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civil_laws:executing-court-decree-go-behind

An executing court cannot travel beyond the order or decree under execution

There are three stages in litigation:

  • Institution of litigation.
  • Adjudication of litigation.
  • Implementation of litigation.

Execution is the last stage of any civil litigation. 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 of justice. “Execution” means the process for enforcing or giving effect to the judgment of the court. Implementation of fruits of litigation is known as execution.

A decree will come into existence where the civil litigation is ended with judgment. Upon judgment a decree shall be drawn as provided under Section 33 CPC if it would come within the definition of decree as provided under Section 2 (2) or as deemed decree under other provisions.

An executing Court cannot travel beyond the order or decree under execution, it gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21, CPC. It is well-settled that an executing court cannot travel beyond the order or decree under execution1).

The executing court cannot question the validity of a decree. It has to take the decree as it stands and has to execute it according to its terms. The executing court must abide by the directions contained in the decree. It is beyond its province to question its legality or correctness. There are three cases where the executing court can go behind the decree. They are as under:

  1. Where the decree is a nullity. The objection of the judgment-debtor that the decree is a nullity because it was passed against a dead person, without bringing his legal representative on the record is an objection which can be entertained by the executing court. In such a case if the objection Is proved there is no executable decree all.
  2. Where the decree is ambiguous, i.e., a decree instead of meaning one thing may mean two or more different things. In such a case it is the duty of the executing court to go behind the decree and seek to ascertain from the judgment and pleading the true implication of the decree. This is necessary to enable the executing court to execute the decree.
  3. Where the decree has been made by a court without jurisdiction, i.e., in respect of territorial or pecuniary jurisdiction or in respect of the judgment-debtor’s person. An objection based on the ground of jurisdiction can be entertained by the executing court for if the decree has been passed without jurisdiction by a court, there is no executable decree.

The following questions are to be decided by the executing court as provided in Section 47 and not by suit:

  1. All question 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. Under section 47 CPC, the court is to decide all questions relating to the
    1. execution of the decree,
    2. discharge of the decree; and
    3. satisfaction of the decree.
      Such satisfaction as to execution, discharge and satisfaction is a question of fact. The executing court is required to go into the merits of the matter and decide such dispute in a Judicial manner by allowing the parties to lead evidence.
  2. 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.

Explanation provides that for the purposes of section 47, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.

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1)
see Rameshwar Dass Gupta v. State of U.P. and Another, (1996) 5 SCC 728=JT 1996 (7) 657, S. Bhaskaran vs Sebastian (Dead) By Lrs. And Ors. on 13 September, 2019

Created on 2021/03/15 16:02 by LawPage • Last modified on 2021/04/09 22:10 (external edit)