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2017 DIGILAW 603 (ORI)

Henarani Das v. Suresh Ch. Sisu Goswamy

2017-05-19

D.DASH

body2017
JUDGMENT : 1. The appellant by filing this Second Appeal impeaches the judgment and decree passed by the learned 2nd Additional District Judge, Puri in R.F.A. No. 36 of 2008 which arises out of the judgment and decree passed in O.S. Nos. 39/115 of 1986/82 as later on clarified undergoing modification by order dated 12.12.2006 passed by learned Addl. Civil Judge, (Sr. Division), Puri in CMA No. 06 of 2004. The present appellant is the plaintiff in the original suit before the trial court and also the appellant in the aforesaid First Appeal, wherein this respondent is the defendant-respondent. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The lis now in hand has a long journey since the year 1982 which has by now been for around three decade and half. The same has to be stated for proper appreciation of the matters involved in this appeal. The run is therefore described herein below:- (a) The plaintiff had filed the suit i.e. O.S. Nos. 39/115 of 1986/82 against the defendant for specific performance of contract of sale of the suit land with the house standing thereon. The plaintiffs case is that the defendant is the owner of the land and house situated at Puri town. Being in urgent need of money, on 07.9.1979, the defendant had mortgaged the same in favour of the plaintiff taking a sum of Rs. 3,000/- and giving delivery of possession of the same. The plaintiff claims to be in possession of the suit land and house since then. The defendant again wanted to be paid with sum of Rs. 1050/-. So on 03.10.1979, the plaintiff paid sum of Rs. 1050/- to the defendant who granted a receipt. Thereafter, the defendant took further sum of Rs. 1000/- on 02.12.1979; Rs. 2,250/- on 09.12.1979. The defendant had granted receipt towards payment of Rs. 1000/- on 02.12.1979 and on 09.12.1979, he had executed a deed acknowledging to have incurred the loan. Thus in total, the defendant had received a sum of Rs. 7,700/- from the plaintiff. Being asked by the plaintiff for repayment of the loan amount, the defendant expressed his inability. 2,250/- on 09.12.1979. The defendant had granted receipt towards payment of Rs. 1000/- on 02.12.1979 and on 09.12.1979, he had executed a deed acknowledging to have incurred the loan. Thus in total, the defendant had received a sum of Rs. 7,700/- from the plaintiff. Being asked by the plaintiff for repayment of the loan amount, the defendant expressed his inability. He then finally came out with the proposal to sale the suit land and house to the plaintiff for a consideration of Rs. 10,000/-. So, on 30.08.1981, the defendant executed an agreement in that regard. It is stated that although the defendant had received a sum of Rs. 7,700/- from the plaintiff and executed an agreement for sale of the suit land and house, he thereafter did not come forward to execute the sale-deed in favour of the plaintiff. So, notices were served by the plaintiff upon the defendant. Despite the notice, the defendant having failed to execute the sale-deed, the plaintiff filed the suit for specific performance of contract for sale of the suit land and house standing theeron. It has been the specific case of the plaintiff that he was/is ready and willing to pay the balance agreed consideration of Rs. 2,300/- to the defendant and bear all other expenses for the registration of the sale-deed. However, the defendant avoided to comply the sale transaction as agreed upon. (b) The defendant while traversing the plaint averments has stated that the husband of the plaintiff is his friend and is addressed as brother. Standing with such relationship, they used to discuss about their financial condition. The defendant being in need of money once wanted to incur loan of Rs. 3,000/- from the plaintiff’s husband and he was so accommodated. As he could not repay the loan, the plaintiff’s-husband had cautioned. He further admits to have executed a deed of mortgage at his cost on 07.09.1979 in favour of the plaintiff. It is stated that since the defendant was residing at his work place outside Puri town, previously the house was under his lock and key. Since the defendant could not repay the loan of Rs. 3,000/-, he had allowed the plaintiff and her husband to stay in the house. It is stated that since the defendant was residing at his work place outside Puri town, previously the house was under his lock and key. Since the defendant could not repay the loan of Rs. 3,000/-, he had allowed the plaintiff and her husband to stay in the house. The defendant had further told the husband of the plaintiff that the interest that would go on to accrue over the amount which he had taken on loan would get adjusted towards the rent that he would have got, had he given the house on rent to others. It is the further case of the defendant that the husband of the plaintiff then had taken his signature on a stamp paper so as to reduce all the above terms and conditions into writing thereon and he had signed on that stamp paper