ORDER :- Respondent No. 3 Bhola Shankar Garg, instituted a suit No. 313 of 1958 inter alia for possession over a piece of land against one Mohammad Suleman. The suit was decreed ex parte on 21st April, 1965. The ex parte decree was executed by respondent No.3 and possession was delivered to him in execution of that decree on 2nd June, 1965 and by an order dated 26th July, 1965 the execution was struck off in full satisfaction. An application was made for setting aside the ex parte decree by the defendant which was allowed on 14th Sept. 1965 and the ex parte decree was set aside. Subsequently the suit was contested by the defendant but was again decreed on 17th August, 1971. The appeal filed against that decree was dismissed on 14th August, 1972. A second appeal was thereafter filed in this Court which too was dismissed on 22nd February, 1980. Respondent No.3 thereafter made an application for execution of the decree dated 27th August, 1971 on 19th August, 1980 giving rise to execution case No. 108 of 1972. It is to be noted that during the Pendency of the suit Mohd. Suleman had died and his legal representatives including the present petitioner were substituted. On receipt of the notice of the execution application the petitioner filed an objection under S.47 of the Civil P. C. on three grounds : (i) Since Possession had already been delivered to respondent No. 3 on 2nd June, 1965 in execution of the ex parte decree dated 21st April, 1965 and the execution was struck off in full satisfaction on 26th July, 1965, the second application for execution was not maintainable, (ii) Smt. Amna Begum who was one of the daughters of Mohd. Suleman had not been substituted along with his other legal representatives consequent upon his death and, as such, the decree was not executable and (iii) There were certain constructions standing on the land in dispute and since no decree for demolition had either been prayed for or passed, possession over the land in dispute could not be delivered to respondent No. 3. 2. After hearing the parties the Munsif dismissed the objection filed by the petitioner on 2nd September, 1980 and repelled his contention in respect of all the three grounds. 2. After hearing the parties the Munsif dismissed the objection filed by the petitioner on 2nd September, 1980 and repelled his contention in respect of all the three grounds. The petitioner filed a revision against that order before the District Judge which was dismissed by the 3rd Additional District Judge; Bulandshahr, respondent No. 1 on 10th Nov., 1981, Aggrieved, he has filed this writ petition with a prayer to quash these two orders dated 2nd Sept., 1981 and 10th Nov., 1981, copies whereof have been filed as Annexures-4 and 5 to the writ petition. Those very three grounds on which the objection had been filed by the petitioner under S.47 of the Civil P. C. have been pressed before me. 3. Coming to the first ground namely, that since possession had already been delivered to respondent No. 3 on 2nd June, 1965 in execution of the ex parte decree dated 21st April, 1965 and the execution was struck off in full satisfaction on 26th July, 1965 the second application for execution was not maintainable, suffice it to point out that it is not the ex parte decree which was sought to be executed in Execution Case No. 108 of 1972. Counsel for the petitioner has placed reliance on certain decisions in which it has been held that once a decree had been executed to the satisfaction of the decree-holder a second application for execution of the same decree was, not maintainable. In one of the cases it was also held that even if in execution of a decree for possession, only symbolical possession was delivered but the decree-holder was satisfied with such delivery of possession and got his execution application struck off he could not subsequently file another execution application for delivery of actual possession. Since in my opinion all those cases are clearly distinguishable on the ground that in the instant case it is not the ex parte decree dated 21st April, 1965 which was sought to be executed in execution case No. 108 of 1972 but the decree passed after contest on 27th August, 1971 was sought to be executed in the aforesaid execution case, I do not find it necessary 16 give a recital of those cases. Suffice it to point out that no decision has been brought to my notice where on facts similar to the facts of the instant case it may have been held that a decree passed on merits for possession after contest was not executable simply because possession had already been delivered to the decree-holder in execution of an ex parte decree which was subsequently set aside. As already indicated above the crux of the matter in such a case is as to whether it is the same decree which was executed once is being executed again or it is a different decree. Once an ex parte decree has been set aside it becomes non est and it is only the subsequent decree passed after contest which is to be treated as decree in the suit and it is that decree alone which can be executed. 