Question: A court executing a decree cannot go behind the decree. Explain. Are there any exceptions to this rule? Find the answer to the mains question only on Legal Bites. [A court executing a decree cannot go behind the decree. Explain. Are there any exceptions to this rule?] Answer Section 42 of The Civil Procedure Code, 1908 expressly… Read More »

Question: A court executing a decree cannot go behind the decree. Explain. Are there any exceptions to this rule? Find the answer to the mains question only on Legal Bites. [A court executing a decree cannot go behind the decree. Explain. Are there any exceptions to this rule?] Answer Section 42 of The Civil Procedure Code, 1908 expressly confers upon the court executing a decree sent to it the same powers as if it had been passed by itself. However, it does not imply an executing court...

Question: A court executing a decree cannot go behind the decree. Explain. Are there any exceptions to this rule?

Find the answer to the mains question only on Legal Bites. [A court executing a decree cannot go behind the decree. Explain. Are there any exceptions to this rule?]

Answer

Section 42 of The Civil Procedure Code, 1908 expressly confers upon the court executing a decree sent to it the same powers as if it had been passed by itself.

However, it does not imply an executing court cannot go behind the decree. It must take the decree as it stands and execute it according to its terms. It has no power to question its legality or correctness.

This is based on the principle that a proceeding to enforce a judgment is collateral to the judgment and therefore, no inquiry into its regularity or correctness can be permitted in such a proceeding.

There are three cases wherein the executing court can go behind the decree. They are as under

  1. Where a decree is a nullity – In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its invalidity could be set up wherever and whenever it is sought to be enforced, whether in execution or in collateral proceedings, Kiran Singh v. Chaman Paswan, [AIR 1954 SC 340]. In such a case, there is no question of going behind the decree, for really in the eye of law there is no decree at all. Inherent lack of jurisdiction, however, must appear on the face of the record.
  2. Where the decree is ambiguous – 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 plead the true implication of the decree. This is necessary to enable the executing court to execute the decree. In the case of Biswanath v. Uttar Bewa and ors, The Orissa High Court has held that ordinarily the executive court cannot go behind the decree, but it is within the competence to interpret the decree sought to be executed and for doing so it can refer to reliefs sought in the plaint to ascertain the true import of the decree.
  3. Change of circumstances – An executing court can go into the question of the executability or otherwise of the decree and consider whether, by any subsequent developments, the decree has ceased to be executable according to its terms.

Important Mains Questions Series for Judiciary, APO & University Exams

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Updated On 2022-02-10T10:13:11+05:30
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