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2025 DIGILAW 859 (JHR)

Hiraman Prasad, son of Shivlal Sao v. Arjun Prasad, son of Shivlal Sao

2025-03-11

SANJAY KUMAR DWIVEDI

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JUDGMENT : (Sanjay Kumar Dwivedi, J.) Heard learned counsel appearing for the petitioner and learned counsel appearing for the sole opposite party. 2. This petition has been filed under Article 227 of the Constitution of India wherein prayer is made for setting aside the order dated 03.02.2024/05.03.2024 passed by learned Civil Judge (Junior Division), Hazaribag in Execution Case No.04 of 2023 contained in Annexure-3 arising out of Title Suit No.81 of 2022. 3. Mr. Amar Kumar Sinha, learned counsel appearing for the petitioner submits that the petitioner is the plaintiff in said Title Suit No.81 of 2022 which has been instituted as per direction upon the defendant to execute and register sale deed with respect to the lands measuring an area of 0.06 acres appertaining to R.S. Plot No.45 of Khata No.196 situated at village – Cantonment, Thana No.157, District – Hazaribag along with pucca house standing thereon. He submits that the said suit was contested and it was decreed in favour of the plaintiff on contest and it has been ordered and decreed that it is allowed on contest without cost in favour of the plaintiff and defendant was directed to execute the sale deed for suit land mentioned in Schedule-A in favour of the petitioner/plaintiff within three months failing which the same will be executed through the process of Court and possession be also delivered through Court. He further submits that against the said judgment dated 09.01.2023 of the learned Court, the judgment debtor has not preferred any appeal. Thereafter the execution case No.4/2023 was instituted by the petitioner/plaintiff in which the learned Court has issued the direction by the order dated 07.10.2023 directing to deposit the cost and the Nazir was authorized to get the sale deed executed in favour of the decree holder on behalf of the Court. He submits that later on 10.10.2023, the cash was deposited which has been recorded in the order dated 10.10.2023. He then submits that by the order dated 03.02.2024/05.03.2024 all of a sudden the learned Court has passed the order directing the petitioner/decree holder to file a petition before the Deputy Commissioner, Hazaribag for removal of the prohibition upon the suit land, thereafter the Court will pass appropriate order for order of the same. He then submits that by the order dated 03.02.2024/05.03.2024 all of a sudden the learned Court has passed the order directing the petitioner/decree holder to file a petition before the Deputy Commissioner, Hazaribag for removal of the prohibition upon the suit land, thereafter the Court will pass appropriate order for order of the same. He submits that the said is not in accordance with law and it is well settled that once the decree is passed, the executing court has got no power to alter the decree. He submits that once the judgment and decree attained the finality the learned Court was bound to execute the same, however, the wrong order has been passed only on the ground that under Section 22A of the Registration Act in light of letter of Sub Registrar, the land is restricted to be sold. 4. Learned counsel appearing for the judgment debtor/opposite party submits that the learned Court has passed the said order and he has nothing to say on the same. 5. It is an admitted position that the Title Suit No.81 of 2022 was instituted for direction to execute the sale deed which was decreed by judgment dated 09.01.2023 in favour of the petitioner/plaintiff and the direction has been issued to the judgment debtor/opposite party to execute the same within three months failing which the same will be executed through the process of Court and possession be also delivered through Court even it was not complied with the Execution Case No.4 of 2023 was instituted by the petitioner/plaintiff herein and the learned Court by order dated 07.10.2023 has been pleased to direct to deposit the cost and the Nazir was authorized to execute the deed in favour of the decree holder on behalf of the Court and further all of a sudden on 03.02.2024/05.03.2024 the learned Court directed the petitioner to move before the Deputy Commissioner, Hazaribag for taking permission for removal of the same thereafter the same will be executed by the Court. 6. The power of executing Court as has been provided under Order XXI of Code of Civil Procedure contains the provisions of the execution of the decrees and orders. The executing Court has only to execute the decree rendered by the Court of first instance without deviating therefrom unless reversed by the higher forum. 6. The power of executing Court as has been provided under Order XXI of Code of Civil Procedure contains the provisions of the execution of the decrees and orders. The executing Court has only to execute the decree rendered by the Court of first instance without deviating therefrom unless reversed by the higher forum. It is further well known that if the judgment debtor is having any objection regarding the decree he can invoke the provision of Section 47 or under Order XXI Rule 97, 98 and 99 and Section 47 of the CPC confers power upon the executing court to determine a question in this if any objection is being raised and further under the provisions of Order XXI, Rule 97, 98 and 99 the objection can be filed to be decided by the executing court and that is required to be decided once a petition is filed and that provision is made to decide the same as a contesting suit. If the judgment debtor has not filed any petition for objection and not raised any objection in view of either of the provisions and in light of that the executing court power is very limited and it has to only determine the objection and execute the decree. The reference may be made to the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. reported in (1970) 1 SCC 670 , wherein at paragraph No.6 it has been held as under :- “ 6. A court executing a decree cannot go behind the 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 in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.” 7. It is clear from the above judgment that a decree has to be executed as per its tenor and cannot be deviated but subject to objection which is to be decided by the executing court in the execution proceeding. It is clear from the above judgment that a decree has to be executed as per its tenor and cannot be deviated but subject to objection which is to be decided by the executing court in the execution proceeding. Admittedly, in the present case the judgment debtor has not preferred any appeal and has also not filed any objection in light of two of the provisions as discussed here-in- above and the learned Court only on a letter of the District Sub Registrar has passed the said order. 8. In view of the above discussion, the said order is not in accordance with law, accordingly the order dated 03.02.2024/05.03.2024 is hereby set aside. 9. The Executing Court will now proceed to execute the same decree in accordance with law. 10. This petition is allowed in above terms and disposed of.