M. K. SHARMA ( 1 ) THIS petition is directed against the order dated 17/08/1991 passed bythe Sub Judge, 1st Class, Delhi in Suit No. 15/1987 disposing of the executionapplication dated 13. 7. 1987 together with an application under Section 151 CPC filed by the petitioner herein praying that the respondent/judgment debtor be restrainedfrom making any construction over the plot in question. ( 2 ) ASUIT was filed by the petitioner herein as plaintiff in the year 1979 against therespondents as defendants in which a decree was sought for, for permanent injunctionrestraining the defendants. In the aforesaid suit a decree was passed on 19. 8. 198directing removal from the suit premises all junks, confiscated material, malba"building material and construction of the Engineering Department, stores Engineering Department and everything else not connected with the school land anto restore the entire plot of land for purposes of the school only within 60 days from thedate of the said order. A contempt application was also filed by the petitioner hereinwhich was, however, dropped at the request of the petitioner when the Divisionansoffice of the Executive Engineer removed the aforesaid malba etc. from the site andcomplied with the order. An execution application was filed by the petitioner allegingthat after 2. 7. 1991 the respondents had again started using the construction for thepurpose of office of the Executive Engineer of the MCD. It was further alleged that theaforesaid user is for the purpose other than for the purpose of the school and as suchthe decree is to be enforced and prayed that the immovable properties of therespondent may be attached and appropriate compensation may be awarded. Thejudgment debtor, however, contested the aforesaid proceedings contending, interalia, that subsequent to the passing of the decree the respondent by a resolutiondated 24. 6. 1987 changed the nature of the premises through the aforesaid resolutiorpassed by the Standing Committee of the Municipal Corporation of Delhi wherebythe lay out plan has been revised and, therefore, the execution application hasbecome instructions in view of change of the resolution and change in the lay out plana copy of the aforesaid resolution is on record and is also extracted in the impugnedorder. It is stated in the said resolution that as per the zonal plan, the site was shownfor an existing primary school but as per the Zoning regulations of master plan aminimum area for primary school is 1. 5. It is stated in the said resolution that as per the zonal plan, the site was shownfor an existing primary school but as per the Zoning regulations of master plan aminimum area for primary school is 1. 5. area for school having 600 students. Therefore, about 0. 22 acres of the area at site is in excess of minimum required siteand the land use as per the master plan for the area was for residential. It was alsostated that municipal offices could be located even in a residential area and, therefore,from the planning point of view there was no objection if 0. 22 acres of area wasutilised for Municipal Officer s (Executive Engineer s) Site Office as proposed by theengineering Department. The aforesaid proposal for revision in the lay out plan ofgreen Park and Extension was placed before the Standing Committee for approvaland the Standing Committee approved the said proposal to the effect that the area ofprimary school be reserved as 1. 5 acres in accordance with the provisions of masterplan and the additional area of 0. 22 acres beearmarked for municipal offices out ofthe primary school site. ( 3 ) IT is the stand of the respondent that with the passing of the aforesaid resolutionby the competent authority in terms of the DMC Act, nature of the premises in disputehas been changed and thus the decree obtained by the petitioner has becomeinfructuous and the execution application is not maintainable. The Sub-Judgemenstclass upheld the aforesaid objection of the respondent holding that the decreestands satisfied and that if the petitioner is in any manner aggrieved by the aforesaidresolution the petitioner should challenge the aforesaid resolution by means of aseparate suit, if so advised but it cannot file another, execution application forchallenging the resolution dated 24. 6. 87 in the garb of getting the decree executed ( 4 ) I have heard the learned counsel appearing for the parties. Counsel appearingfor the petitioner submitted that the executing court acted illegally in treacing thedecree as satisfied. He also submitted that the injunction granted by the trial courtremains in force in perpetuity the same having become final and binding on theparties and, therefore, it could not have been held by the Sub-judge that the decreestood satisfied. Counsel appearingfor the petitioner submitted that the executing court acted illegally in treacing thedecree as satisfied. He also submitted that the injunction granted by the trial courtremains in force in perpetuity the same having become final and binding on theparties and, therefore, it could not have been held by the Sub-judge that the decreestood satisfied. He also submitted that the subsequent action on the part of therespondent in changing the nature of the premises and revising the lay out plan isillegal and without jurisdiction. In support of his contention, the learned counsel reliedupon the decision of the Supreme court in Bhavan Vaja and Ors. Vs. Solanki Hanujikhodaji Mansang and Anr. reported in AIR 1972 S. C. 1371 and also the decision inpt. Chet Ram Vashist (Dead) by Lrs. Vs. M. C. D. 1994 (4) SCALE 695 . ( 5 ) COUNSEL for the respondent, however, submitted that the respondent has a siteoffice at the suit land which is looking after the basic needs of the residents of thearea concerned. She also submitted that since the respondents have been empoweredunder the provisions of the Act to make out a lay out plan it also, therefore, has anatural corollary the power to revise and amend such lay out plan and when therespondents taking recourse to the aforesaid power have changed the lay out plan,the same if at all could have been a subject matter in a separate proceeding andcould not be challenged in the present proceedings. She also relied upon thedecision of this court in