4. The case of respondent No. 3 before the Munsif, as is apparent from the order of the Munsif dated 2nd Sept., 1980 (Annexure-4 to the writ petition) was that consequent upon the ex parte decree being set aside he himself surrendered possession over the land in dispute in favour of the petitioner and it was in these circumstances that the decree for possession passed subsequently after contest on 27th August, 1971 had to be executed again for delivery of possession. This case seems to have been accepted by the Munsif in his order aforesaid. Counsel for the petitioner, however, urged that the petitioner had taken forcible possession over the land in dispute. In my opinion, it is not necessary to go into this question as to whether after the ex parte decree was set aside, possession was taken by the petitioner by force or it was surrendered by respondent No. 3. What was of importance was as to whether on the date when the decree for possession was passed on 27th August, 1971, the petitioner was or was not in possession. Since in either case he was in possession on that date and a decree for his dispossession was passed the manner in which he got possession on the ex parte decree being set aside was not material in Execution Case No. 108 of 1972. 5. Counsel for the petitioner also urged that forcible possession had indeed been taken back by the petitioner even before ex parte decree was actually set aside. 5. Counsel for the petitioner also urged that forcible possession had indeed been taken back by the petitioner even before ex parte decree was actually set aside. Nothing, however, on the record has been brought to my notice which may indicate that this was ever the case of the petitioner either before the Munsif or before respondent No. 1. An application has been filed on behalf of the petitioner today along with photostat copy of an objection filed by respondent No. 3 on 3rd Oct., 1972 in execution case No. 108 of 1972. After referring to the said objection it was urged that a perusal of the said objection indicated that possession had been taken back by the petitioner even before the ex parte decree was set aside. I have carefully gone through the objection and in my opinion there is no such admission by respondent No. 3 in the said objection. 6. In so far as the second ground is concerned namely, that the decree was not executable in as much as Smt. Amna Begum who was one of the daughters of Mohd. Suleman had not been substituted along with his other legal representatives consequent upon his death, it has been pointed out in the impugned orders that on an application being made by respondent No. 3 and after hearing the proposed legal representatives five legal representatives of Mohd. Suleman were substituted in the suit. It is further clear from the impugned orders that the five legal representatives who were sought to be substituted did not raise any objection at any earlier stage either in the suit or in the first appeal or even in the second appeal that the suit was not maintainable inasmuch as one of the legal representatives of Mohd. Suleman namely Smt. Amna Begum had not been substituted. The Munsif and the respondent No. 1 have taken the view that the decree could not be held to be inexecutable on this ground either. In my opinion, the view taken in this behalf in the impugned orders does not suffer either from any manifest error of law or error of jurisdiction and cannot be interfered with under Art.226 of the Constitution. 7. At this place reference may be made to a decision of the Supreme Court in Dolai Maliko v. Krushna Chandra, ( AIR 1967 SC 49 ). 7. At this place reference may be made to a decision of the Supreme Court in Dolai Maliko v. Krushna Chandra, ( AIR 1967 SC 49 ). In that case one of the appellants had died and on an application made in this behalf an order was passed directing the applicants to be impleaded as legal representatives of the deceased-appellant Subsequently it was asserted that since all the ligal representatives of the deceased-appellant had not been substituted, the appeal had abated. This plea was repelled by the Supreme Court and it was held that unless there is fraud or collusion or there are other circumstances which indicate trial there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings, there is no reason why the heirs who have applied for being brought on record could not be allowed to represent the entire estate including the heirs not brought on record. In my opinion, the law laid down by the Supreme Court in Dolai Malikos case (supra) squarely applies to the facts of the instant case. Here also it has never been the case of the petitioner that there was any fraud or collusion or that there was any other circumstance which indicated that there has not been a fair or real trial or that against Smt. Amna Begum the absent heir, there was a special case which was not and could not he tried in the proceedings. The submission that the execution application was not maintainable on the aforesaid ground cannot therefore be accepted. 