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. (S. 47).
For the purpose of S. 47, a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed are parties to the suit.
For the purposes of S. 47 a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is so passed; and all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of S. 47.
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ADVERTISEMENTS:
Under Section 47 the question whether a certain person is a representative of one of the parties to the execution case or not is a question which has to be decided by the executing court and such a decision is appealable under the provisions of the Code. (N.E. Engineering Co. v. Birmo Devi, 1961 A.L.D. 669).
This section has been enacted for the beneficial purpose of checking needless litigation. It provides a cheap and expeditious remedy by empowering the court executing a decree to determine all questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree.
Two things are to be noted. The questions in respect of which a separate suit is barred must be questions relating to the execution, discharge or satisfaction of the decree and the parties between whom the question arises must be the parties to the suit in which the decree was passed, or their representatives.
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Thus, when a decree-holder takes in execution a property not included in the decree, the judgment-debtor has to proceed by an application under Section 47 of the Code for recovery of such property and a separate suit for that purpose will not lie.
If, however, a judgment-debtor or his legal representative objects to the execution of a decree on the ground that the decree is not valid, the question as to the validity of the decree is not one relating to the execution, discharge or satisfaction of the decree and cannot, therefore, be tried in execution proceedings under Section 47. Such a question can only be tried in a regular suit brought for the purpose.
The rule is that the executing court cannot question the validity of a decree. All that it has to do is to take the decree as it stands. It has no power to go behind it.
Where the court is inherently lacking in jurisdiction the plea as to jurisdiction may be raised at any stage, and even in execution proceedings and even if it was not raised in the trial court. (Chandrika Misir v. Bhaiyalal, A I.R. 1973 S.C. 2391).