of the term ‘decree’ does not include the determination of any question within section 47, C.P.C.

Exceptions—Nullity or unexecutable decree:

The executing court can go into all the questions between the parties relating to the execution, discharge or satisfaction of the decree and as such the court has no power to amend, modify or substitute a decree or in other words cannot go behind the decree. It is also settled that what has been decided and also questions which ought to have been raised and have been not been raised would also be questions which cannot be gone into by the executing court.

Thus, even a pre-decree agreement which makes part of the decree unexecutable cannot be gone into by the executing court as that question ought to have been raised in the proceedings and having not been raised cannot be permitted. But there are few clearly carved out exceptions, one where in case the court or authority had no jurisdiction to decide the same or where a decree is nullity or is unexecutable on account of happening of an event and such questions even if decided prior to the decree cannot exclude the executing court to go into the question as it goes to the very root of the matter.

In a case where statute conferred jurisdiction on an authority to decide the matter and if it is decided by an authority different from that and even if that authority had held that it has jurisdiction to decide it cannot be said to be final as permitting this could amount to legislation of conferred jurisdiction in an authority, which was never vested in him.

It is for all these reasons this question even if decided in a suit or proceeding is always permitted to be raised in a subsequent suit or in a collateral proceeding or in execution proceedings. The same principle is applicable also in cases where a decree is a nullity or is unexecutable and even if such a question is raised and decided or is deemed to have been decided on account of the judgment being silent, it cannot exclude the executing court to go into the questions about the unexecutability of the decree or it having become nullity. This question would be covered within the expression “execution, discharge or satisfaction of decree” used in section 47.

In regard to a question or a fact which is prior to the decree, if it in any way modifies, amends or substitutes a decree, the executing court cannot go into that question. However, if the execution of the decree is not possible and the decree is unexecutable then such a decree would be nullity and such a question could always be raised and the executing court has the jurisdiction to decide the same.

Execution –Appeals:

An order passed on an objection filed under section 47 after the amendment of 1976 does not amount to a decree and is not appealable. From the manner in which the amendment was made in section 2(2) of the Code of Civil Procedure, the irresistible conclusion is that the intention has been manifested by express words and is also implied. The report of the Joint Committee is an aid to the construction and leaves no room for doubt that the intendment behind the amendment was to deprive a party of his right to file an appeal which accrued against an order passed under section 47, C.P.C.

An execution application is not continuation of suit. It is separate from and independent of a suit. In a matter of execution the right of appeal is governed in accordance with law as it is on the date of institution or filing of the execution application.

No appeal is maintainable against the order of the executing court because by the amending Act the vested right of appeal has been taken away and the amending Act expressly and by necessary intendment only preserves the right of appeal in those cases where the appeal was pending on the date when the amending Act came into force and the right to file an appeal in other cases has been taken away.

Execution, discharge or satisfaction of decree:

If the decree grants certain rights to both the parties there can be no doubt that those rights have to be enforced in the execution proceedings and not by a separate suit as the matter relating to the execution of such rights are matters relating to the execution of the decree. Merely because the decree-holder’s right given in the decree is satisfied, it cannot be said that the judgment-debtor would not be able to apply in the execution proceedings for the enforcement of the right given to him under that decree.

Execution of eviction decree on grounds of default in payment of rent:

Where plea was raised by tenant that before passing decree he was not afforded opportunity of depositing arrears of rent. Such plea was not tenable because it was for the tenant to make application to Court seeking opportunity of making deposit. Such decree was not inexecutable as being “without jurisdiction” or “a nullity”, rather could be termed as “illegal decree” due to procedural irregularity. As this plea had not been taken before passing decree, hence, it could not be allowed to be raised during execution proceedings.

Execution of decree—Order rejecting objections of petitioners for non-joinder of necessary parties proper:

Where objection was taken that decree was nullity for non-joinder of necessary parties. Suit was for recovery of loan against petitioner. Petitioner, his deceased father, and his stepmother had jointly mortgaged their landed properties as security for repayment of loan. None of them had contested suit.

Preliminary decree followed by final decree was passed by Court. Petitioner, his stepmother or any other person claiming to be legal representative of deceased had never challenged said decrees. Held, that order holding that share of deceased in said mortgaged property had been sufficiently represented by petitioner had his stepmother and suit had neither abated nor decree was nullity was proper. As such, order rejecting objections of petitioners was proper.

