Excelsior Correspondent
JAMMU, Apr 17: The High Court of Jammu & Kashmir and Ladakh has held that proceeding with execution by taking coercive measures during the pendency of an application under Section 47 of the Code of Civil Procedure (CPC) is clearly contrary to law and amounts to material irregularity in the exercise of jurisdiction, setting aside levy warrants issued against a judgment debtor.
In a petition filed by Feroz Ahmad Dar, the bench of Justice Wasim Sadiq Nargal was examining the legality and propriety of an order dated 23.01.2026 passed by the Executing Court (2nd Additional District Judge, Srinagar), whereby levy warrants had been issued in execution of an ex parte money decree dated 02.11.2023.
The petitioner had invoked the supervisory jurisdiction under Article 227 of the Constitution of India, contending that the Executing Court acted with material irregularity and in excess of jurisdiction by proceeding with coercive steps without first deciding his objections under Section 47 CPC.
The High Court observed that an application under Section 47 CPC strikes at the very root of the decree and its execution and mandates that all questions arising between the parties 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.
Emphasizing the statutory duty, the High Court held that the executing court is bound to adjudicate upon such objections before proceeding further in the matter and that it is not permissible to brush aside a pending application and carry forward execution.
A bare perusal of record revealed that despite the application under Section 47 CPC being filed on 29.05.2024 and remaining pending, the Executing Court issued levy warrants on 23.01.2026 without returning any finding thereon.
The High Court noted that such action, especially when the challenge involved lack of jurisdiction and alleged that the decree was a nullity, was not in consonance with the scheme of Section 47 CPC and renders the remedy provided thereunder ineffective.
Allowing the petition, the High Court ruled that the impugned order cannot be sustained and is liable to be set aside. It directed the Executing Court to decide the Section 47 application at the first instance, on its own merits and strictly in accordance with law expeditiously, after affording an opportunity of hearing to both sides.
Importantly, the High Court ordered that till such time said application is decided, no coercive steps shall be taken against the petitioner in the execution proceedings.
The petition was accordingly disposed of along with connected applications.
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