Section 47 CPC cannot challenge the underlying suit’s maintainability in execution proceedings.

The petitioner, a third party to the partition suit in O.S. No. 473 of 1994, claimed title to the decree property through a settlement deed from his father.

His father had purchased the property in 1999 from Selvaraj, who had purchased it from Kandasamy Gounder on 24 October 1994, before the partition suit was filed on 22 December 1994.

The petitioner sought relief under Section 47 CPC, contending that the suit could not have proceeded without a challenge to the earlier alienation.

The executing court dismissed his application after enquiry.

The petitioner also challenged the dismissal of applications seeking reopening and issuance of summons.

The respondents relied on the petitioner’s evidence that his father had previously filed a Section 47 application, which was dismissed and not restored, and that the settlement deed in the petitioner’s favour was executed while that application was pending.

1. Whether the petitioner could use a Section 47 CPC application in execution proceedings to challenge the maintainability of the partition suit on the ground that a pre-suit alienation had not been set aside.

2. Whether the executing court erred in dismissing the petitioner’s Section 47 application, given the prior application by his father and the petitioner’s non-disclosure of it.

Section 47 CPC empowers the executing court to determine questions between the parties to the suit, or their representatives, relating to execution, discharge or satisfaction of the decree; it does not provide a route to set aside the decree or raise issues that should have been pursued in the suit or an appeal.

Order XXI Rules 97, 98 and 101 CPC provide for adjudication of claims and objections arising from resistance or obstruction to execution.

The Court acknowledged the principles in Jini Dhanrajgir v. Shibu Mathew, (2023) 20 SCC 76, concerning adjudication of execution-related questions and obstruction claims, but found them inapplicable to convert the petitioner’s challenge into a permissible Section 47 inquiry.

The partition-suit authorities cited by the petitioner were decisions in second appeals and did not permit the issue of an unchallenged pre-suit alienation to be raised for the first time in execution proceedings.

The Court held that the petitioner’s contention—that the pre-suit sale to Selvaraj required a declaration before the partition suit could proceed—concerned the merits and maintainability of the suit and should have been raised at trial or on appeal, not in execution under Section 47 CPC.

Although the petitioner relied on decisions concerning prior alienations, those decisions arose in second appeals and did not support reopening the issue in execution.

The Court also noted that the petitioner admitted his father’s earlier Section 47 application had been dismissed and that the settlement in his favour was made while that application was pending.

The petitioner’s failure to disclose those material facts, together with the absence of any restoration of his father’s application, supported dismissal.

Finally, the executing court could not grant the petitioner’s requested relief of setting aside the suit decree.

It dismissed all three civil revision petitions, made no order as to costs, and closed the connected miscellaneous petition.