Decree for Possession:

A decree for possession of the disputed land was passed but the judgment-debtor was allowed to remove within one month from the date of the decree the materials of the construction which had been built by him in the disputed land. It was held that the right of the judgment-debtor to remove the materials from the disputed land was a matter relating to the execution, discharge or satisfaction of the decree.

Where the decree-holder has obtained possession in execution of the decree in excess of that to which he was entitled under the decree the remedy of the judgment-debtor, who is the owner of his excess property, is to apply in execution proceedings and not to file a separate suit for recovery of possession of that property.

Relief of Damages:

The relief of damages is consequential to the relief for the removal of the materials and flows from it. The plaintiff could have been granted damages in execution proceedings if it was found that he had suffered on account of any wrongful act on the part of the decree-holder or his representatives-in-interest.

Where the decree itself directs the sale of the property it is not open to any judgment-debtor to raise an objection that the property is not liable to sale and thus ask for a decision which would have really the effect of nullifying the decree itself. Such an objection does not relate to the execution, satisfaction and discharge of the decree and should not be entertained and decided by the executing court under section 47, C.P.C.

The position would be different if the property which was sought to be sold was not covered by the decree itself and was sought to be proceeded against by the court in exercise of its powers as an execution court on the move of the decree-holder.

Under section 47 of the Code of Civil Procedure the executing court is conferred with powers to determine objections with regard to three things: (i) execution, (ii) satisfaction and (iii) discharge. So far as ‘satisfaction’ is concerned, a specific procedure has been provided under Order XXI, Rule 2 (Payment out of court to the decree-holder), and if that is not followed sub-rule (3) of Rule 2 provides that the question cannot be gone into by the executing court. But there could be no difficulty when the objection pertains to the execution of the decree.

The executing court has to see that the defendant gives to the plaintiff the very thing that the court directs and not something else. If there is dispute about its identity or substance, the executing court can determine the same.

Powers of the executing court:

The executing court cannot question the validity of a decree or entertain an objection as to the legality or otherwise of the decree. It has to take the decree as it stands and execute it according to its terms. The executing court must abide by the directions contained in the decree.

It is beyond its province to question its legality or correctness. It has to “punctually obey, observe and carry out the decree into execution”, except for patent want of jurisdiction of the court, which is very different from erroneous exercise of jurisdiction. Otherwise it will infringe the conclusiveness of adjudications recgonised in section 2(2) of the Code and an inferior Court will be enabled to sit in judgment over the decision of a superior tribunal.

The executing court cannot, therefore, enter into criticism of the decree or give relief against its rigours. It cannot allow objections that the decree was obtained by fraud or passed against a wrong person or against a minor, who was not properly represented. Such pleas can be raised not in the executing court but by means of a separate suit or by means of an appeal, if the same is permissible.

Pre-decree Agreement:

A pre-decree agreement even if the same is entered into by the parties cannot be looked into by the execution court unless the same is incorporated in the decree itself and the parties choose to bring to the notice of the court before passing the decree.

Decree Passed without Jurisdiction-Nullity:

It is a fundamental principle well established 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 a defect cannot be cured even by consent of the parties.

When a decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record.

But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the question raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

Where a decree for ejectment of a lessee is passed by a court of small causes without any objection to its jurisdiction and the question of jurisdiction of that court to entertain the suit depends upon interpretation of the terms of agreement of lease and the user to which the land was put at the date of the grant of lease, these questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the court which passed it.

A court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

The execution court cannot travel beyond the terms of decree under execution. Amount due to dismissed employee was calculated by taking arrears of salary, gratuity, pension, etc. and certain sum decreed in his favour. Executing court granted decree for interest which was not part of decree for execution on the basis of delay and unreasonable stand taken during execution proceedings. Such a decree for interest is without jurisdiction.

Executing court cannot go behind the decree. Where decree contained only declaratory relief without relief of any consequential payment of monetary benefits, the monetary relief cannot be granted by the executing court.

The question of bona fide requirement of landlord to reconstruct building was decided in favour of landlord. The execution court cannot be required to go into the validity of permit to reconstruct and eviction petition cannot be dismissed on that ground.

