Executing Court Cannot Issue Levy Warrants While S.47 CPC Challenge To Decree Remains Pending: J&K&L High Court
The Jammu & Kashmir and Ladakh High Court has held that an Executing Court cannot proceed with coercive steps such as issuing levy warrants while an application under Section 47 of the Code of Civil Procedure, 1908, challenging the executability of a decree, remains pending.
The Court clarified that the Executing Court is under a mandatory duty to first adjudicate such objections, particularly those questioning the jurisdiction of the decree, before taking any further steps in execution. Any other course would render the remedy under Section 47 CPC illusory, it added.
These observations came while adjudicating a petition filed under Article 227 of the Constitution of India by a judgment-debtor challenging the order passed by the 2nd Additional District Judge, Srinagar (Executing Court), whereby levy warrants were issued in execution of an ex parte money decree, without first deciding the petitioner's pending objection under Section 47 CPC.
The bench of Justice Wasim Sadiq Nargal observed, “
“…. When a decree is challenged under Section 47 CPC, such challenge is essentially directed against the execution of the decree itself. Having said that, the executing court is bound to adjudicate upon such objections before proceeding further in the matter. It is not permissible that an application under Section 47 CPC, pending consideration, is brushed aside and execution is carried forward. Any such course would render the remedy under Section 47 CPC illusory.”
Previously, the respondent-decree holder had instituted a civil suit against the petitioner, which culminated in an ex parte money decree. Pursuant thereto, the decree holder initiated execution proceedings before the Executing Court. Upon appearance, the petitioner filed an application under Section 47 CPC questioning the execution of the decree on the ground that the same was without jurisdiction and thus void ab initio.
Subsequently the decree holder filed objections but due to the transfer of the then Presiding Officer, the application could not be decided. Thereafter, without adjudicating the said application, the Executing Court issued levy warrants against the petitioner.
Aggrieved thereof, the petitioner approached the Court, inter alia, on the ground that the Executing Court has acted with material irregularity and in excess of jurisdiction by proceeding with coercive steps in execution without first deciding the objection as to execution of the decree.
Court's Observation:
The Court noted that the petitioner had specifically pleaded that the decree sought to be executed was a nullity on account of lack of inherent jurisdiction. The Court held that an application under Section 47 CPC strikes at the very root of the decree and its execution, and the Executing Court is under a mandatory duty to decide all questions relating to jurisdiction before proceeding further with execution.
“… A plain reading of Section 47 of the Code of Civil Procedure, 1908 would show that basic purpose of the said provision is to determine any disputes/issues that arise out of the execution, discharge, or satisfaction of a decree. Therefore, when a decree is challenged under Section 47 CPC, such challenge is essentially directed against the execution of the decree itself”, Justice Nargal recorded.
The Court observed that the pendency of such an application, particularly when it involves a jurisdictional challenge, casts a duty upon the Executing Court to first determine the same. Proceeding with coercive steps in execution in the face of a pending challenge was not in consonance with the scheme of Section 47 CPC and rendered the remedy provided thereunder ineffective, the court maintained.
The Court found that the impugned order dated January 23, 2026 did not reflect any consideration, much less adjudication, of the objections raised under Section 47 CPC. The approach adopted by the Executing Court was held to be legally unsustainable and amounted to material irregularity in the exercise of jurisdiction, the court said and added,
“… Proceeding with coercive steps in execution in the face of a pending challenge, particularly one that goes to the root of the decree, is not in consonance with the scheme of Section 47 CPC and renders the remedy provided thereunder ineffective”
In consonance with these observations the Court set aside the impugned order and directed the Executing Court to decide the application filed under Section 47 CPC at the first instance, on its own merits and strictly in accordance with law, after affording an opportunity of hearing to both sides.
The Court further directed that no coercive steps shall be taken against the petitioner in the execution proceedings until the said application is decided.
Appearances:
Petitioner:Advocate Mr. Owais Sareer
Case Title: Feroz Ahmad Dar v. M/s Himalayan Motors
Citation: 2026 LiveLaw (JKL)