Decree-Holder's Challenge To Post-Execution Section 47 Application Is Held Unmaintainable; Appeal Allowed

A bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan heard an appeal by the decree-holder against a High Court order upholding a trial court's allowance of an application under Section 47 of the Code of Civil Procedure (CPC) that sought to set aside delivery of possession allegedly effected in respect of a wrong plot. The respondents did not appear and the Court heard the appellants' counsel.

The Supreme Court allowed the civil appeal, set aside the orders dated 24.01.2007 of the Civil Judge (Senior Division), Anandpur in CMA No.40/2006 arising out of Execution Proceeding No.8/2000 and the impugned order dated 06.04.2010 of the High Court in W.P.(C) No.1888/2007. The Court held that an application under Section 47 CPC must be filed and determined during the pendency of execution proceedings and not after the executing court had disposed of the execution petition on satisfaction; consequently the respondents’ post-execution application was not maintainable. The Court also found that the State, having earlier indicated no objection to the delivery of possession, was estopped from challenging it later. The Court, in its reasoning, observed: "On a reading of Section 47 of the CPC it becomes evident that 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. This means that the said questions must be determined during the process of the execution of the decree it is during the pendency of the execution and proceeding and not subsequently when the execution proceeding is closed and the decree has been executed to the satisfaction of the executing court. In the instant case there was no such application filed by the respondents herein during the pendency of the execution proceedings by the appellant herein. It is only thereafter when the execution proceeding was concluded that the application under Section 47 of the CPC was filed."

Background

The dispute arose from T.S. No.16/1983, which the trial court dismissed by judgment and decree dated 17.01.1994. On appeal (T.A. No.11/1994) the first appellate court partly allowed the appeal by judgment dated 08.10.1999, declaring the plaintiff’s right, title and interest over Suit Hal Plot No.53 in Khata No.19 measuring 0.08 decimals while dismissing other reliefs relating to Plot No.54. Execution Petition No.8/2000 followed and, on the basis of the civil court commissioner's report and bailiff's report, the executing court ordered delivery of possession to the decree-holder and disposed of the execution petition on 26.08.2006 as "satisfied."

Thereafter, in November 2006, the respondents filed an application under Section 47 CPC before the executing court, alleging wrongful delivery of a different plot (that Plot No.54 was handed over instead of Plot No.53) and sought setting aside of the delivery and direction for re-demarcation by the settlement officer. The Civil Judge allowed the Section 47 application on 24.01.2007, rejecting the decree-holder’s preliminary objections. The State had earlier filed a memo on record stating, in substance, that "On perusal of the Report of Civil Court Commissioner, it is observed that the delivery of possession was effected in presence of the Office Amin Sri Bipin Bihari Bal ... No report of any anomaly has been reported as yet from the Tahsildar, touching the sanctity of delivery of possession, for which no objection has been filed against the same. Hence necessary orders may be passed without prejudice to the interests of State." The decree-holder challenged the trial court order by Writ Petition No.1888/2007 before the High Court, which dismissed the petition. The decree-holder then moved this Court.

The Supreme Court examined Section 47 CPC and the chronology of events and concluded that Section 47 questions must be raised during execution and determined by the executing court before the execution proceedings are concluded. The Court further noted that the respondents could have assailed the execution order but did not do so. The Court also held that the respondent-State was estopped from later contesting the delivery after having, by memo, indicated no objection to the commissioner’s report and delivery of possession. Consequently, the appeal was allowed, the impugned orders were set aside and no costs were awarded. The Court also allowed an interlocutory application to delete a deceased appellant from the array and directed filing of an amended memo of parties.

Case Details: Case No.: Civil Appeal No(s).1920 of 2011 (2026 INSC 91) Case Title: ANANDA CHANDRA PANDA (DEAD) THROUGH LRS. VERSUS THE COLLECTOR, KEONJHAR & ANOTHER Appearances: For the Petitioner(s): Mr. V. K. Monga, AOR; Mr. Sanjay K. Das, Advocate; Mr. Swetaketu Mishra, Advocate; Ms. Gouri Monga, Advocate For the Respondent(s): No representation recorded