Executing Court is bound by terms of decree and it cannot add or alter decree. Government claimed and was granted relief of declaration of being in continuance of service. He has not claimed consequential reliefs as to arrears of salary and interest on arrears but the executing court granted the same. The decision of the executing court was not proper.

In absence of objections award decree became final and it was not shown to be passed without jurisdiction. In execution proceeding it cannot be objected that decree is nullity.

An executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding.

The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all.

Where the court is inherently lacking its jurisdiction the plea as to jurisdiction may be raised at any stage and even in execution proceedings and even if it was not raised in the trial court.

Suit for declaring order of termination to be null and void was decreed though it was time barred. Claim for arrears of salary in execution proceedings cannot be granted for entire period from the date of termination. In such a case arrears can be granted only for period falling within limitation for such suit.

Section 99, C.P.C. which provides that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, however, excepts from its operation the defects of jurisdiction. Section 99, therefore, gives no protection to decrees passed on merits when the courts which passed them lacked jurisdiction as a result of over-valuation or under-valuation.

It is with a view to avoid this result that section 11 of the Suits Valuation Act was enacted. It provides that objections to the jurisdiction of a court based on over-valuation or under-valuation shall not be entertained by an appellate court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it.

With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate court or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction.

The policy underlying section 21 and section 99, C.P.C. and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice, and the policy of the legislature has been” to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by the appellate court, unless there has been a prejudice on the merits.

Kalipada Sarkar v. Hari Mohan Dalai:

The powers of the executing court were fully discussed in Kalipada Sarkar v. Hari Mohan Dalai. The question for determination in that case was, whether the validity of the decree could be questioned in execution proceedings on the ground that as the lunatic plaintiff was not properly represented by a competent next friend in the suit, no operative decree for costs could have been made against him.

The Court observed that it was not in dispute that the court executing a decree must take the decree as it stands, and has no power to go behind the decree or to entertain an objection to the legality or correctness of the decree. The principle was recognised by the Judicial Committee in numerous cases.

The doctrine itself was not disputed before their lordships, but its applicability to the circumstances of the case was denied by the appellant. The argument in substance was that the lunatic was not at all represented before the court at the trial of the suit, and the court was consequently not competent to pass a decree to his detriment.

Their lordships repelled the contention by observing that the substance of the matter is that a proceeding to enforce a judgment is collateral to the judgment and therefore no enquiry into its regularity or validity can be permitted in such a proceeding.

On this principle, it could properly be held that a judgment against a person who was non composmentis at the time of the trial, and yet was not represented by a legal guardian, is not to be impeached in execution, but should be reversed or annulled in some direct proceeding taken for that purpose.

Their lordships accordingly were of opinion that the safest course to follow was to adhere rigidly to the established principle that every order and judgment however erroneous, was, in the words of Lord Cottenham in Chuck v. Cremer, good until discharged or declared inoperative, and that the execution court could not enquire into the validity or propriety of the decree.

That, no doubt, assumed that there was a valid decree in existence, that is, an adjudication by a Court of Justice, a decree or order which had not ceased to be operative and was capable of execution.

When a decree directs possession to be delivered over a property, it intends that possession should be delivered over in the same condition in which it was on the date of the decree. It follows that if the condition of the property is altered to the prejudice of the decree-holder by the time possession is delivered to him in execution, the decree is not fully satisfied, and whether the condition is altered or not to the prejudice of the decree-holder and to what extent, if at all, he should be compensated, are questions relating to the satisfaction of the decree within the meaning of section 47 of the Code and the decree-holder should not be required to file another suit for damages.

As said earlier, an execution court cannot go behind the decree and question its correctness; but when the decree is silent and gives no indication as to what property should be sold in execution, it is permissible for the court to look into the judgment in order to find out whether upon any issue properly raised and determined as between the parties interested the property brought to sale has been held to belong to the judgment-debtor.

A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor and cannot entertain any objection that it is incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

An executing court has no jurisdiction to entertain and decide the claim on an application for releasing the properties from attachment after sale has taken place because the sale ipso facto determines the attachment.