believing the words of the husband of the plaintiff that he would write those later as decided. After four months when the defendant went to the husband of the plaintiff and offered money requesting him to return the documents and give the vacant possession of the house, the plaintiff and her husband then requested for some time stating that so immediately it would not be possible on their part to leave the house by getting themselves accommodated in another house which would not be so easy a task. As agreed, six months of time was allowed being pressed for by the plaintiff’s husband. However, plaintiff and her husband did not vacate the same nor did they receive the money offered by the defendant towards repayment of the loan. The defendant has clearly stated to have never executed any agreement for sale of the suit land and house in favour of the plaintiff at any point of time. It has also been the case of the defendant that even in the year, 1979, the valuation of the suit house was around Rs. 50,000/- and by the time of institution of the suit, it was around Rs. 1 lakh. It is his case that said document which is projected as an agreement for sale is a fraudulent one and has been created by the plaintiff and her husband in order to grab the property of the defendant who has no second house of his own to stay. (c) On the rival pleadings, the trial court framed in total eight issues. (c) On the rival pleadings, the trial court framed in total eight issues. The crucial issue that arose before the trial court was with regard to the genuineness of the agreement for sale and its legal effect for the decision in the suit as also the questions touching the case of mortgage when the factum of mortgage at the initial stage is not denied. First of all taking up issue relating to mortgage, the trial court found the plaintiff to be in possession of the suit house since the year 1979. It has also taken note of the evidence of the husband of the plaintiff who had examined himself on behalf of the plaintiff. His evidence is that defendant had mortgaged the suit land and house in favour of the plaintiff in the year, 1979 and it was a registered one; (admitted in evidence and marked Ext. 3) for a sum of Rs. 3,000/-. His evidence is also on the score that pursuant to the said deed of mortgage, the possession of the suit property has come to the hands of the plaintiff. The final conclusion of the trial court remained the following:- “xxx xxx xxx xxx xxx When the defendant himself admits to have mortgaged the suit property with the plaintiff and admits to have also delivered possession of the same, I am to accept that the plaintiff is in possession of the suit property till now the and therefore this issue is answered accordingly in favour of the plaintiff.” (d) Thereafter, going to decide the issue relating to the genuineness of the agreement for sale and its legal effect, the following finding has been recorded:- “8. xxx xxx xxx xxx xxx xxx xxx xxx Therefore, the agreement deed Ext. 1 is one sided and not enforceable in law. Therefore, the plaintiff also has no right, title or interest over the suit land on the strength of Ext. 1. Hence, these two issues are answered against the plaintiff.” The suit was ultimately decreed in part entitling the plaintiff is said to have the only right to recover a sum of Rs. 7,700/- from the defendant as has been reflected in ordering portion of the judgment. 5. The following decree however followed the said judgment:- Preliminary Decree for sale:- (Where the court declares the amount due) (Order 34, Rule 4(1) Code of Civil Procedure). 7,700/- from the defendant as has been reflected in ordering portion of the judgment. 5. The following decree however followed the said judgment:- Preliminary Decree for sale:- (Where the court declares the amount due) (Order 34, Rule 4(1) Code of Civil Procedure). “xxx xxx xxx xxx xxx xxx xxx xxx This suit coming on this 2nd day of April, 1987 for hearing before xxx xxx Addl. Sub-Judge, Puri and in the presence of xxx xxx, Advocate, xxx xxx, Adv., xxx xxx, Adv. and xxx xxx, Advocate for the plaintiff and xxx xxx, Adv. and xxx xxx, Adv. for the defendant; it is hereby declared that the amount due to the plaintiff of the mortgage mentioned in the plaint calculated up to this 2nd day of April, 1987 is the sum of Rs. 7,700/- in part for principal. And it is herby ordered and decreed as follows:- That the suit is decreed in part on contest against the defendant, but in the peculiar circumstances of the case, parties to bear their costs. The plaintiff is directed to receive Rs. 7,700/- from the defendant. (i) That the defendant do pay into court or any later date up to which time for payment may be extended by the Court, the said sum of Rs. 7,700/-. (ii) That, on such payment and on payment thereafter before such date as the Court may fix of such amount as the court may adjudge due in respect of such expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11 of Order XXXIV of the first Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required re-convey or re-transfer the said property