Section 38 of the CIVIL PROCEDURE CODE provides, a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The court which passed the decree has been defined in Section 37. Transfer of decree to another court for its execution has been provided for in Section 39. Section 40 provides for transfer of decree to a court in another State. Section 42 lays down that the court to which a decree is transferred for execution shall have the same powers in executing that decree as if the decree was passed by itself. These provisions including Section 37 thus clearly speak of the powers and jurisdiction of the court executing the decree.
. Section 47 is the only section that deals with the jurisdiction of an executing court. It is confined to determining all questions arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree.
Section 47 provides that the question relating to the execution, discharge or satisfaction of the decrees shall be determined by the court executing the decree, it clearly confers a specific jurisdiction for the determination of those questions on the executing court.
Section 47, gives full jurisdiction and power to the executing court to decide all questions relating to execution, discharge and satisfaction of the decree. Order XXI Rule 3, however, places a restraint on the exercise of that power by providing that the executing court shall not recognize or look into any uncertified payment of money or any adjustment of decree. If any such adjustment or payment is pleaded by the judgment- debtor before the executing court, the latter, in view of the legislative mandate, has to ignore it if it has not been certified or recorded by the court. (Sultana Begum vs Prem Chand Jain on 10 December, 1996 SC )
A Bench of five Judges of the Patna High Court in Baijnath Prasad Sah v. Ramphal Sahni. (AIR 1962 Pat 72) (FB) had expressed the view. Their Lordships held that : --
"The doctrine of res judicata is very much wider in scope than Section 11. It applies to execution proceedings. If a party takes an objection at a certain stage of a proceeding, and has not taken another objection which he might and ought to have taken at the same stage, it must be deemed that the Court has adjudicated upon the other objection also and has held against him. This principle of constructive res judicata has been extended further. If a party has knowledge of a proceeding, and having had an opportunity when he might and ought to have raised an objection, he does not do so, he cannot be allowed to raise that objection subsequently, if the Court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against him."
This view was approved In a later Full Bench decision of that Court in Sarjug Singh v. Basisth Singh f (1968} ILR 47 Pat 178) = (AIR 1970 Pat 237) (FB).
The same view was expressed by the Gujarat High Court in Ganchi Laxmichand Ambaram v. Tulsidas Madhav Das (AIR 1963 Guj. 1), where Bhag-wati, J. (as he then was) observed :--
"If the order under Order XXI, Rule 23, can operate as res judicata in regard to the contentions urged at the hearing of the notice under Order XXI, Rule 22, that order must equally operate as constructive res judicata in regard to the contentions which might and ought to have been urged against the execution of the decree in opposition to the notice under Order XXI, Rule 22. Equally must the order under Order XXI, Rule 23 operate as constructive res judicata if the person against whom the decree is sought to be executed did not appear in answer to the notice under Order XXI, Rule 22 and the order directing the decree to be executed was, therefore, made by the Court. In such a case all contentions which might and ought to have been urged by such person showing cause why the decree should not be executed would be barred by the principle of constructive res judicata and it would not be open to such person to raise those contentions at any subsequent stage of the execution, proceedings."
In AIR 1951 Assam 75 (Ail-muddin v. Budheswar Sarma), a Bench of Assam High Court held that where the judgment-debtor fails to appear in response to a notice under Order 21. Rule 22 and the executing Court orders execution to proceed, the judgment-debtor appearing in response to a notice for settlement of the terms of the sale of the property cannot object to the execution of the decree on the ground that the previous execution application being time barred, the present application was liable to be dimissed.
A Full Bench decision in Jagannath Ramanuj Raj Deb v. Sri. Lakshmi Narayan Tripathy (AIR 1960 Orissa 197 F. B.) held :--
"Section 11, C.P.C, is not exhaustive on the question of res judicata and its principle applies to execution proceedings also."
"Thus, an objection as to jurisdiction of executing Court raised and finally decided in a prior execution would be barred by res judicata in subsequent execution irrespective of whether the decision was erroneous in law or not."
"So also, an objection that the decree is not executable or is barred by limitation, which ought to have been raised but not raised in prior execution, will be barred by the principle of constructive res judicata."