A claimant’s application for adjudication of his claim of title and possession over the disputed property before an allegation of resistance or obstruction on his part made by the decree-holder under Order XXI, Rule 97 of the Code was premature and has got to be dismissed without enquiry. The claimant cannot pray for inherent jurisdiction either for passing an order releasing property from attachment.

If by reason of any alteration of the factual or legal situation, a judgment of a court of law is rendered erroneous the remedy is by way of appeal or review, but so long as the judgment stands it cannot be disregarded or ignored.

The pendency of civil revision amounts to pendency of suit itself, as pendency of revision is continuation of the proceedings in suit.

Exceptions:

There are, however, three cases where the executing court can go behind the decree. These are as under:

1. Decree Nullity:

Where the decree is a nullity. The objection of the judgment-debtor that the decree is a nullity because it was passed against a dead person, without bringing his legal representatives on the record, is an objection which can be entertained by the executing court, for in such a case if the objection is proved there is no executable decree at all.

2. Decree Ambiguous:

Where the decree is ambiguous. A decree instead of meaning one thing may mean two or more different things. In such a case it is the duty of the executing court to go behind the decree and seek to ascertain from the judgment and pleadings the true implication of the decree. This is necessary to enable the executing court to execute the decree.

3. Decree made without jurisdiction:

Where the decree has been made by a court without jurisdiction, i.e., in respect of territorial or pecuniary jurisdiction or in respect of the judgment-debtor’s person. An objection based on the ground of jurisdiction can be entertained by the executing court for, if the decree has been passed without jurisdiction by a court, there is no executable decree.

Property was purchased with knowledge that tenant was in possession of premises. In suit for possession by vendee the tenant was not impleaded as party and no independent suit filed against the tenant and decree for possession of property was obtained. Tenant filed suit under Order XXI, Rules 98, 99 for his right to remain in possession. Meanwhile in execution of decree by transferee owner the dispossession of the tenant without due process of law is illegal and violative of Art. 21 of Constitution of India.

A plea which goes to the root of jurisdiction can be allowed to be raised at execution stage. For example, a declaratory decree was obtained on basis of custom. Plea can be raised at execution stage that since subsequent amendment made retrospectively takes away custom of contesting alienation altogether, the decree passed by trial court is nullity.

Decree granted for certain benefits by a court having no jurisdiction to entertain such claims. Decree was nullity and was set aside. Question of nullity can be raised at any stage including the stage of execution.

Inherent Lack of Jurisdiction—Illustration:

Sunder Das v. Ram Prakash:

Where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented.

Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree.

Acquiescence or consent effect—cannot confer jurisdiction:

Neither acquiescence nor consent of parties can confer jurisdiction on a court which lacks inherent jurisdiction and a decree passed without jurisdiction is a nullity.

Kiran Singh v. Chaman Paswan:

In 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.”

To maintain a valid objection under section 47, C.P.C., it must be shown that there is or was a decree capable of execution. If a decree is not capable of execution no question of its execution can arise. Therefore, section 47 of the Code of Civil Procedure cannot bar a suit for the enforcement of certain claims which have accrued subsequent to the passing of the decree even though by virtue of rights declared by the decree.

Objections under section 47, C.P.C. are applications and are governed by Article 173 of the Limitation Act.

Parties to the proceedings:

A question between the parties as to who are the legal representatives of a deceased judgment-debtor falls within the purview of section 47, C.P.C.

Where in execution of a decree passed against a legal representative to I be recovered from the estate of the deceased, certain personal property of I the legal representative is attached, the objection of the legal representative I being a party to the suit shall be determined by the court executing the decree under section 47, C.P.C. and not by a separate suit.

It is the duty of the executing court to decide who is the legal representative of the deceased judgment-debtor, and it has jurisdiction to decide the question. The fact that the decision was wrong will not vitiate the execution proceedings and the sale as being without jurisdiction.

The word “representative” in section 47 includes not only a legal representative but also representative-in-interest who is bound by the decree.

A pro forma defendant is also a party to the suit. An auction purchaser is as well as party to proceedings in execution of the decree based on the mortgage.

Act No. 66 of 1956 has substituted a new explanation for the old one I so as to enlarge the scope of the term “parties to the suit” by adding a purchaser at a sale in execution of the decree along with a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed to be parties to the suit.

