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Judicial Interpretation: Duty of Executing Court To Determine True Extent of Decree

The executing court has the duty to determine the true extent of the decree based on Section 47 of the Civil Procedure Code. Section 47 lays out three key questions for the executing court to determine, including all questions arising between parties relating to the execution, discharge or satisfaction of the decree. Judicial interpretations have held that Section 47 should be construed widely to avoid separate suits and prolonging litigation. The executing court cannot go behind the decree but it is their duty to find the true effect of the decree by considering pleadings and prior proceedings if needed.

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590 views1 page

Judicial Interpretation: Duty of Executing Court To Determine True Extent of Decree

The executing court has the duty to determine the true extent of the decree based on Section 47 of the Civil Procedure Code. Section 47 lays out three key questions for the executing court to determine, including all questions arising between parties relating to the execution, discharge or satisfaction of the decree. Judicial interpretations have held that Section 47 should be construed widely to avoid separate suits and prolonging litigation. The executing court cannot go behind the decree but it is their duty to find the true effect of the decree by considering pleadings and prior proceedings if needed.

Uploaded by

Lavkesh Bhambhani
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© © All Rights Reserved
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DUTY OF EXECUTING COURT TO DETERMINE TRUE EXTENT OF DECREE

The term “execution” has not been defined in the code. The expression “execution” means enforcement or
implementation or giving an effect to the order or judgment passed by the court. Section 47 and Order
XXI of the Civil Procedure Code, 1908 consists of provisions relating to execution of decree. Order XXI
is the most exhaustive order comprising of one hundred and three rules.

Section 47 of the Code lays down that following questions are to determined by executing court:

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;
2. Questions 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;
3. Questions relating to the delivery of possession of property to purchaser or his
representative.

JUDICIAL INTERPRETATION
 Harnandrai Badridas v Debidutt Bhawati Prasad [(1973) 2 SCC 467]
It has been consistently held in a series of judicial pronouncements that there should be a
wide and liberal construction of Section 47 so as not to drive the parties to separate suit
and prolong litigation. Section 47 of the Code is couched in a very wide language. The
very object is to avert another suit concerning the decree under execution
 Bhavan Vaja and Others v. Solanki Hanuji Khodaji Mansang and Another
[1973 (2) SCC 40]
It is true that an executing court cannot go behind the decree under execution. But that
does not mean that it has no duty to find out the true effect of that decree. For construing
a decree it can and in appropriate cases, it ought to take into consideration the pleadings
as well as the proceedings leading up to the decree.

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