Section 47 CPC | Executing Court Can Consider Only Questions Limited To Execution Of Decree; Can't Go Behind Decree: Supreme Court

Lamenting the long delay in the execution of decrees, the Supreme Court observed that under Section 47 of the Code of Civil Procedure, the Executing Court can only go into questions that are limited to the execution of decree and can never go behind the decree.

As per Section 47, 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.

Referring to this Section, the Court said :

"A bare perusal of the aforesaid provision shows that all questions between the parties can be decided by the executing court. But the important aspect to remember is that these questions are limited to the “execution of the decree”. The executing court can never go behind the decree."

A bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a civil appeal filed by a landlord, aged above 70 years, challenging an order of the High Court, which directed the Executing Court to take a fresh decision on the objections raised by the tenants (judgment-debtors) to the maintainability of the execution petition in the eviction suit.

The execution petition was filed on the strength of a compromise decree, as per which the landlord was entitled to seek eviction if there was default in payment of rent by the tenant. In 2013, the Executing Court held that the decree can be executed, as there was default in payment of rent. Four years later, the tenants filed an application under Section 47, objecting to the maintainability of the execution petition, by denying that there was any default. The Executing Court rejected the objections by holding that it was not raised before in 2013.

The landlord approached the Supreme Court aggrieved with the High Court's order asking the Executing Court to look afresh into the objections.

At the outset, the Supreme Court expressed its anguish at the plight of a decree-holder in getting the decree executed.

"As long back as in 1872 (when the CPC of 1859 was in operation), it was observed by the Privy Council that, “the difficulties of a litigant in India begin when he has obtained a decree”. The situation, we are afraid, is no better even today."

The Court observed: “Under Section 47, CPC the executing court cannot examine the validity of the order of the court which had allowed the execution of the decree in 2013, unless the court's order is itself without jurisdiction.”. Further, the Court also pointed out that the 2013 execution order was never challenged by the tenants/judgment debtors before any forum.

The Court expressed its concerns pertaining to the inordinate delay in execution of a decree. It opined: “the reality is that pure civil matters take a long time to be decided, and regretfully it does not end with a decision, as execution of a decree is an entirely new phase in the long life of a civil litigation. The inordinate delay, which is universally caused throughout India in the execution of a decree, has been a cause of concern with this Court for several years.”

In this context, the Court referred to the directions passed in Rahul S. Shah v. Jinendra Kumar Gandhi and Others(2021) regarding expeditious execution of decrees.

"The above judgment is an important judgment in respect of Section 47 as well as Order XXI, CPC as the three Judge Bench decision of this Court not only condemned the abuse of process done in the garb of exercise of powers under Section 47 read with Order XXI, CPC, but also gave certain directions to be followed by all Civil Courts in their exercise of powers in the execution of a decree," the Court observed.

The Court said that it has referred to the Rahul S Shah decision only to "highlight the slow process in the execution of a decree and the concern of this Court, and its efforts in the past, to improve this situation."

Delving into the submission by the decree holder, before the High Court, that the order dated 12.02.2013 had attained finality and res judicata would apply against the judgment debtors, the Court explained:

“The logic here is that an execution proceeding works in different stages and if the judgment debtors have failed to take an objection and have allowed the preliminary stage to come to an end and the matter has moved to the next stage, the judgment debtors cannot raise the objection subsequently, and revert back to an earlier stage of the proceeding.”

In view of these observations, the Court held that the High Court had committed an error by not interfering in the matter and this case has unnecessarily been dragged on for so long, which is for nearly two decades. Thus, it directed to proceed with and complete the execution as expeditiously as possible (within a period of six months from the date a copy of this order is placed before the court).

Related reports-

'Fit Case To Be Included In Law School Syllabus' : Supreme Court On 5th Round Of Litigation Stalling Execution In 50 Yr Old Suit

Execution Petitions Must Be Disposed Of Within Six Months ; Courts Must Record Reasons If Unable To : Supreme Court

Case Details: Pradeep Mehra V. Harijivan J. Jethwa, Civil Appeal No. 6375 Of 2023

Citation : 2023 LiveLaw (SC) 936

Click Here To Read/Download Judgment