This has set at rest the controversy arising out of conflicting decisions by expressly providing that a purchaser at a sale in execution of the decree shall be a party to the suit for purposes of section 47.

After an auction sale of an immovable property in execution of a decree, a decree-holder auction-purchaser can move the executing court for delivery of vacant possession. It is not necessary for him to file a separate suit for this purpose. Section 47 of the Code of Civil Procedure should be construed liberally.

If a liberal construction be put upon it, it is difficult to understand why a decree-holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale.

After all a decree-holder purchases the property in execution of his decree with the permission of the court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him.

Having regard to this consideration, if any question is raised by the judgment-debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistance to delivery of possession, the question must be one which relates to the execution, discharge and satisfaction between the parties to the suit.

If a confirmation of the sale would finally terminate all questions as to execution of the decree, it is difficult to appreciate why the legislature would frame such rules as rules 95 to 102 under Order XXI of the Code.

It is important to remember that after the decision of the Privy Council in Ganpathy v. Krishnamchaiar, there has been an amendment of section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must be determined by the executing court and not by a separate suit.

If at a court auction, property is purchased by a bona fide purchaser who was a stranger to the decree, and the decree is set aside or reversed, restitution cannot be claimed by the judgment-debtor. The Amending Act of 1956 has only laid down that, amongst others, auction purchasers irrespective of the fact whether they were parties to the suit from before or not, shall be deemed to be such parties for the purposes of the section.

The said amendment has not the exceptional effect of depriving a bona fide auction-purchaser of the benefit of sale in his favour. Such an auction-purchaser is entitled to protection on an equitable principle that he should not be made to suffer on account of any mistake or irregularity committed by a court of law.

Scope of power of executing court under Order XXI, Rules 38 and 97 to 106 is intended to with every sort of resistance or obstruction offered by any person. All questions between the parties and third party shall be determined by the executing court, if such questions are relevant to the adjudication of the application.

It is necessary that the questions raised by the resistor or obstructor must legally arise between him and the decree holder. Executing court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property.

The adjudication need not necessarily involve a detailed enquiry or collection of evidence. It can be made on admitted facts or on the averments made by the resistor. The court can also direct the parties to adduce such evidence which deems necessary for such determination.

Interlocutory or Ancillary order:

An interlocutory or ancillary order is not revived by the restoration of a suit which had been earlier dismissed for default. For a revival of the interlocutory or ancillary order a specific order has to be obtained from the court. There is no distinction except regarding the consequences between an order of injunction, order of attachment before judgment and an order of stay of the proceedings.

The first two are orders to bind a particular party. The third is an order issuing direction to a subordinate court, but all the three are ancillary and interim orders. They work towards the ultimate decision of the main suit or a proceeding and are in the nature of aid and supplements to the suit or proceeding itself.

It does not make any difference, though from orders passed under Order XXXVIII, Rule 5 and under Order XXXIX, Rules 1 and 2, appeals are provided, while from the order of stay, no appeal is provided. All the three types of orders are integral parts of the suit or proceeding itself.

All ancillary and interim orders including the order of injunction, of an attachment before judgment and of stay have to fall as soon as the suit or proceeding is dismissed. The restoration of the suit or proceeding itself will not revive these orders. A separate order for revival will have to be obtained.

Gulzar Bhai ka Beta

Minor:

Where there is nothing illegal on the face of the decree the executing court cannot enquire if the minor was properly served or represented in the suit. An objection by the judgment-debtor that he was sued as a major while he was a minor, in effect amounts to a plea that he was not a party and consequently the remedy is a suit. The executing court cannot determine this objection under Order XLVII, C.P.C.

Where a decree was passed on a compromise entered into by the mother as guardian ad litem after obtaining due leave under the provisions of the Code and the guardian ad litem did not turn up in execution to proceed, it was held that the objections on behalf of the minor to the validity of the decree passed upon the negligence of his guardian should be taken before the trial court.

Claim by legal representative:

Where a decree for sale of the mortgaged property is passed against a mortgagor and on his death his legal representative is brought on the record, an objection that the property belonged to the legal representative (and not to the mortgagor) cannot be enquired into by the execution court.