Green Park Welfare Association and Ors. Vs. MCD and Ors. reported in Vol. 42 1990 DLT 87 . ( 6 ) IN the light of the aforesaid submissions, I have also perused the records of thecase. In the suit filed by the petitioner, a decree was passed for mandatory as well asfor perpetual injunction. A copy of the judgment of the trial court decreeing the suit formandatory and permanent injunction is placed on record. Issue No. 1 which wasdecided by the trial court was in the following terms :-1. Whether the plot in question is being misused by the defendant? OPP. Issue No. 2 was to the effect that if Issue No. 1 is proved, whether the plaintiff isentitled to the relief claimed. The aforesaid issues were decided by the trial court infavour of the petitioner and against the respondents holding that the. Whether the plot in question is being misused by the defendant? OPP. Issue No. 2 was to the effect that if Issue No. 1 is proved, whether the plaintiff isentitled to the relief claimed. The aforesaid issues were decided by the trial court infavour of the petitioner and against the respondents holding that the. petitioner isentitled to the injunction as prayed for. It was also held by the trial court that theaforesaid suit land was being misused by the respondent by running an office of theengineering Department and bydumping Junks, confiscated material, malba, buildingmaterial and construction of the Engineering Department at the said plot of land. My attention is also drawn to para 20 of the said judgment whereunder the trialcourt granted relief to the petitioner to the effect that the defendant corporation wouldremove from the plot of land all junks, confiscated material, malba, building materialand construction of the Engineering Department, stores of Engineering Departmentand everything else not connected with the school and restore the entire plot of landfor the purposes of the school only within 60 days from the order. The aforesaidjudgment and decree was passed on 19. 8. 1986 and the execution application wasfiled on 13. 7. 1987 seeking for a relief that the judgment debtors be restrained frommaking any construction over the plot in question. During the course of argumentsstrong reliance was placed by the respondent on Resolution No. 782 of the Standingcommittee of the Municipal Corporation of Delhi dated 24. 6. 1987. By the aforesaidresolution, the area of the primary school was reserved as 1. 5 acres in accordancewith provisions of the master plan and the additional area of 0. 22 acres was earmarkedfor municipal offices out of the primary school site. The lay out plan as earlierapproved by the Municipal Corporation of Delhi included an area of 1. 72 acres forthe primary school site. The aforesaid land was kept reserved for the school on whichthe said primary school is existing even as of today. The said land was kept apart forthe aforesaid purpose while granting approval to the lay out plan. However, therespondent on the aforesaid part of the land had office of the Engineering Departmentin view of which the aforesaid decree was obtained by the petitioner. Subsequently,however, the respondent sought to change the nature of the premises by revising thelay out plan byexercising powers under Section 313 of the Act. However, therespondent on the aforesaid part of the land had office of the Engineering Departmentin view of which the aforesaid decree was obtained by the petitioner. Subsequently,however, the respondent sought to change the nature of the premises by revising thelay out plan byexercising powers under Section 313 of the Act. Out of the aforesaidland reserved for the primary school site, an area of 0. 22 acres is sought to be carvedout for construction of a permanent office of the Executive Engineer. Although thesaid land as per the master plan of the area is for residential but since the municipaloffices could be located in the residential area, therefore, the aforesaid area of 0. 22was sought to be utilised for municipal office of the Executive Engineers Site Officeas proposed by the Engineering Department. ( 7 ) THE issue, therefore, which arises for my consideration is whether the aforesaidaction on the part of the respondent could be said to be legal and valid. It wasvehemently submitted by the respondent that the respondents have been vested withthe power to make out lay out plan and approve the same and, therefore, as anecessary corollary to the aforesaid power it also has the power to revise and amendthe said lay out plan as to change the same to. cope with the changing need of thetime. In support of her submission, counsel for the respondent relied upon thedecision in Greater Kailash Welfare Association s cases (Suora ). ( 8 ) LEARNED counsel appearing for the petitioner, however, submitted that the decreepassed by the trial court was to have effect in perpetuity and, therefore, the respondentas against whom a decree was passed could not have passed a resolution changingthe lay out plan which is non-est in the eye of law. He also submitted that there couldnot have been any unilateral revision of the lay out plan by the Municipal Corporationof Delhi. ( 9 ) IN Bhavan Vaja and Others (Supra) the Supreme Court has held that althoughit is true that an executing court cannot go behind the decree under execution but atthe same time it does not mean that it has no duty to find out the true effect of thatdecree. ( 9 ) IN Bhavan Vaja and Others (Supra) the Supreme Court has held that althoughit is true that an executing court cannot go behind the decree under execution but atthe same time it does not mean that it has no duty to find out the true effect of thatdecree. It was further held that for construing a decree it could and in appropriatecases it ought to take into consideration the pleadings as well as the proceedingsleading upto the decree and in order to find out the meaning of the words employed ina decree, the court often has to ascertain the circumstances under which these wordscame to be used. The aforesaid principle of law laid down by the Supreme Court isrelevant when the observation of the executing court to the effect that the decreestood satisfied, is noticed. The executing court in the present case held that thedecree stood satisfied, because of the revision