The Section 47 of Code of Civil Procedure the executing court is required to look into the questions relating to the execution, discharge or satisfaction of the decree. Such questions are to be adjudicated by the executing court and not by a separate suit. This honorable judgement was passed by High Court of Shimla in the case of Sh. Parveen Kumar & ors. Versus Sh. Choudary Ram & ors. [CMPMO No. 341 of 2014] by Ms. Justice Jyotsna Rewal, Judge.
The objections preferred by the judgment debtors to the execution petition filed by the decree holders had been partly allowed by the learned Executing Court vide order, which is impugned herein by the decree holders. In terms of this order, instead of actual possession, only symbolic possession of the suit land had been ordered to be delivered to the decree holders. A civil suit was instituted by the defendants. The plaintiffs asserted themselves to be owners along with other co-sharers of the suit land comprised in Khata No. 39 min, Khatauni No. 81, Khasra No. 78, measuring 0-00-55 HM, situated in village Tutwan, Sub Tehsil Fatehpur, District Kangra, on the basis of jamabandi for the year 1989-90. The allegations in the plaint were that the defendants were neither the owners nor the tenants over the suit land. Yet they had forcibly taken over the possession of the suit land in an illegal and unlawful manner. Therefore, decree for vacant possession of the suit land was prayed for. Learned trial Court decreed the suit of the plaintiffs ex-parte against the defendants for vacant possession of suit land. Aggrieved against this order passed by the learned executing court on 29.8.2014, the decree holders have preferred instant petition under Article 227 of the Constitution of India.
The court opinioned that, “There is no dispute qua the settled legal position that the executing court cannot go behind the decree and has to execute it as its stands. However, in terms of Section 47 of Code of Civil Procedure the executing court is required to look into the questions relating to the execution, discharge or satisfaction of the decree. Such questions are to be adjudicated by the executing court and not by a separate suit.”
The court dismissed the petition stating that, “the judgment debtors/objectors have proved on record that they had become co-sharers of the suit land subsequent to passing of the decree sought to be executed. The suit land is now jointly owned by them along with various co sharers. In such situation, their possession over the suit land cannot be treated as illegal and, therefore, they cannot be ousted from such possession. The judgment debtors/objectors have purchased shares in the suit land from the other co-sharers. Their possession of the suit land is now in a capacity different from the one in which they had suffered the decree for possession.”
