The object of section 47 CPC is to provide remedy to the parties in matters arising out of an execution of a decree.

 The object of section 47 CPC is to provide remedy to the parties in matters arising out of an execution of a decree. This section empowers the Executing Court to determine the questions relating to the execution, discharge or satisfaction of a decree and it barred a separate suit. The word “execution” means to carry out and perform and it derived from the word “execute” which means command. As is evident from the word “determine” the Executing Court possesses jurisdiction to finally dispose of all questions, arising out of execution, discharge or satisfaction of a decree and to grant a relief.

An Executing Court becomes functus officio once the decree is fully discharged. The term “discharge or satisfaction” has not been defined, and a flexible and liberal interpretation should be given to these words in keeping with the object behind section 47 CPC, however that words in their context would be limited to the matters arising after the passage of the decree and arising in course of or in connection with the execution of the decree. This provision is analogues to those of section 9 C.P.C. in so far as they confer jurisdiction to execute a decree. The section 47 C.P.C. does not bar the remedy but only regulates the forum for enforcement of rights in so far as it channelizes all matters relating to the execution, discharge or satisfaction of the decree to the Executing Court. Two conditions must be satisfied in order to invoke the provision of section 47 C.P.C., which are as follows:-

i) The question should have arisen between the parties to the suit in which the decree was passed, or their representatives.

ii) The question should relates to the execution, discharge or satisfaction of decree.

The term “parties to the suit” refers to those persons whose names are borne on the record of the suit as plaintiff and defendant. The term used ‘representative’ has a much wider connotation than the term ‘legal representative’ and means any representative in interest of a party to the suit by assignment etc. The Executing Court can investigate the matter by examining the record and providing opportunity to produce evidence. In this regard Order XXI Rules 97 to 103 of C.P.C. are relevant. Rule 97 CPC provides that where the execution of decree of possession is resisted or obstructed by any person, the decree holder may make an application to the court complaining of such resistance or obstruction. In such case the court shall fix a day for investigating the matter and shall summon the person who has put in resistance or obstruction. Rule 98 CPC provides that if the court is satisfied that the resistance or obstruction was occasional without any just course by the judgment debtor or by some other person, it shall direct that the applicant be put in possession of the property. It also provides some procedure for the execution of the decree by detention of such persons in the civil prison. Rule 99 CPC then says that the resistance or obstruction if occasioned by any person other than the judgment debtor, claiming in good faith to be in possession of the property, on his account or on account of some person other than the judgment debtor, it may make an order dismissing the application meaning thereby the application under Rule 97 CPC submitted by a decree holder. Rule 100 and 101 CPC deal with a case where the decree is executed and any person who is in possession of the property in his own right and is not bound by the decree, is dispossessed. Under rule 100 CPC such a person can apply to the court complaining of his dispossession. The rule further provides that in such contingency the court shall investigate the matter. Then follows Rule 101 CPC which states that where the court is satisfied that the applicant is in possession of the property on his own account, or on account of some person other than the judgment debtor, it shall direct that the applicant be put into possession of property. The Rule 103 CPC bars any separate suit in this regard and this provision follows the principle on which section 47 of the Code is based. This Rule has been substituted by the Law Reforms Ordinance XII of 1972. Before the amendment by the Ordinance (ibid) it provided that in case of decision of applications of the decree holder under Rule 97 CPC or of the person claiming to have been legally dispossessed of under Rule 101 CPC the aggrieved party shall have a right to file the separate suit for determination of the question involved therein in non-summary regular proceedings. Now all questions arising as to title, right or interest in, or in possession of immoveable property under Rule 97 CPC or Rule 100 CPC are to be decided by an Executing Court and not by a separate suit.

From bare perusing that rule it appears that all questions arising as to title, right or interest in, or possession of immovable property determined and adjudicated upon by the court in execution would not be mere in summary proceedings, but would be considered as trial of suit. Provisions of code relating to trial of suit such as framing of issues and providing opportunities to parties to lead documentary and oral evidence, would apply in such proceedings.

Section 47 of the Code of Civil Procedure, 1908 requires that pleas of the parties are to be ascertained and adjudicated upon by framing of issues and recording of evidence to substantial justice. An objection petition is akin to the suit and the Court executing the decree was saddled with the responsibility of framing the issues and recording evidence to resolve the controversy.

Undeniably with the acceptance of objection petition an order of final nature has been passed qua the petitioner without providing a fair opportunity of hearing violative to the fundamental right of fair trial and due process protected under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

Civil Revision No.269 of 2020.
Sardar Ali Vs. Abdul Ghafoor and others