in the lay out plan and such revisionhas given rise to fresh cause of action and, therefore, no execution application wasmaintainable. The trial court in the aforesaid decree categorically held that the land inquestion was being misused by the defendant and, therefore, it was held that theplaintiff was entitled to the relief as claimed for and also in that context issuedinjunction directing the respondent to remove from the plot of land ail the malba etc. and to restore the entire plot of land for the purpose of school. When the pleadingsare read in context of the aforesaid decree passed, it is apparent that the trial courtheld that the respondent could not have utilised the aforesaid land for the purpose ofoffice for which it sought to use the suit land. The land was earmarked and approvedin the lay out plan for the purpose of primary school site. The said plan was approvedby the corporation and it passed a resolution approving the said plan. ( 10 ) IN Chet Ram Vs. MCD (Supra) it was held by the Supreme Court that the tworights, namely, ownership and management are distinct and different rules and ofmanagement are distinct and different rights and that in a case of transfer of right ofmanagement the ownership continues with the person to whom the property belongsand the local authority only gets rights to manage it. MCD (Supra) it was held by the Supreme Court that the tworights, namely, ownership and management are distinct and different rules and ofmanagement are distinct and different rights and that in a case of transfer of right ofmanagement the ownership continues with the person to whom the property belongsand the local authority only gets rights to manage it. It was further held tht thecorporation as custodian of civil amenities and services may claim and that would beproper as well, to permit the Corporation to regulate, manage, supervise and lookaftersuch amenities but whether such a provision can entitle a corporation to claimthat such property should be transferred to it free of cost appears to be fraught withinsurmountable difficulties. It was in specific words held that the law did not appear tobe in favour of the Corporation although public purpose is, no doubt, a very importantconsideration and private interest has to be sacrificed for the welfare of the society. But when the appellant was willing to reserve the two plots for park and schools thenhe was not acting against public interest but it could not be stretched to create a rightand title in favour of a local body which almost would be entitled to manage andsupervise only. In the aforesaid the Supreme Court also noticed the provisions ofsection 313 of the D. M. C. Act. After referring to the provisions of the said section inthe said chapter, it was held that there was no provision in the said chapter or anyother provision in the Act which provides that any space reserved for any open spaceor park shall vest in the Corporation and that even a private street could be declaredto be a public on the request of the owners of the building and then only in vests in thecorporation. It was also held that in absence of any provision, therefore, in the Act theopen spaceleft for school or park in a private colony could not vest in the Corporation. It was held in the said decision that since no right or interest of the Corporation iscreated in the land which is set apart for school or park in a private colony, theresolution of the Standing Committee that the area specified in the lay out plan for thepark and school shall vest in Corporation free of cost, was not in accordance with law. ( 11 ) IN view of the aforesaid settled position of law the respondent could not haveacquired ownership right over the said 0. 22 acres of land which was earmarked onlyfor the use of a primary school, without acquiring the same in accordance with law forits own purpose. All that it has is a right of management and supervision of theamenities to be provided in the said land. The respondents could acquire ownershipof the land in accordance with law and thereafter only could proceed to change theland user in the lay out plan and revise the said lay out plan accordingly. In thisparticular case, the respondents have treated the said land as if it has vested on itand their own land which, however, is not a correct position in view of the decision ofthe Supreme Court in the case of Chet Ram (Supra ). Therefore, the respondentcould not have proceeded to deal with the same as if it is the own land of thecorporation and sought to use the same for its own purpose by changing the natureof the same. ( 12 ) SECTION 313 of the act empowers the Commissioner to sanction lay out plan butthe said power could not be extended to contemplate vesting of the said land for adifferent purpose to vest in the corporation or to be transferred to it. Sub-section (5) ofthe said Section indicates that the land which is the subject matter of the lay out plancould not be dealt with by the owner except-in conformity with the order of thej Standing Committee. In the present case, although a resolution has been passed bythe Standing Committee carving out 0. 22 acres of land for the purpose of establishmentof the Office of the Executive Engineer, the same cannot be given effect to, so longthe respondent does not acquire ownership over the said land. ( 13 ) IN the light of the aforesaid discussion, it is held that the executing court was notjustified in holding that the decree stood satisfied and the fresh cause of action hasarisen with the change and revision of the lay out plan. The said order being illegaland without jurisdiction is set aside. ( 13 ) IN the light of the aforesaid discussion, it is held that the executing court was notjustified in holding that the decree stood satisfied and the fresh cause of action hasarisen with the change and revision of the lay out plan. The said order being illegaland without jurisdiction is set aside. It is held that the respondent would not be entitledto change the land-user in respect of the said land till it is acquired by the corporationfor its own use in accordance with law and then only the resolution changing thenature of land user, could be given effect to. In terms of the aforesaid order, thepetition stands disposed of.