To permit such an objection to be entertained by the execution court will be to permit that court to question the validity of the decree itself, and such a question does not pertain to execution, discharge or satisfaction of the decree as envisaged by section 47, C.P.C.

Remedy by separate suit in case of death of judgment-debtor pending execution of decree for eviction:

It is not open to the legal representative of a deceased judgment-debtor, brought on record during the execution of a decree for eviction, to raise the question, having regard to the provisions of section 47 that the decree sought to be executed was not binding on him having been obtained in a fraudulent and collusive manner, and a suit by the legal representative for declaration of his title and recovery of possession of the land in dispute on grounds mentioned above is not barred by section 47.

Where a decree for permanent alimony and maintenance in favour of divorced wife was passed, it was held that the same was not extinguished with the death of the husband and the estate was liable to be proceeded against in the hands of the heirs for the satisfaction of the decree.

The subsequent suit for creation of a charge and for recovery of outstanding maintenance was treated by the Supreme Court as a measure of ex debito justitiae as an execution petition.

Their lordships observed that there is good authority for converting an execution application into a suit and there could be no valid objection to the counter-process of converting a suit into an execution proceeding, particularly when an ill-advised widow would on account of some procedural error be likely to be deprived of the fruits of an order of maintenance. It was therefore ordered that the suit be treated as an execution application.

Decree passed in favour of a dead person:

Where the court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity. It may, no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review.

Generally speaking, a decree passed in favour of a dead person is not a nullity, though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit that would not make the decree passed in the suit as one without jurisdiction and the executing court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour.

Objection to execution:

The legality of the execution proceedings or jurisdiction of the execution court to order sale is a matter falling under section 47, C.P.C. But an objection by the judgment-debtor that the decree is invalid as being collusive or that the decree was obtained by fraud can be tried only in a regular suit and not in execution.

These questions relate to the validity of the decree and not to execution, discharge or satisfaction of the decree. The execution court cannot go behind the decree and enquire into its validity. The law is that which in reality forms the basis of an independent suit cannot be introduced as a question to be tried in execution proceedings.

Decree without Jurisdiction:

An execution court cannot generally question the validity of the decree; but where it was passed without jurisdiction or is otherwise a nullity, the execution court can question its validity and refuse to execute the decree on that ground.

Decree of Nullity: Meaning of the Expression ‘null and void’:

The executing court is bound to execute the decree and cannot go behind the same unless the decree passed by it is a nullity. It appears there is a lot of confusion as to what is meant by “decree being null and void”.

A decree is said to be a nullity if it is passed by a court having no inherent jurisdiction. Merely because a court erroneously passes a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the court passing the decree and not merely voidable decree.

Delivery of Possession:

Where the decree is for possession, it is for the executing court to go into the question if the dispute relates as to what lands constitute the subject-matter.

Adjustment:

Where in execution of a money decree a judgment-debtor pleads payment or adjustment the question falls within section 47, C.P.C., and can be dealt with in execution proceedings, but an uncertified payment or adjustment cannot be entertained under section 47 of the Code by the court executing the decree.

An agreement not to execute a decree entered into subsequent to the filing of the suit but prior to the passing of the decree can be pleaded in bar of execution and the executing Court can determine if the agreement was true. The executing court has no jurisdiction to enquire into a payment or adjustment before the decree at variance with the latter.

On harmonious interpretation of general provision under S. 47 must yield to special provisions contained in Order XXI, Rule 2 which have been enacted to prevent the judgment-debtor from setting up false, or cooked up pleas so as to prolong or delay the execution proceedings. Thus the adjustment or compromise decree must be reported to the court so that court may record or certify the same. In absence of it, the executing court may proceed to enforce the decree.

Where in execution proceeding eviction of tenant the compromise or adjustment was not recorded and certified under Order XXI, Rule 2, the executing court cannot refuse to execute the decree for eviction of the tenant.

Excessive Execution:

A question relating to excessive execution raised by a person who was a party to the suit should be dealt with by the court executing the decree and not by a fresh suit.

Sale in Contravention of Stay Order:

An application to set aside the sale held in contravention of a stay order is, as between the parties to the suit, an application under section 47, C.RC. In any event it is an application maintainable under section 151 of the Code and an order thereon is appealable.

