Section 47 deals with the power of court executing decree. The executing court have the power to consider each and every question which is determined while passing the decree by the other or same court.
1. Conditions: -
- All questions must arise between the parties to the suit or their representative.
- It must arise in the suit in which the decree was passed.
- It must relate to the execution, discharge or satisfaction of the decree.
- It must be determined by the execution court.
- Ambit and Scope
The scope of sec. 47 is very wide as exclusive jurisdiction has been conferred on the executing court in respect of all matters relating to execution. Section 47 deals with the powers of the court executing the decree while order XXI deals with the procedure which a court whose duty it is to execute decree has to follow in a limited class of cases relating to discharge or satisfaction of decree either by payment of money out of court or adjustment in any other manner by consensual Arrangement.
The provision is not ultra vires Article 14 of the constitution.
- Applicability of Section 47:-
It does not apply where dispute arises between parties and his own representative or between two persons who both represent same party. ( Mohd. Osman Ali v. Mohd. Kharim, 1995(2) CCC 408 A.P.)
- Object :-
- To provide cheap & expeditious remedy for determination of certain question in execution.
- To avoid the multiplicity of suits.
In conditions two are important: -
- One arises between parties or their representative.
- Execution, discharge or satisfaction of decree
- Whether a decree is executable?
- Whether the property is liable to be sold in execution of the decree?
- Whether a decree is fully satisfied?
- Whether a particular property is included or not in decree?
- Question regarding attachment, sale or delivery of property
DUTIES OF EXECUTING COURT
- Not to go beyond the decree.
- Not to question on the correctness of the decree. But if the decree prima facie appears to be vague or ambiguous the concerned court can question the correctness of decree.
- If executing court found that court which passes the decree don’t have jurisdiction for the same it can refuse to execute it.
1. Powers of Executing Court: -
The executing court shall posses all the powers as deemed necessary for the disposal of the application for execution of decree. Further, the powers of court can be summarized under two points: -
- Court have plenary power to determine all questions relating to execution of a decree.
- Power to determine all the questions arise before or after the executing of the decree.
2.Modes of Execution: -
Elaborate procedures have been laid down for execution of various types of decrees. By virtue of the very nature of such decrees special intricacies may be involved and specific remedies maybe provided under the law to meet with such situation.
- Delivery of property
- Moveable sec. 51(a) , Rule31
- Immoveable Rules 35-36
- Attachment and sale of property.
- Arrest and detention Sec. 51(C).
- Appointment of receiver Sec. 51(d)
- Partition Sec. 54
- Cross decrees and cross claims Rule 18-20
- Payment of money Rule 2 & 30
- Payment in court
- Payment out of court
- Certification of payment
- Uncertified payment
- Specific performance of contract Rule 32
- Injection Rule 32
- Restitution of conjugal rights, Rule 32&33
- Execution of document Rule 34
- Endorsement of negotiable instrument Rule 34
- Attachment of rent, mesne profits Rule 42
- Liability of surety Section 145
- Decree against firm, Rule 49-50
- Decree against corporation Rule 32
- Attachment of decree Rule 53
- Payment of coins or currency notes Rule 56.
1. C.K. Takwani- Code of Civil Procedure.
2. Lawmann’s Ready Reference on Civil Procedure Code,1908