free from the said mortgage and clear of and from all in cumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property. (3). (3). And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property. (4). And it is hereby further ordered and decreed that the money realized by such sale shall be paid into Court and shall be duly applied (after deduction there from of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10 together with such subsequent interest as may be payable under rule 11 of Order XXXIV of the first schedule to the Code of Civil Procedure, 1908, and that the balance, if any shall be paid to the defendant or other persons entitled to receive the same. (5). And it is hereby further ordered and decreed that, if the money realized by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit. Given under my hand and the seal of this Court, this the 2nd day of April, 1987”. 5. Neither the plaintiff nor the defendant moved further questioning the legality and propriety of the said judgment and decree. 6. Given under my hand and the seal of this Court, this the 2nd day of April, 1987”. 5. Neither the plaintiff nor the defendant moved further questioning the legality and propriety of the said judgment and decree. 6. In the year, 1979, the respondent filed a petition before the trial court which has been numbered as Execution Petition No. 03 of 1997. It is with the prayer that the plaintiff be directed to accept a sum of Rs. 7,7000/- from him and deliver vacant possession of the suit land and house standing thereon with all the documents. On 11.09.1998, the Executing Court allowed the petition and directed the plaintiff to accept the said sum; return the documents pertaining to the suit land and house in her possession and custody and deliver the possession of the suit land and house to the defendant. 7. The plaintiff challenged this order by carrying a Civil Revision No. 26/03 of 1999/98. By order dated 02.11.2000, the said revision was allowed by the learned Addl. District Judge. The order of executing court was set aside. The revisional court first of all said that the executing court is not permitted under law to travel beyond the decree. It then held the decree to be a preliminary one which as such cannot stand for execution until made final. The execution petition was thus said to be not maintainable. 8. After this order of the revisional court, the defendant on 02.03.2001 filed a petition in the original suit to make the preliminary decree final. The trial court then passed an order that since in the judgment; there remains no mention regarding the delivery of possession of the suit land and house to the defendant on payment of Rs. 7,700/- by him to the plaintiff and upon her receipt; when also the defendant had not advanced any counter claim, there can arise no question of re-delivery of the suit land and house to the defendant. The petition filed by the defendant to make a preliminary decree final was thus held to be misconceived. 9. The defendant being aggrieved by the same, approached this Court with an application under Article 226 & 227 of the Constitution in OJC No. 15538 of 2001. The petition filed by the defendant to make a preliminary decree final was thus held to be misconceived. 9. The defendant being aggrieved by the same, approached this Court with an application under Article 226 & 227 of the Constitution in OJC No. 15538 of 2001. This Court by order dated 12.02.2004 quashed the order of the trial court and directed the defendant to file an appropriate application under section 151 read with section 152 of the Code of Civil procedure before the trial court seeking a clarification as regards the decree passed in the suit whether the preliminary or final so as to make it meaningful by way of appropriate modification in the language of the decree; in conformity with the judgment. 10. The order in the OJC No. 15538 of 2001 is as follows:- “xxx xxx xxx xxx xxx xxx xxx xxx xxx (2). When the defendant/petitioner came forward to deposit the amount of Rs. 7,700/- as per aforesaid decree to get recovery of the schedule property, he filed an application for execution, vide Execution Case No. 03 of 1997. Learned Addl. Civil Judge (Sr. Division) dismissed that Execution Case on 11.09.1998 on the basis of objection under section 47 C.P.C. raised by the plaintiff/opp. party. A civil revision against that order vide Civil Revision No. 26/63 of 1999/98 ended in dismissal of the same on the ground that the aforesaid decree being not a final case, the Execution Case is not maintainable. Soon thereafter petitioner’s application for final decree was rejected as per Annexure-4, i.e., the order passed on 27.07.2001 on the ground that there is nothing to draw a final decree.” (3). Therefore, the fact remains that the defendant has shown his readiness to repay the money, but he is debarred to take possession of the landed property notwithstanding a decree to that effect only because the decree has been made ambiguous that is to say without expressing whether it is a preliminary or final decree and direction in the decree stipulating