Competency of Appeal and Interlocutory Orders:

Interlocutory orders dealing with matters of procedure can hardly be said to be determination of any question within section 47 and are not appealable. There must be determination of the rights or liabilities of the parties to the execution, discharge or satisfaction of the decree.

An appeal lies against an order of the lower court refusing to stay execution.

Fresh suit for possession barred:

Where the plaintiffs were granted a decree for possession by partition which they did not execute and allowed it to get time-barred and not even otherwise obtain possession over the property, they cannot maintain a fresh suit for possession on the basis of the earlier decree, and such a suit is barred by section 47, C.RC.

Appropriate Proceedings:

In a suit for possession High Court ordered that plaintiff could seek compensation for properties in ‘appropriate proceeding’. ‘Appropriate proceeding’ means separate independent proceeding and not execution proceeding of very same decree. So application for compensation in execution of decree is not maintainable.

But where party was in possession of land on the basis of compromise decree and was subsequently dispossessed, he is entitled to file fresh suit on the basis of title under compromise decree. In such case suit is not barred under section 47 of C.P.C.

Doctrine of Eclipse:

Where the decree which had earlier erroneously been held to be inexecutable on the ground of being without jurisdiction in view of interpretation of the then prevailing law was revived subsequently by the legislature clarifying its intention and conferring jurisdiction on such courts with retrospective effect, it has been held by the Supreme Court that the doctrine of eclipse applied in the present case and the decree had not become extinct but remained only dormant which would be revived as a result of the amendment and would become executable. It was held in Deep Chand v. State of U.P:

“……… A post-Constitution law may infringe either a fundamental right conferred on citizens only or a fundamental right conferred on any person, citizen or non-citizens of the fundamental right and, therefore, will not have any operation on the rights of the citizens, but it will be quite effective as regards non-citizens.

In such a case, the fundamental right will, qua the citizens, throw a shadow on the law which will nevertheless be on the Statute Book as a valid law binding on non-citizens and if the shadow is removed by a constitutional amendment, the law will immediately be applicable even to the citizens without being re-enacted.

In order words, the doctrine of eclipse as explained by the Supreme Court in Bhikaji Narain Dhakras v. State of Madhya Pradesh, also applies to a post-Constitution law of this kind……

A pre-Constitution law, stating in the words of Das, J. as he then was, exists notwithstanding that it does not exist with respect to the future exercise of the fundamental rights. That principle has been extended in this decision, by invoking the doctrine of eclipse.

As the law existed on the statute book to support pre-Constitution Acts, the Court held that the said law was eclipsed for the time being by one or other of the fundamental rights and when the shadow was removed by the amendment of the Constitution, the impugned Act became free from all blemish or infirmity.”

In Mahendra Lai Jaini v. State of Uttar Pradesh, the Supreme Court held as follows:

“The pre-Constitution laws which were perfectly valid when they were passed and the existence of which is recognised in the opening words of Article 13(1) revive by the removal of the inconsistency in question.

This in effect is the doctrine of eclipse, which if we may say so with respect was applied in Bhikaji Narain’s case. Similarly, in the case of Kailash Sonkar v. Maya Devi, the Supreme Court made the following observation:

“In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her life-time the person is reconverted to the original religion the eclipse disappears and the caste automatically revives.”

Objection to Attachment of Property by a Third Party and Investigation of Claims:

Rule 58 of Order XXI provides that where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:

Provided that no such claim or objection shall be entertained

(a) Where, before the claim is preferred or objection is made, the property attached has already been sold; or

(b) Where the court considers that the claim or objection was designedly or unnecessarily delayed. [Order XXI, Rule 58(1)].

All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under Rule 58 and relevant to the adjudication of the claim or objection, shall be determined by the court dealing with the claim or objection and not by a separate suit. [Order XXI, Rule 58(2)].

Upon the determination of the questions referred to in sub-rule (2), the court shall, in accordance with such determination,—(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (b) pass such order as in the circumstances of the case it deems fit. (Order XXI, Rule 58(3)].

Where any claim or objection has been adjudicated upon under Rule 58, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. [Order XXI, Rule 58(4)].

Where a claim or an objection is preferred and the court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to’ the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. [Order XXI, Rule 58(5)].

