The High Court of Himachal Pradesh recently comprising of a bench of Justice Jyotsna Rewal noted that the court executing section 47 of Code of Civil Procedure is required to look into the questions relating to the execution, discharge or satisfaction of the decree.
The Court further noted that such questions are to be adjudicated by the executing court and not by a separate suit. (Sh. Parveen Kumar & ors. Versus Sh. Choudary Ram & ors)
Facts of the Case
The plaintiffs asserted themselves to be owners along with other co-sharers of the suit land comprised in Khata No. 39 min, Khatauni No. 81, Khasra No. 78, measuring 0-00-55 HM, situated in village Tutwan, Sub Tehsil Fatehpur, District Kangra, on the basis of jamabandi for the year 1989-90. The allegations in the plaint were that the defendants were neither the owners nor the tenants over the suit land. Yet they had forcibly taken over the possession of the suit land in an illegal and unlawful manner. Therefore, decree for vacant possession of the suit land was prayed for. Learned trial Court decreed the suit of the plaintiffs ex-parte against the defendants for vacant possession of suit land. Aggrieved against this order passed by the learned executing court on 29.8.2014, the decree holders have preferred instant petition under Article 227 of the Constitution of India.
Contention of the Parties
Learned counsel for the petitioners/decree holders submitted that learned Executing Court erred in not delivering actual possession of the suit land in favour of the decree holders. Learned counsel contended that there was no document on record to show that the judgment debtors had purchased any portion of land in the suit land. He further submitted that in any case even if it is to be presumed that the part of suit land was sold to the judgment debtors-original defendants, then also it was sold much after passing of the judgment and decree sought to be executed. The intention of the judgment debtors and their predecessors was only to deprive the decree holders from getting the possession of the suit land. In such circumstances, the objections filed by the judgment debtors were not legally maintainable and were liable to be rejected as the executing court could not have gone behind the decree.
Learned counsel for the appearing respondents/judgment debtors supported the impugned order.
Courts Observation & Judgment
The court observed, “There is no dispute qua the settled legal position that the executing court cannot go behind the decree and has to execute it as its stands. However, in terms of Section 47 of Code of Civil Procedure the executing court is required to look into the questions relating to the execution, discharge or satisfaction of the decree. Such questions are to be adjudicated by the executing court and not by a separate suit.”
The court dismissing the petition stated, “the judgment debtors/objectors have proved on record that they had become co-sharers of the suit land subsequent to passing of the decree sought to be executed. The suit land is now jointly owned by them along with various co sharers. In such situation, their possession over the suit land cannot be treated as illegal and, therefore, they cannot be ousted from such possession. The judgment debtors/objectors have purchased shares in the suit land from the other co-sharers. Their possession of the suit land is now in a capacity different from the one in which they had suffered the decree for possession.”
Read Judgment;
SOURCE ;.latestlaws.com
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