the period within which the decree shall be acted upon by the parties and consequence of failure thereof by either of the parties. (4). (4). Therefore, while setting aside the order passed in Annexures-3 and 4, this Court directs that petitioner shall file an application under section 151 read with section 152, C.P.C. in the court below within a period of two weeks to seek clarification from that court and to be specific as to whether the decree is preliminary or final and accordingly to make it meaningful by necessary modification in the language of the decree but in conformity with the judgment. Thereafter, if that decree is liable to be executed at the instance of the defendant, then his execution petition vide Execution Case No. 03 of 1997 be considered accordingly or else his application for final decree which was disposed of on 27.07.2001 be considered in accordance with law. The writ application is accordingly disposed of.” 11. With the above order of this Court, the defendant filed a petition under section 151 read with section 152 of the Code seeking a clarification and appropriate modification of the decree in consonance with the observation and direction as has been stated in the forgoing para. The petition then was rejected by the trial court by order dated 18.11.2004. The ground of rejection is that this Court had not directed for delivery of possession of the suit land to the defendant and that was also not the direction in the judgment. 12. In view of that rejection, the defendant again approached this Court by filing W.P.(C) No. 1905 of 2005. This Court on that occasion found the trial court to have not properly acted keeping in view the observations made and in conformity with the direction given in the earlier order by following the same in its letter and spirit. The trial court was found to have diverted the issue and by giving focus on an aspect which was not necessary, the matter being dealt; finally the petition had been rejected. Order then being quashed, the trial court was again directed to peruse the judgment express the view in conformity with that as to whether the decree passed is preliminary or final or both and in the other event to make its specific as to which part is preliminary and which part is final so as to comply with the said direction. The order dated 14.07.2006 passed in W.P.(C) No. 1905 of 2005 stands as under:- “xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx It is, therefore seen that learned Addl. Civil Judge has not complied with the direction of this Court in its letter and spirit and unnecessarily she has diverted the issue to the other prayers made by the petitioner. The approach and attitude of the learned Addl. Civil Judge is not appreciated. The court below is to peruse the judgment and to express his view in conformity with that judgment as to whether the decree which was passed is preliminary or final or both and in that event, he is to make it specific as to which part is preliminary and which part is final. Instead of taking any stringent view against the officer, this Court provides an opportunity to the learned Addl. Civil Judge to comply with the above quoted directions in the order dated 12.02.2004 in OJC No. 15538 of 2001 within a period of four weeks, inasmuch as, petitioner undertakes to produce a certified copy of this order in the court below by 21st July, 2006. To save the proceeding from any further delay, both the parties agree to appear and address the Court on 28th July, 2006 on the aforesaid limited issue and not on the merit of the case not on the merits of the findings in the judgment or any other relief, which the petitioner has claimed in the proceeding. After that clarification, parties are left to exercise their rights in accordance with law, which was also observed in the judgment dated 12.02.2004. Non-appearance or default in appearance of either or both the parties in the court below on 28.07.2006 be treated as default and in that case appropriate order be passed making relevant clarification (in terms of the above quoted order dated 12.02.2004) without suo motu adjourning the case any further. The writ petition is accordingly allowed by setting aside the order dated 18.11.2004 passed in CMA No. 06 of 2004. No cost.” 13. The matter being remitted to the trial court, finally the trial court has passed the following order:- “That the suit is decreed in part on contest against the defendant, but in the peculiar circumstances of the case, parties to bear their own cost. The plaintiff is entitled to recover Rs. No cost.” 13. The matter being remitted to the trial court, finally the trial court has passed the following order:- “That the suit is decreed in part on contest against the defendant, but in the peculiar circumstances of the case, parties to bear their own cost. The plaintiff is entitled to recover Rs. 7,700/- from the defendant. ” This order first came to be challenged by the plaintiff by filing Civil Revision No. 29 of 2007 before this Court. Said revision was dismissed in view of the fact that there being a modification by way of clarification of the decree, there lies on appeal. So the plaintiff filed first appeal which has been dismissed with necessary modification of the decree. Hence, now the move is before this Court with the present the Second Appeal. 