Later decisions reported In AIR 1965 Orissa 2 Sadhu Charan Patri v. Sudarshan Patri, AIR 1969 Orissa. 147 Pannalal Sowcar v. Appalabhukatala Sanyasayya; and (1968) 34 Cut LT 758 = (AIR 1968 Orissa 183) Niranjan Das v. Liquidator, Puri Bank, Ltd have adopted the same view. Although AIR 1967 Orissa 38 Ramachandra Nahaka v. Bharat Rana was a case where a prior application filed under Section 47, C.P.C. read with Section 151, was dismissed for default of the petitioner in presence of the opposite party, it was held that subsequent petition almost on identical terms submitted by him would be hit by constructive res judicata. The learned Chief Justice in deciding this case followed the earlier Full Bench decision in AIR 1960 Orissa 197.
The High Courts of Allahabad and Bombay however, - appear to have taken a slightly different view of the questions at issue. The facts in AIR 1936 All. 21 (FB) Genda Lal V. Hazari Lalwhich was decided by a Full Bench are these : A money decree was passed on 12th March. 1928. On 29th November, 1932, the decree-holders filed an application in Court certifying the receipt of Rs. 50/- on llth November, 1930. On the 15th February 1933, the first application for execution was filed and it was stated in that application that Rs. 50/- had been received on llth November, 1930. There was a further allegation that the judgment-debtor had given a slip which however was lost. A notice under Order, 21, Rule 22, C.P.C. was issued fixing 6th March, 1933. The judgment-debtor did not attend Court on that day. and as prayed for by the decree-holders, a warrant of arrest was issued against the judgment-debtor who was arrested and produced in Court on 23rd March. 1933. On that day he made an objection on the ground that he had not made any payment of Rs. 50/- on llth November, 1930 and therefore the execution application was barred by limitation.
The lower Court dismissed the objection as barred by res judicata. The Full Bench, however, held with reference to the facts of that case that the mere fact that the judgment-debtor did not appear in response to the notice under Order 21, Rule 22, C.P.C. did not imply that he admitted that the application was in time, when on the face of it it was barred by limitation. The application was barred by time and the Court ought not to have Issued any notice at all. In those circumstances, therefore, the Full Bench held that there was nothing in law to prevent the executing Court entertaining the judgment-debtor's plea of limitation at any time during pendency of the application for execution. Sulaiman, C. J. with whom Bennet, J. agreed summarised his conclusions thus :--
"(1) Where there has been an express adjudication by the Court in the presence of parties, then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding, or in a subsequent execution proceeding.
(2) Where an objection is taken but is dismissed or struck off, even though not on the merits and the application for execution becomes fructuous, the judgment-debtor is debarred from raising the question of the invalidity of that application.
(3) Where an objecton to execution is taken, but it not dismissed on the merits or is dismissed for default and the application for execution does not become fructuous, the judgment-debtor is not debarred from subsequently raising the question that that application was not within limitation.
(4) Where no objection to the execution is taken but application becomes partly or wholly fructuous and such fructification necessarily involves the assumption that the application was made within limitation, then after such fructification the judgment-debtor is debarred by the principle of res judicata from raising the question that that application was not within limitation.
(5) Where no objection is taken but the application for execution does not fructify, the judgment-debtor is not debarred by the principle of res judicata from raising the question of limitation later."
Allahabad High Court, Maharaj Kumar Mahmud Hasan Khan vs Moti Lal Banker on 7 July, 1960 Equivalent citations: AIR 1961 All 1 An agreement or compromise, which is an act of the parties, is not a formal determination by the court of liability of one party to the other. A compromise may give rise to a formal determination, e.g. a decree, but is note itself a decree and cannot be executed. Even in a suit, in which parties are allowed to compromise, the compromise itself is not a decree but Ss to be followed by a decree incorporating the liability, agreed to by them. The determination of a liability, when there is a compromise in a suit, may appear to be a mere formal matter but is not so because the court has to determine whether the suit has been adjusted at all by the compromise and whether it is lawful or not; It is only when it is satisfied about these matters that it will hold that the liability of a party is that accepted by him in the compromise and will pass a decree embodying it.
