Judgment ( 1. ) BEING aggrieved by the order dated 9-8-10 passed by IX Additional District Judge, Indore in Execution Case No. 35-A/2000/2007 whereby application filed by petitioner under Section 47, CPC was dismissed, present petition has been filed. ( 2. ) SHORT facts of the case are that the petitioner is a Company having its registered Office at Mumbai and is in the trade of chemicals and pharmaceutical. A suit was filed by the petitioner against the respondent which was registered as Civil Suit No. 35-A/2000 in the Court of XVI Additional District Judge, Indore wherein judgment and decree was passed on 20-10-2000 in favour of petitioner in following terms :- (i) Respondent is manufacturing and selling ZEECOF. The trade of respondent is illegal because ZEECOF manufactured by the petitioner is having a registered trademark. (ii) Respondent is restrained from manufacturing, store and distributing of ZEECOF, which is a Syrup identically deceptive to the ZEECOF Syrup manufactured by the petitioner for which petitioner is possessing registered trademark. (iii) Petitioner is entitled for compensation of Rs. 10,000/- as token. After the judgment execution petition was filed by the petitioner wherein it was prayed that respondent be directed to pay the amount of compensation as awarded and the respondent be further restrained from manufacturing, storing and distribution of ZEECOF identically deceptive to the ZEECOF of the petitioner. Alongwith the execution petition an application was filed by the petitioner under Section 47, CPC wherein it was alleged that in spite of decree in favour of petitioner, respondent is manufacturing, storing and distributing ZEECOF, which is identically deceptive and in proof of it a bottle was submitted to demonstrate that identically deceptive manufacturing is being done by the respondent in August, 2005. In the application it was alleged that respondent also applied before the Registrar Trademark on 15-6-05 for registration of ZEECOF. It was alleged that upon objection filed by petitioner vide application dated 9-1-08 respondent withdrawn its application. In the application filed under Section 47, CPC, it was prayed by the petitioner that Commissioner be appointed for physical verification of the Unit of the respondent, who should be directed to submit the report after inspection. The application was opposed by the respondent. After hearing the parties learned Executing Court dismissed the application filed by the petitioner by the impugned order, against which present petition has been filed. ( 3. The application was opposed by the respondent. After hearing the parties learned Executing Court dismissed the application filed by the petitioner by the impugned order, against which present petition has been filed. ( 3. ) LEARNED Counsel for the petitioner argued at length and submits that the impugned order passed by the learned Executing Court is illegal, incorrect and deserves to be set aside. It is submitted that the learned Court below committed error in holding that the application filed by the petitioner is not maintainable. It is submitted that the findings of the learned Executing Court that it is not proved that petitioner is manufacturing and selling ZEECOF in India. It is submitted that in the facts and circumstances of the case application filed by the petitioner be allowed and the impugned order passed by the learned Court below be set aside. ( 4. ) LEARNED Counsel for respondent submits that the decree was declaratory in nature. It is submitted that no execution could have been filed by the petitioner for such a decree. It is submitted that if the petitioner was of the view that respondent is manufacturing ZEECOF in violation of the decree passed in favour of petitioner, then only the remedy available to the petitioner is to file separate suit and not execution petition. It is submitted that in the facts and circumstances of the case, no illegality has been committed by the learned Court below in passing the impugned order. It is submitted that the petition filed by the petitioner be dismissed. Relevant part of Section 47, CPC reads as under :- "Section 47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and 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." Rule 32 of Order 21 deals with decree for injunction, which reads as under :- "32. Decree for specific performance for restitution of conjugal rights, or for an injunction.- (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of this Court, by the detention in the civil prison of the directors or other principal officers thereof or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other persons appointed by the Court, at the cost of the judgment- debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree." ( 5. ) FROM perusal of the record, it is evident that alongwith the execution petition an application was filed by the petitioner wherein it was alleged by the petitioner that the respondent is manufacturing the ZEECOF Syrup, which is identical to the trademark of the petitioner. In the application, it was also alleged that the respondent moved an application for registration of trademark on 15-6-05 and upon objection filed by the petitioner respondent has withdrawn the application on 9-1-06. In reply to the application respondent has cleverly stated that respondent is not storing and distributing the Syrup in India and also not in Indore. However, it was not specifically denied by the respondent in reply that the respondent is not manufacturing the Syrup as complained by the petitioner. The reply is also not supported by affidavit. ( 6. ) SECTION 47 of CPC lays down that all questions arising between the parties to the suit, in which decree was passed and relating to the execution, discharge or satisfaction of the decree has to be determined by the Executing Court and not by separate suit. The objection raised by the petitioner is relating to the execution of decree which was passed in favour of petitioner, therefore, it is required to be decided in execution petition itself and for that no separate suit is required to be filed. The objection raised by the petitioner is relating to the execution of decree which was passed in favour of petitioner, therefore, it is required to be decided in execution petition itself and for that no separate suit is required to be filed. Similarly, since the decree was of permanent injunction in favour of petitioner, therefore, it was also required to be executed as per Order XXI Rule 32, CPC and the Court cannot go behind the decree. In the facts and circumstances of the case, learned Court below committed error in passing the impugned order which is not in accordance with law. In view of this petition filed by the petitioner is allowed. Impugned order passed by the learned Court below is set aside with a direction to the learned Trial Court to decide the application filed by petitioner and before deciding the application learned Court below shall direct the respondent to submit on affidavit that the respondent has not manufactured, stored and distributed nor manufacturing, storing and distributing the ZEECOF Syrup after passing of decree which is identically deceptive. After receipt of reply on affidavit and also after hearing the Counsel for both the parties if the Executing Court is of the view that for determination of controversy between the parties appointment of Commissioner is necessary, then the learned Court below shall appoint Commissioner for inspection of the premises of the respondent and also decide the execution filed by petitioner in accordance with law. With the aforesaid observations, petition stands disposed of. No order as to costs.