IMPORTANT POINT
Executing court cannot go behind the decree.

JUDGMENT

Uday Umesh Lalit J.

Leave granted.

2. These appeals challenge the order dated 14.1.2010 in CMM No.846 of 2008 and order dated 2.6.2010 in Review Petition No.58 of 2010 arising out of the said order dated 14.1.2010 in CMM No.846 of 2008, passed by the High Court of Delhi at New Delhi.

3. The appellant under an Agreement of sale dated 27.5.1998 had purchased the property described in the document as under:

“Vacant roof of Ground Floor to Top Floor measuring 106 Sq. yds. Out of Property No.1/51, built on Plot No.A/9, out of Khasra No.163 with rights to construct up to Top floor, stairs leading from Ground Floor to Top Floor, situated at Nirankari Colony, Pardhan Marg, Delhi-110009, and bounded as under:-

NORTH: Road below

SOUTH: Other’s property

EAST: Gali below

WEST: Other’s property”

The appellant submits that in pursuance of the right so conferred, she has erected a building and is in enjoyment thereof.

4. On or about 16.8.2001 the Respondent No.1 herein filed Civil Suit No.229 of 2001 in the Court of Senior Civil Judge, Delhi against the Defendant No.1 i.e. his wife and Defendant Nos. 3 to 5 who are relatives of the Defendant No. 1. The present appellant was joined as Defendant No.2. It was submitted in the plaint as under:

“That the defendant No.1 in connivance with defendant No.2 and other defendants encroached upon the property of the plaintiff and took possession of the chhajja and reconstructed it and debarred the plaintiff from taking any air or natural light. The defendant No.1 and 2 are in conspiracy with other defendants to permanently oust the plaintiff from the premises which is in his ownership.

That mischievously the defendant No.1 connived with the other defendants and with the MCD Officials in order to harm the plaintiff and got demolished the second floor, third floor and fourth floor of the said premises. Thus floors are lying in a dilapidated condition. The chhajjas on the first floor, second floor and fourth floor are being in unauthorized occupation of the defendants.”

It was prayed:

“That a decree for mandatory injunction be passed in favour of the plaintiff and against the defendants that the chhajjas occupied by them forcefully and illegally, be handed over to the plaintiff.” The plaint did not give any details or dimensions of the chhajjas, nor did it refer to any plan so that the details or dimensions could be gathered therefrom. But it appears, a sketch was later produced on record.

5. The Appellant was initially proceeded ex-parte vide order dt.20.12.2001 but that order was set aside on 1.8.2002 and the appellant filed her written statement and reply to the application for interim relief. No replication was filed. The suit was dismissed for default on 17.9.2004. Respondent No.1— Plaintiff preferred application for restoration, which was adjourned from time to time for lack of effective service. The suit was later restored on 19.4.2006 when Defendant Nos.1 and 5 appeared in person and submitted that they had compromised the matter and had no objection to the suit being restored. Upon such restoration, the suit was decreed vide judgment dt.7.2.2007 in the absence of the appellant. It was observed by the trial court as under:

“It is pertinent to mention here that defendant Nos.1 and 5 also filed WS but during the pendency of the suit plaintiff and defendant Nos.1 and 5 have reached a compromise. Statements of Defendant Nos.1 and 5 were also recorded separately. Hence, the contents of WS of Defendant Nos.1 and 5 are not reproduced here. It is also pertinent to mention here that defendant No.2 to 4 were proceeded ex-parte by my Ld. Predecessor court on 20.12.2004. It is also pertinent to mention here that suit of the plaintiff was dismissed on 1.9.2004 for non-appearance of the plaintiff. Thereafter, plaintiff filed an application u/o 9 rule 9 CPC on 25.9.2004. Thereafter, notice of this application was sent to defendants but defendant No.2 did not appear despite summons being served which is