14. The appeal has been admitted on the following substantial questions of law:- “(i) Whether the impugned order of modification dated 12.12.2006 passed by the learned Addl. Civil Judge (Sr. Division), Puri in CMA No. 06 of 2004 is in exercise of the power in excess and beyond the scope of section 152 C.P.C.? (ii) When the suit land and house have already been sold in auction in Execution case No. 10 of 1987 for discharge and satisfaction of the money decree passed in M.S. No. 73-87-I whether the same is further available to be put into the present execution case? (iii) When being the auction purchaser of the suit land and house in Execution Case No. 10 of 1987 the appellant has acquired his title over the same, whether the learned court below is justified in directing the appellant to give delivery of possession of the suit land in favour of the respondent who has lost his title over the same in Execution Case No. 10 of 1987? (iv) When the owner defendant was directed to refund the advance money in a particular day i.e. whether it is a mere obligation or coupled with an option given to him either to refund of money or validate the agreement?” It may be stated here that learned Senior Counsels appearing on behalf of the parties at the outset submit that though it has not been mentioned in the order that the appeal has been admitted, the substantial questions of law having been framed, the appeal has been admitted which has to be so read and it has thus to be deemed to have been admitted which the parties have accordingly accepted. 15. At this place for better appreciation, let us have a look at the modified decree as passed by the first appellate court:- “That the mortgage of the suit land and house by the defendant/respondent to the plaintiff/appellant is discharged. The plaintiff/appellant is directed to deliver possession of the suit house and land with its documents to the defendant/respondent within two months, failing which the defendant/respondent will recover possession of the same from her at her cost as per Execution Proceeding No. 03 of 1997 filed by him.” 16. The lower appellate court first of all has found that the trial court while decreeing the suit preliminarily has omitted to mention as to whether a sum of Rs. 7,700/- is to be realized from the defendant towards the mortgage dues. The trial court’s decree declaring the plaintiff to be not entitled to recover Rs. 7,700/- is said to be an error to have been so crept in by way of an omission. The lower appellate court although has found the trial court’s order on rest aspects to be in conformity with the judgment, it however noticed above deficiency in it. The first one is that the trial court should have passed the final decree in respect of the prayer for delivery of possession of suit land and house to the defendant. The lower appellate court is of the opinion that unless said deficiency is made good of, the decree will not be meaningful which was the observation and direction of this Court. The lower appellate court is of the opinion that unless said deficiency is made good of, the decree will not be meaningful which was the observation and direction of this Court. Therefore, even in the absence of any appeal or cross-appeal being presented by the defendant, the lower appellate court assuming the power of modification in view of the provision of order 41 rule 33 of the Code has finally passed the decree as already reproduced at the forgoing para. 17. Mr. S.P. Misra, learned Senior Counsel for the appellant submits that the suit being for specific performance of contract, there was no scope to pass any order granting the relief to the defendant when the trial court refused to grant the relief of specific performance of contract in favour of the plaintiff. His next contention is that the decree as now stands after the modification made by the first appellate court is not in conformity with the judgment and therefore, it does not stand to legal scrutiny. According to him, the lower appellate court has completely erred both in fact and law by passing the impugned decree. In order to derive support to the above submissions, he has heavily relied upon the decision of the Apex Court in case of Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan and Others; (2003) 1 SCC 197 . He next contends that the lower appellate court ought also to be taken into account that the very same property had been put to auction in Execution Case No. 10 of 1987 which is unconcerned with this suit and the present execution proceeding, when has been sold through court auction, the subject matter of this execution proceeding ought to have been taken to be non-existent for being dealt with as it was. He next submits that this plaintiff having stood as the auction purchaser of the said property in that Execution Case No. 10 of 1987, she has acquired valid title by virtue of the same and therefore the lower appellate court was not justified in directing the plaintiff to give delivery of possession of the suit land to the defendant who has no surviving right and title over the property in question. 