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2016 DIGILAW 478 (CHH)

Krishan Kumar Dubey v. Sevak Ram

2016-11-10

SANJAY K.AGRAWAL

body2016
ORDER : 1. In a suit filed by respondents No.1 and 2 claiming relief of declaration of title, the trial Court by its judgment and decree dated 14-2-2003 dismissed the suit. Feeling aggrieved against the judgment and decree passed by the trial Court, respondents No.1 and 2/plaintiffs preferred first appeal before the first appellate Court and the said Court by its judgment and decree dated 31-1-2006, partly allowed the appeal and modified the decree and thereafter, the decree holders/plaintiffs preferred an application for execution of the appellate decree. The executing Court by its impugned order dated 5-12-2008, allowed the application and issued warrant of possession against which this writ petition has been filed stating inter alia that the relief of possession was never granted by the trial Court or the appellate Court in its appellate decree therefore, the executing Court has exceeded in its jurisdiction in granting the decree of warrant of possession against the judgment debtors. 2. Mr. Ratnesh Kumar Agrawal, learned counsel appearing for the petitioner/judgment debtor, would submit that the executing Court has apparently exceeded the jurisdiction in issuing warrant of possession in absence of decree for relief of possession. 3. Ms. Sareena Khan and Mr. Shivendra Bharadwaj, learned counsel for the respective respondents, would support the impugned order and submit that the executing court is justified in directing the issuance of warrant of possession in view of the order of the appellate Court. 4. 3. Ms. Sareena Khan and Mr. Shivendra Bharadwaj, learned counsel for the respective respondents, would support the impugned order and submit that the executing court is justified in directing the issuance of warrant of possession in view of the order of the appellate Court. 4. In order to consider the plea raised at the Bar, it would be expedient to reproduce paragraph 21 of the appellate Court decree by which the decree of the trial Court was partly modified and following reliefs were granted in favour of respondents No.1 and 2/plaintiffs:- 21- mijksDr foospuk ds vk/kkj ij ;g vihy vkaf'kd :i ls Lohdkj dh tkrh gS rFkk vihykFkhZx.k ds i{k eas fuEukuqlkj vkns'k fn;k tkrk gS%& 1- izåMhå&3 ,oa izåMhå&4 ds iz'uk/khu fodz; i= fnukad 1@4@83 ,oa 4@4@83 ds dszrk d`".k dqekj nqcs ¼izfrådzå&3½ dks muds fodzsrk e`r equhjke ¼izfrådzå&1½ ,oa dY;k.k izlkn ¼izfrådzå&2½ ds va'k dh lhek rd gh mDr fodz; i= ij LoRo gksxkA mDr ds vkf/kD; esa fd;k x;k vUrj.k ls vihykFkhZx.k@oknhx.k ckf/kr ugha gksxs rFkk vkf/kD; esa fd;k x;k varj.k 'kwU; ekuk tkosxkA 2- rn~uqlkj vkyksP; fu.kZ; ,oa vkKfIr esa mijksDr lhek rd ifjorZu dj 'ks"k fu"d"kZ dh iqf"V dh xbZA 3- izdj.k dh ifjfLFkfr;ksa dks ns[krs gq, mHk; i{k viuk&viuk O;; ogu djsaxsA vf/koDrk'kqYd izekf.kr gksus ij lwph vuqlkj tks de gks] ns; gksxkA rnuqlkj fMdzh cuk;h tkosA 5. A careful perusal of the aforesaid decree would show that the first appellate Court has only granted decree for declaration to some extent in favour of the plaintiffs / respondents No.1 and 2. It is absolutely declaratory in nature. No relief of possession was granted admittedly for the reason that it was not claimed. Therefore, there was no occasion for the executing court to issue warrant of possession for delivery of possession. 6. It is well settled law that the executing court cannot go beyond the decree and has only to execute the decree granted by the competent court either it may be the trial Court or the appellate Court, as the case may be. 7. The Supreme Court in the matter of TCI Finance Ltd. v. Calcutta Medical Centre Ltd. and another, (2005) 8 SCC 41 had held that the executing court cannot go beyond the decree. It is the settled position in law which flows from Section 38 of the CPC; except when the decree is a nullity or is without jurisdiction. 8. 7. The Supreme Court in the matter of TCI Finance Ltd. v. Calcutta Medical Centre Ltd. and another, (2005) 8 SCC 41 had held that the executing court cannot go beyond the decree. It is the settled position in law which flows from Section 38 of the CPC; except when the decree is a nullity or is without jurisdiction. 8. Very recently, the Supreme Court in the matter of Shivshankar Gurgar v. Dilip, (2014) 2 SCC 465 following its earlier judgment in the matter of Deepa Bhargava v. Mahesh Bhargava, (2009) 2 SCC 294 has held that the executing court neither can go beyond the decree nor it has jurisdiction to modify the decree, it has to execute the decree as it is. Relevant paragraph of the report states as under:- "... It is a settled principle of law that the executing court cannot go beyond the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. This Court in Deepa Bhargava v. Mahesh Bhargava (supra) held thus:- “9. There is no doubt or dispute as regards interpretation or application of the said consent terms. It is also not in dispute that the respondent judgment-debtors did not act in terms thereof. It has no jurisdiction to modify a decree. It must execute the decree as it is. ...”" 9. In the present case, no decree for recovery of possession has been granted in favour of the plaintiffs/respondents No.1 and 2. Therefore, the executing Court has exceeded the jurisdiction in issuing warrant of possession and directing delivery of possession. The impugned order deserves to be and is accordingly set aside holding that warrant of possession issued is illegal and contrary to law. 10. The writ petition is allowed to the extent indicated herein-above. No order as to costs.