This article has been authored by Riya Jain, 3rd year law student at Faculty of Law, Delhi University.

A goal set without establishing the process or way of achieving is considered as futile. Similarly, if the judgments rendered by the courts are not executed properly, the whole purpose of justice would be defeated. The lawsuit consists of three stages- initiation of suit, adjudication of suit and implementation of the order or judgment of the court on the lawsuit. The last stage ‘implementation’ is known as execution of the suit.

The word “Execution” although is not defined in Code of Civil Procedure (hereinafter referred as CPC). It simply means enforcing or giving effect to the judgment or order passed by the court of justice. Execution of the decree or order of the court is to compel the judgment debtor to carry out the mandate of the decree or order and enable the decree-holder to recover the thing granted to him by judgment.

WHICH COURT HAS THE JURISDICTION TO EXECUTE THE DECREE?

Section 38 of the CPC lays down the provision relating to the court by which decree may be executed. Section 38 of the CPC reads as ‘A decree may be executed either by the court which passed it or by the court to which it has been sent for execution’. The section means that a court that has neither passed a decree nor a decree is transferred for execution cannot execute it. The court which passed the decree may send it for execution to another court either on the application of the applicant (decree holder) or by the court itself.

QUESTIONS TO BE DETERMINED BY THE EXECUTING COURT

Section 47 of the CPC prescribes provisions relating to questions to be determined by the court executing the decree. It can be treated as one of the most important provisions in the code relating to the execution of a decree. The principle laid down by this section is that the matter relating to the execution or discharge of a decree that arises between the parties should be determined in executing proceedings and not by a separate suit. Simply it means that any question raised between the parties should be determined by the executing court and any further separate suit is barred for this purpose.

The sole objective behind this provision is to provide a cheap and expeditious remedy for the determination of certain questions in executing proceedings without recourse to a separate suit and to prevent unnecessary litigation. The provision saves the time of the court and puts an end to litigation. Section 47 has been enacted to enable parties to obtain adjudication of questions relating to execution without any unnecessary expenses or delay which a fresh trial might entail.

Section 47 of the code is very wide as it gives exclusive jurisdiction to the executing court in respect of all matters relating to execution, discharge, or satisfaction of a decree arising between the parties or their representatives. Simply it puts a bar for any further litigation relating to a matter for which a decree has been passed by the competent court and any type of question should be dealt by the executing court during the executing proceeding.

There are two conditions that must be satisfied for applying Section 47 of the code:

1. Any question which is to be raised must be one arising between the parties to the suit in which decree is passed, or their legal representative.

2. The question raised must relate to the execution, discharge, or satisfaction of the decree.

This type of question will be determined by the executing court and it has the power to determine such questions during the execution proceeding.

There exists a tussle or rather a conflicting opinion whether the Executing Court is bound by the language of the decree or has the power to go beyond it and give the decree-holder the fruits of the decree granted to him. The Apex court of the land has in many judgments, time and again reiterated the decision on the issue and drawn the line on the power of court executing the decree. The Supreme Court in a landmark case of Bhavan Vaja & Ors. vs Solanki Hanuji Khodaji Mansang & Anr. [(1973) 2 SCC 40] upheld that 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. In order to find out the meaning of the words employed in a decree the court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it.

In another case titled as Pratibha Singh & Ors. vs Shanti Devi Prasad & Ors. [(2003) 2 SCC 330] the court laid down that when the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all, a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances of each case-which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section

152 of the CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 of the CPC.

DIFFERENCE BETWEEN RES JUDICATA & SECTION 47

Though there is a difference between Res Judicata provided under Section 11 of the code and Section 47 which again bars any further filing of a suit. Res Judicata is regarding the finality of a judgment passed by the court on matters actually in issue before it and bars any further fresh trial of any kind relating to the same matter and between the same parties, whereas Section 47 deals with the enforcement of such decision and enacts that the question relating to execution shall be tried in execution proceeding only and not by any separate suit.

WHERE THERE IS RIGHT, THERE EXIST A DUTY TOO

The sole purpose of execution of the decree is to make sure that the fruits of the judgment should be served to the decree-holder and it is the duty and power of the executing court to ensure that the defendant gives the plaintiff the very thing which is directed by the decree and nothing more or less should be granted.

The power which is to be exercised by the executing court relates to the procedure to be followed in the execution of a decree and does not extend to substantive rights of the parties. The executing court cannot convert itself into the court passing the decree.

Where there is right there is a certain duty. Certain duties are imposed on the executing court as it cannot go behind the decree which is passed by the court. The executing court is bound to execute the decree as it is. It cannot question the correctness of the decree, but in situations where certain terms are vague or ambiguous, the executing court is under the duty to interpret the decree to find out and ascertain the meaning of the term used. If in a case where there is an inherent lack of jurisdiction on the part of the court passing the decree, the executing court has the duty and can refuse to execute the decree.

CONCLUSION

The power of courts to execute decrees under the Code of Civil Procedure is fundamental to maintain the rule of law and ensuring that justice is not merely theoretical but practically enforceable. While the CPC establishes a solid legal foundation for the execution of decrees, ongoing challenges necessitate reforms aimed at improving efficiency and effectiveness. By addressing delays, enhancing procedural clarity, and ensuring equitable access to justice, the judicial system can strengthen public confidence in its ability to enforce civil rights and uphold the integrity of its decrees. The Supreme Court in the case titled as Rahul S. Shah vs Jinendra Kumar Gandhi & Ors. [(2021) 6 SCC 418] exercising its jurisdiction under Article 142 read with Article 141 and 144 of the Constitution of India in larger public interest to subserve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law, laid down directions to be mandatorily followed by all the court dealing with suit and execution proceedings.

However, mere directions are not enough and will definitely not suffice unless and until they are properly implemented by the executing court. Nevertheless, it is no doubt a step in the right direction and will improve the situation and pendencies in the long run.