18. Mr. 18. Mr. R.K. Mohanty, learned Senior Counsel for the respondent submits that the decree which has been impugned in the Second Appeal as has been ultimately passed by the lower appellate court being given a careful reading, no conclusion can be drawn that it has not been in conformity with the entire judgment read with the observations and directions of this Court in the writ applications i.e. OJC No. 15538 of 2001 and subsequently in W.P.(C) No. 1905 of 2005 and to be not in consonance thereof. He has relied upon the decision of the Apex Court in case of Bhavan Vaja and Others Vrs. Solanki Hanuji Khodaji Mansang and Another; AIR 1972 SC 1371 in elaborating the power of the Executing Court in construing a decree which is the duty in appropriate case. Banking upon the principles of law set out therein, his contention is that the lower appellate court taking everything into consideration has discharged its duty perfectly within the power and the jurisdiction so vested in it. He lastly contends that even if the position of the plaintiff is assumed for a moment to be a later auction purchaser, she cannot thereby claim to have derived title over the self-same property so long as the decree from which she suffers and which stares at her face for satisfaction is not satisfied in entirety. That option may remain with the plaintiff to stake the claim over the property through said auction purchase only after satisfaction of this decree and that claim she has to establish later in a duly instituted suit subject to its factual and legal acceptance. According to him, the plaintiff cannot thwart the execution of the instant decree on the subsequently assumed status as claimed where the defendant had nothing to do in respect of his claim in this suit. 19. It has been held in case of Lakshmi Ram Bhuyan (supra) that the judgment as required under the provisions of order 20 of the Code has to state the relief/reliefs allowed to a party. The preparation of decree follows the judgment. The decree must agree with the judgment. The decree shall contain inter alia, particulars of and shall specify clearly, the relief granted or other determination of the suit. 20. In order to answer the substantial questions of law under item no. The preparation of decree follows the judgment. The decree must agree with the judgment. The decree shall contain inter alia, particulars of and shall specify clearly, the relief granted or other determination of the suit. 20. In order to answer the substantial questions of law under item no. (i) by addressing the rival submissions of learned Senior Counsels, it is felt appropriate to begin the journey right from the very order of this Court where after the move for appropriate decision on the petition under section 151 read with section 152 of the Code, has been made and the impugned order has been passed at the ultimatum which is impugned herein. It was directed that it be first decided as to whether the decree is preliminary or final and accordingly to make it meaningful by necessary modification in the language of decree, in conformity with the judgment. It has been further observed that thereafter if the decree would stand for execution at the instance of the defendant then accordingly the Execution Case No. 03 of 1997 would proceed or else upon an application for final decree, same be passed. In the subsequent application of the year 2005 filed by the defendant, this Court while expressing its dissatisfaction over the approach and attitude of the court below again asked to act as per the directions given on the earlier occasion. These orders have attained finality. After that, the trial court sat over the matter afresh. It has taken note of finding of issue no. 8 that on 07.09.1979 the defendant had mortgaged the property in favour of the plaintiff for a sum of Rs. 3,000/- and there was delivery of possession pursuant to the same. The court below has next kept in view as is found by giving a careful reading to the judgment that the finding has been on this score that there was no execution of any agreement for sale by the defendant in favour of the plaintiff. Thereafter, necessary order allowing the petition under section 151 read with section 152 of the Code filed by the defendant being passed, the matter finally had come before the lower appellate court. 21. It is the trite law as has been also said in case of Bhavan Vaja and Others Vrs. Thereafter, necessary order allowing the petition under section 151 read with section 152 of the Code filed by the defendant being passed, the matter finally had come before the lower appellate court. 