Duties of Executing Court

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Executing Court

What are the duties of Executing Court?

We all are acquainted with the procedure as to be followed once a decree is passed by the court. The party in whose favour such decree is passed goes for execution of such decree whereas the other party may go for an appeal. While the parties who go for execution of such decree, that means to bring the decision of the court into effect, has to reach out to the executing court. There are certain power, duties and obligations of the executing court. One of the main duties includes determination of the questions by the executing court. The procedure regarding the same is provided under section 47 of the Code of Civil Procedure, 1908.

The jurisprudential approach behind the provision regarding executing court can be considered to be two fold. Firstly it lays down the principle that matters relating to the execution, discharge or satisfaction of a decree arising between the parties, or their representatives, should be determined in execution proceedings and not by separate suits.[1] Secondly, like section 11 dealing with res judicata, Section 47 has been enacted with a view to enable parties to obtain adjudication of questions relating to execution without unnecessary expenses or delay which a fresh trial might entail.[2]

The bare provisions of section 47 provides that 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. While Clause two has been omitted, clause three provides 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.

There are two explanations attached to this section the first one says that for the purposes of this section, a plaintiff who’s Suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. The second explanation provides 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 degree is passed and 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.

To satisfy the provisions of section 47 there are certain conditions which are attached to it as are aptly observed in the case of Merla Ramanna v. Nallaparaju[3] which states that firstly the question must be one arising between parties to the suit in which the decree is passed, or their representatives and secondly, it must relate to the execution, discharge or satisfaction of the decree and it is required that both these conditions are to be cumulatively satisfied.

Coming onto the literal interpretation of the contents of the section, the parties ti the suit refers to the parties opposing each other whereas the term representatives not only includes legal representatives to the parties but also includes representatives of interest. However, the interpretation of the term questions relating to execution, discharge or satisfaction of the decree has been widely interpreted so as to include such questions which ranges from whether a decree is executable or whether the property is liable to be sold in execution of the decree or whether the decree holder is entitled to mould relief in accordance with the change in circumstances or whether the decree is fully satisfied or whether the execution of decree was postponed or whether an application to set aside sale is maintainable or whether the sale in execution is warranted by the terms of the decree or whether a particular property is or is not included in the decree or whether a party is or is not entitled to restitution of property or whether a person is or is not representative of a party or whether the decree holder is in a position to carry our his part of the decree, etc, [4] are some of the questions.

There are some substantial powers and duties also conferred by virtue of this provisions which apart from empowering the executing court to determination of all questions regarding execution of decrees, it also empowers the court to treat suit as an execution application and can also mould the relief among other powers. The power also exists in relation to the execution itself wherein executing court finds the inherent lack of jurisdiction of the court who has passed such decree it may even refuse to execute it and if there is an objection as to validity which is so apparent as it on the face of the record, the executing court can even raise such objection.

However, where there are powers, there also arises responsibility which ranges from remaining within the bounds of the decree which has been passed by the court. Since executing courts have no right to question a decree, it has been held that where the terms of decree are vague and ambiguous, it is the duty of the executing court to interpret the decree with a view to find out and ascertain the meaning of the term used.[5]

As a concluding remark it can be said that section 47 embraces all matters connected with the execution of a decree between the parties or their representatives and covers all questions relating to the execution, discharge o satisfaction of the decree, it should be liberally construed so as to empower the court to determine all such questions, unless they are clearly fall outside the scope and purview of it.[6]


References:

[1] Nandarani Mazumdar v. Indian Airlines AIR 1983 SC 1201

[2] Kayen Biswas v. Bahadur Khan AIR 1925 Cal 1258

[3] AIR 1956 SC 87

[4] Author’s Code of Civil Procedure Volume I

[5] SBI v. Indesport Registered AIR 1992 SC 1740

[6] Harnandrai v. Debidutt AIR 1973 SC 2324

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