The object of the rule is to secure a speedy settlement of the question of title raised at an execution sale. It gives the claimant a speedy and summary remedy. The court is bound to decide the question of possession when an objection is made to attachment of the property in execution of a decree. On the question of possession the onus is on the claimant or objector.

After the amendment of the Code of Civil Procedure, 1908, by Parliament, Act 104 of 1976, Rule 58 of Order XXI will take within its sweep an objection filed by a third party to attachment of his interest in the immovable property proceeded against and the question relating to the objection, claim of right and interest in the property must be decided before proceeding further.

Effect of Order:

Decision in claim proceedings under Rule 58 becomes conclusive and operates as res judicata in later proceedings. But the dismissal of an application under Rule 58 does not prevent the person from applying to have the sale set aside under Rule 89 in case of sale of an immovable property in execution of a decree on his depositing in court for payment to the purchaser a sum equal to five per cent of the purchase money and for payment to the decree-holder the amount specified in the proclamation of sale.

The remedy provided by Rule 58 of Order XXI to third parties is permissive and alternative.

As stated above, an order under Rule 58 is conclusive and it cannot be challenged by a separate suit. It can only be challenged in a suit brought under Rule 58(5) within a year from the date of the final order, the rule laying down that where a claim or an objection is preferred, and the court under the proviso to sub-rule (1), [viz., where before the claim is preferred or objection is made, the attached property has been sold or where the court holds that the claim or objection was designedly or unsuccessfully delayed], refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, the order refusing to entertain the claim or objection shall be conclusive. He may also bring a regular suit without taking recourse to the provisions of Order XXI, Rule 58.

Claimant to prove his interest in the attached property on the date of attachment:

A claim or an objection under Order XXI, Rule 58 can be allowed only if, on evidence adduced by him, the claimant or objector proves that he had an interest in, or was possessed of, the attached property on the date of attachment. The emphasis throughout these rules is on the date of attachment and not before or after it.

Where the claim to the attached property was decreed after the date of the attachment, the claimant cannot be said to have had interest in the property on the date of attachment.

Where the court releases the property from attachment in which property the claimant has not proved his interest on the date of the attachment, the court exceeds its jurisdiction or at least exercises it illegally or with material irregularity and the case is covered by section 115, C.P.C.

Section 47 and Rule 58 of Order XXI compared:

It will thus be seen from the above that objections to attachment raised by a party to the suit in which the decree under execution was passed or his representatives fall within the scope of section 47, while objections to attachment raised by a third party come under Rule 58 of Order XXI. The distinction is important in the following respects:

1. Where an objection to attachment is made by a party to the suit or his representative, the objector should proceed by an application under section 47. It bars a separate suit so far as the question relates to the execution, discharge or satisfaction of a decree.

But where an objection to attachment is made by a third party, the objector may either proceed by an application under Rule 58 of Order XXI, or he may bring a regular suit to establish his objection. Failure to proceed by an application under Order XXI, Rule 58, is no bar to a separate suit.

2. An order passed under section 47 allowing or disallowing an objection to. attachment is not a decree within the amended meaning of section 2(2), and is, therefore, not appealable. But orders made under Order XXI, Rule 58 as a result of the objections lodged under Rule 58 are appealable inasmuch as the order made thereon shall have the same force as if it were a decree.

A fresh suit also can be instituted where the claim or objection is not enteratined by the Court under Rule 58 on the ground that the claim or objection was unnecessarily delayed or the attached property had already been sold before the claim was preferred or objection made.

3. The difference as to the scope of the enquiry between a proceeding under section 47 and the one under Order XXI, Rule 58, is that in the latter the enquiry is confined to the question of possession, but it is not so in the former where the enquiry involves a determination of all the questions relating to the execution, discharge or satisfaction of the decree and not mere possession.

Stay of sale:

Where before the claim is preferred or the objection was made, the property attached had already been advertised for sale, the court may

(a) If the property is movable, make an order postponing the sale pending the adjudication of the claim or objection, or

(b) If the property is immovable, make an order that, pending

adjudication of the claim or objection, the property shall not be sold, or, that pending such adjudication, the property may be sold but the sale shall not be confirmed, and any such order may be made subject to such terms and conditions as to security or otherwise as the court thinks fit. (Order XXI, Rule 59).