The Executing Court must execute decrees as per established judgments and cannot reconsider issues already decided.

JUDGMENT :

Bharat P. Deshpande, J.

Rule, Rule is made returnable forthwith. The matter is taken up for final disposal with consent.

2. Heard Ms. Maria Correia, learned Counsel for the petitioner and Mr. Cleofato Almeida Coutinho, learned Counsel for the respondent.

3. The present petition is challenging the order dated 23/02/2023 passed by the Civil Court in Regular Execution Application No.1/2022 thereby directing the petitioner to disclose assets and liabilities on oath under Order XXI Rule 41 CPC for the satisfaction of the decree.

4. Ms. Correia appearing for the petitioner would submit that the decree was passed with regard to handing of possession and arrears of rent. The possession of the property is already handed over, however, execution application is filed by the Decree holder /respondent to recover arrears of rent and mesne profit. She submits that the petitioner has already paid /deposited rental amount of Rs.1,43,000/- into the account of the decree holder and presented the proof, however, the learned Executing Court failed to consider such aspect and even though there are no dues pending to be recovered from judgment debtor, directed the petitioner to file an affidavit disclosing assets for the purpose of attachment. Ms. Maria Correia would submit that the impugned order is clearly perverse and without considering the contentions raised by the petitioner and therefore interference is required.

5. Ms. Maria further submits that as far as aspect of mesne profit is concerned, an inquiry is necessary however no such order is passed.

6. Per contra, Mr. C. Coutinho would submit that the Executing Court has rightly exercised jurisdiction as the petitioner/Judgment Debtor is trying to raise the issue which has been concluded by two Courts. He submits that an attempt on the part of petitioner is only forcing the Executing Court to go behind the decree which is not permissible. He placed reliance in the case of Pradeep Mehra v. Marijivan J. Jethwa (Since Deceased thr.Lrs) and others [2020 (11) JT 39].

7. Rival contentions fall for consideration.

8. The petitioner is admittedly a Judgment Debtor whereas the respondent is a Decree holder. The execution application is filed for the purpose of recovery of the arrears of Rs.1,43,000/- as awarded by both the Courts. Admittedly, possession of the property is already handed over to the Decree holder, however, recovery of the amount of arrears of rent is still a question which has to be decided by the Executing Court.

9. The contention of Ms. Correia is that arrears of rent of Rs.1,43,000/- from 2019 to 2020 is already paid by the Judgment debtor. In this respect, she would submit that the reply filed by the judgment debtor /petitioner to the application for disclosure of assets on affidavit clearly shows that such amount was paid on three different occasions to the Decree holder as mentioned in paragraph 4 of the reply. Accordingly to her, such statement which is supported by the Bank records wherein the amount has been transferred in the name of decree holder on three occasions stands established. According to her, except the aspect of mesne profit, the other two issues are already resolved. Thus there was no occasion for the trial Court asking the petitioner to file an affidavit disclosing assets.

10. No doubt the Bank statement produced along with the reply shows that by three different transactions it is proved that the amount has been transferred in the account of decree holder. However, it is also a fact that the suit filed by the respondent/decree holder and the decree drawn therein shows that the petitioner/defendant/judgment debtor is directed to pay Rs.1,43,000/- towards the rent from 01/04/2019 till 28/02/2020. The Decree was passed on 27/11/2021 whereas three transactions which the petitioner placed reliance upon are dated 16/04/2019, 10/06/2019 and 05/07/2019. Thus, it is clear from the record that the payment which the judgment debtor is now claiming as the amount paid to the