No such jurisdiction has been conferred upon, an executing court. Not only can there be nothing like a compromise in execution proceedings (unless the compromise has the effect of adjustment of the decree); but also an executing court has been given no jurisdiction to decide whether the compromise is lawful or not and to determine the liability arising from it. Not only has no power been conferred upon it to vary the terms of the decree already passed or to substitute in its, place another decree embodying the compromise but also no power has been conferred upon it to specifically enforce the compromise, even without doing so, In the case of Oudh Commercial Bank Ltd. v. Bind Basni Kuer, 66 Ind App 84: (AIR 1939 PC 80) Their Lordships made it clear if an executing court acting under Section 47 finds that the effect of a compromise was to discharge the decree forthwith, it would have no jurisdiction to enforce it in execution proceedings but would leave the decree-holder to bring a separate suit upon the contract.
Davis J. C. and Lobo A.J.C. in Ramibai v. Rewachand, AIR 1937 Sind 229; at page 230 they observed:
"The adjustment of & decree ....means the extinguishing of a decree ...... it is to all intents and purposes executed and no question of the execution of the adjusted decree is possible. The wording of Order 21, Rule 2, Civil P. C., appears to us to imply a finality which excludes any future application in execution to the Court."
A Full Bench of this Court consisting of Sulaiman, Mukerji and Boys JJ., following the cases of Lodd Govindoss, AIR 1916 Mad 604 and Azizur Rahman, AIR 1928 Cal 527, said in Gobardhan Dass v. Dau Dayal, AIR 1932 All 273 that an adjustment must "be a transaction which extinguishes the decree as such in whole or in part and results in its total or partial satisfaction", (280). Though this case has been overruled by the Privy Council, it has not overruled this view. An adjustment of a decree thus results in its being rendered in-executable and if it is still put into execution, the judgment-debtor has a right to object to the execution and the executing court is bound by Section 47 to decide the objection.
Sub-rule (3), however, lays down, that any adjustment which has not been certified or recorded cannot be recognised by the executing court. The only purpose for which an adjustment or satisfaction of a decree can be recognized by the executing court is that of striking off the execution. Thus it is for the judgment-debtor to avail himself of the plea of adjustment or satisfaction and not for the decree-holder. It would be for the judgment-debtor to plead that the decree has been adjusted or satisfied; such a plea is not expected from the decree-holder because the plea in effect means that his execution application should be dismissed. It follows that if a decree-holder claims any benefit or advantage out of a transaction, it may be anything but is not an adjustment or satisfaction within the meaning of Rule 2. This is borne out by observations in some of the cases mentioned above.
COMPROMISE AFTER THE DECREE:
Section 47 is the only section that deals with the jurisdiction of an executing court. It is confined to determining all questions arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree. It enjoins that all these questions shall be determined by the executing court and not by a separate suit. All other questions can be determined by a separate suit. Any question that does not relate to the execution, discharge or satisfaction of the decree is thus not within the jurisdiction of the executing court. If there is a compromise after the passing of a decree by which its terms are varied, any question relating to the execution, discharge or satisfaction of the compromise cannot be said to be a question relating to the execution etc. of the decree.
The compromise cannot be treated as the decree. If either party seeks to specifically enforce any term of the compromise, not only would it not be a case of executing the decree but also any question relating to the execution etc. of the compromise would not fall within the scope of Section 47 and cannot be determined by the executing court. If it cannot determine any question relating to the execution etc. of the compromise it means that it cannot execute the compromise. It is all the time concerned with the decree, whether in respect of its execution or in respect of its discharge or satisfaction. If a compromise that has the effect of discharging or satisfying it or preventing its execution is brought to its notice, it will certainly be bound to consider it, but only for the purpose of seeing whether the decree should be executed or not.
The parties are not forbidden to compromise after the passing of a decree; they are free to do so, but only to the extent that the compromise is in respect of the mode of execution of the decree or amounts to an adjustment or satisfaction within the meaning of Order 21, Rule 2, so as to prevent the execution of the decree. If the decree has not been discharged or satisfied by adjustment or otherwise, it would be bound to be executed aS the instance of its holder. If the judgment-debtor objects to the execution on the ground of its being discharged or satisfied by adjustment or otherwise the executing Court will decide the objection and will refuse to execute the decree if the objection is upheld.
Allahabad High Court Maharaj Kumar Mahmud Hasan Khan vs Moti Lal Banker on 7 July, 1960 Equivalent citations: AIR 1961 All 1
Supreme Court of India
Lakshmi Narayanan vs S.S.Pandian on 4 September, 2000
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