IMPORTANT POINT
Executing court cannot travel beyond order or decree under execution.

JUDGMENT

Mohan M. Shantanagoudar. J.

1. The instant appeal arises out of the order of the High Court of Judicature at Madras dated 10.12.2007 in Civil Revision Petition No. 1007 of 2007, setting aside the order of the City Civil Court, Chennai dated 31.01.2007 in E.A. No. 5750/2003 in Execution Petition No. 1910/1992 in O.S. No. 8664/1988.

2. The brief facts from which this appeal arises are as follows:

The suit temple properties were originally administered by three brothers- Sadhasivamurthy, Balasundaram, and Sundararajan ('original owners'). Vide settlement deed dated 19.09.1947, these original owners endowed the property to the temple. The deed also included a provision that the eldest son of the deceased trustee would become his successor. The genealogy of the family of the original owners is as follows:

3. From 1987-88, three suits relating to the temple properties were filed. Among these, O.S. No. 8664/1988 is relevant to the instant appeal. This suit was filed on behalf of the temple by one K.S. Jaganathan and S. Bhaskaran (Appellant herein) in their capacity as trustees, seeking permanent injunction against Gnanambal and her husband, who were tenants in the suit properties (Respondents 1-7 herein) at that time. One Umapathymurthy (represented by Respondents 8-14 herein) was impleaded in this suit as a defendant. In his written statement, he claimed that he was the eldest son of Sadhasivamurthy and that he had been dispossessed from the trusteeship of the temple by his younger brother, K.S. Sabapathy.

4. By a common judgment dated 09.09.1991, the Trial Court disposed of all the three suits. With respect to the relevant suit (O.S. No. 8664/1988), it gave a finding that the Appellant herein and his uncle, K.S. Jaganathan were the trustees of the temple. To arrive at this finding, the Court relied on documents indicating that the Appellant's father, K.S. Sabapathy was the eldest son of Sadhasivamurthy and the heir to the suit land in terms of the settlement deed dated 19.09.1947. These included the license issued by the Police Commissioner in 1983 showing K.S. Sabapathy as the heir (Ex. B21), electricity card of K.S. Sabapathy (Ex. B22), wedding invitation of Sadhasivamurthy (Ex. B24), license issued by police department for temple celebration (Ex. B25), and the legal heir certificate dated 31.08.1987 issued to Sadhasivamurthy by the Tahsildar (Ex. B26). In holding that the Appellant was a trustee and passing a decree in his favour, the Court rejected the claim of Umapathymurthy that he was the eldest son of Sadhasivamurthy, and consequently the trustee of the temple.

5. In first appeal, the Appellate Court confirmed the judgment and decree of the Trial Court passed in O.S.No.8664/1988. No further appeal was preferred. It is crucial to note that Umapathymurthy was an appellant in the first appeal and had contested it.

6. The decree holders filed Execution Petition No. 1910/1992, for executing the decree obtained by them in O.S. No. 8664/1988. In this petition, the judgment debtors (Respondents herein) filed an execution application (E.A. No. 5750/2003) under Section 47 of the Code of Civil Procedure, 1908 CCPC) against the Appellant and his uncle, seeking dismissal of the execution petition on the basis that the original decree was vitiated by fraud. They alleged that the heir certificate of Sadhasivamurthy furnished by the Appellant (Ex. B26 in the Trial Court record) was falsely prepared and suppressed the name of Umapathymurthy as the eldest son of Sadhasivamurthy.

7. While examining this application, the executing court observed that the judgment debtors had not objected to the heir certificate when it was adduced before the Trial Court. In any case, the Trial Court had