21. It is the trite law as has been also said in case of Bhavan Vaja and Others Vrs. Solanki Hanuji Khodaji Mansang and Another; AIR 1972 SC 1371 , that the Executing Court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true import or effect of that decree for construing it. It can and in appropriate cases, take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree, the court often has to ascertain the circumstances under which those words came to be used. This has been said to be the plain duty of the Executing Court and in case said court fails to discharge that duty in a plain and simple manner, it can be said that the court failed to exercise the jurisdiction vested in it. The execution court’s jurisdiction does not begin with merely looking at the decree as it was finally drafted. In the said exercise, the courts mind should not be influenced by the words of the decree under execution 22. In the instant case, the trial court has not mentioned anything regarding realization of a sum of Rs. 7,700/- and that has been found to be an error in ascertaining the finding of the trial court since the plaintiff has been found to be in possession of the suit land and house so mortgaged to her and pursuant to that. Said transaction has thus been construed to be an usufructory mortgage. For the said view, it has derived, support from the admitted case as also the conclusion of the trial court that the money given by the plaintiff to the defendant for the purpose of mortgage was therefore not to carry any interest which was agreed upon to be adjusted towards the rent for such occupation of the house. This view on proper analysis of the findings is not found to be a flawed one. This view on proper analysis of the findings is not found to be a flawed one. In that view of the matter, when the lower appellate court has held that the trial court ought to have stated that and indicated it in the decree with regard to realization of a sum of Rs. 7,700/- from the defendant as mortgage dues under the usufructory mortgage by taking note of provision of section 17 of the Odisha Money Lenders Act for the purpose, this Court is unable to accord any disapproval to the same which appears to have been duly taken into account by the lower appellate court. Examining the matter from all angles, this Court thus is not in a position to answer said substantial question of law that the exercise of power by the lower appellate court has been beyond the legal bounds of the provision of section 152 of the Code. This answer to the substantial question of law under item no. (i), accordingly provide the answer to the substantial question under item no. (iv). 23. Next going to the substantial questions of law under item no. (ii) and (iii) relating to the purchase of the suit land and house by the plaintiff in an auction held in another execution case, it may be noted first that the plaintiff was in possession of the property as a mortgagee and therefore with that right as such coupled with other proven conditions, the mortgage has been found to be an usufructory mortgage. At the time, the plaintiff claims to have purchased the suit land and house in the auction held in another execution proceeding, the nature of possession of the suit land and house was the very same as it was from the beginning in the hands of the plaintiff in view of the fact that the decision of the suit was staring at her face for satisfaction. The subsequent acquisition from another source be it in respect of the same subject matter does not go to change the nature of possession in the hand of plaintiff so long as the earlier decree remains undischarged. Had it been a case of purchase of the suit land and house by a third party to the prior litigation, the matter might have stood to have been viewed from a different angle. Had it been a case of purchase of the suit land and house by a third party to the prior litigation, the matter might have stood to have been viewed from a different angle. But here the sale in favour of the plaintiff in that auction cannot go to discharge her liability as per the decision in the earlier suit filed by the admitted owner. Said action of purchase has to run with the risk and sufferance of the decision of the prior round of litigation between the plaintiff and defendant concerning the same subject matter and it cannot render the decree infructuous being so discharged. In that view of the matter, the plaintiff’s claim of title over the property in question on the strength of her so called purchase in the auction held in the Execution Case No. 10 of 1987 arising out of Money Suit No. 73 of 1987 has to be taken to be invisible in the eye of law for the present. Moreover in so far as the present proceeding is concerned, in any case, when the property has remained in the hands of the plaintiff, the defendant cannot be denied with the execution of the decree and such acquisition of fresh title if any as is claimed by the plaintiff has to stand to the sufferance of the decree of the earlier lis under execution. The said substantial question of law thus gets answered against the claim as laid by the plaintiff. The aforesaid discussion and reasons thus provide answers to the substantial questions which run against the claim of the appellant. 24. Resultantly, the second appeal stands dismissed. No order as to cost.