8. In regard to the last ground namely that the execution of the decree for possession over the land in dispute was not maintainable inasmuch as there were certain constructions standing on the land in dispute and no decree for demolition had been passed, it has been held by respondent No. 1 that it was not open to the executing Court to go behind the decree and refuse execution on this ground. In my opinion, the view taken in respect of this ground also in the impugned orders does not suffer from any such error which may justify interference under Art.226 of the Constitution. In my opinion, the view taken in respect of this ground also in the impugned orders does not suffer from any such error which may justify interference under Art.226 of the Constitution. Firstly nothing has been brought to my notice by Counsel for the petitioner to indicate that any such objection was raised by the petitioner either in the suit or in the first appeal or even in the second appeal that no decree for possession could be passed inasmuch as there stood certain constructions on the land in dispute and no decree for demolition had been prayed for. If such an objection had been raised at the appropriate stage and if them were really certain constructions on the said land as alleged by the petitioner it would have been open to the respondent No. 3 to get the plaint amended seeking a relief for demolition also of those constructions. Litigation cannot be permitted to be reduced to a game of chess so as to entitle a person not to raise an objection at the appropriate stage and to keep it reserved for the stage when the decree is put in execution. In V.D. Modi V.R.A. Rehman ( AIR 1970 SC 1475 ), it was held that a court executing a decree cannot go behind a decree between the parties or their representatives. It must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect either in law or on facts. Unless it is set aside in an appeal or revision, the decree even if it is erroneous is still binding between the parties 9. In substance what the petitioner wanted to urge before the Executing Court was that since certain constructions stand over the land in dispute passing of, a mere decree for possession was erroneous. This objection obviously could not be entertained by the executing court in view of what has been held in V.D. Modis case (supra). In that case one of the questions raised before the executing court was about the jurisdiction of the Court passing the decree. It was held that when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. It was held that when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could, have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction, 10. At this place it may be pointed out that respondent No. 3 has urged before me that there were no constructions whatever on the land in dispute and the plea raised in this behalf by the petitioner in his objection under Sec.47 was calculated only to delay and defeat the decree which had been passed in a suit instituted about 24 years back in the year 1958, Had this plea been entertained by the executing court it would have been incumbent upon it to take evidence on the question as to whether there was any construction on the land in dispute as alleged by the petitioner and denied by respondent No. 3. The plea did not appear on the face of the record and required examination of a question which could have been but had not been raised by the petitioner either in the suit or in the first appeal or even in the second appeal. The Executing Court cannot therefore be held to have committed any such mistake in not permitting the petitioner to raise this plea which may justify interference under Art.226 of the Constitution. 11. Further it has been held by a Division Bench of this Court in Abdul Ghani v. Vishwanath (1957 All LJ 105) : ( AIR 1957 All 337 ) that even if certain constructions stood on a piece of land of which possession was sought it was not necessary for the plaintiff to seek demolition and it was open to him to claim possession saying that the defendant was at liberty to remove the construction before possession was delivered to it. Counsel for the petitioner has brought to my notice a Full Bench decision of this Court in Shanti Prasad v. Ch. Mahabir Singh, (1957 All LJ 431) : ( AIR 1957 All 402 ) and on its basis he has urged that the view taken in the Division Bench Case of Abdul Ghani referred to above, has been overruled. I find it difficult to accept this submission. The question which had been referred to a Full Bench in Shanti Prasads case (supra) was whether when determining the valuation of a suit for possession of land for purposes of jurisdiction it is necessary to take into account the value of a garden and building which stood on the land, even though possession is not being claimed over the building or garden along with the land. It was held that while valuing his relief for possession over the land in suit for purposes of jurisdiction the plaintiff should have added to the value of the land the market value of the building and garden winch stood thereon. It may be said that the view expressed in Abdul Ghanis case (supra) that it was not necessary for the plaintiff to add the value of the construction even for purposes of jurisdiction, was not approved in Shanti Prasads case. Nothing has been brought to my notice in Shanti Prasads case on the basis of which this could be said that it has been held therein that in such a case it is incumbent for the plaintiff to seek demolition of the construction also and to pay court fees on such relief. It is a different matter that if the plaintiff specifically seeks demolition also of the construction he will certainly have to pay court fees on such relief. 12. No other point has been pressed. 13. In the result I find no merit in this writ petition. It is accordingly dismissed with costs payable to respondent No. 3. Petition dismissed.