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ARUN KUMAR JHA
Abdul Badud @ Md. Badud, Son of Late Attiullah – Appellant
Versus
Abdul Quayum Son of Late Mohibul Haque – Respondent
JUDGMENT :
The petitioner has been filed the instant petition under Article 227 of the Constitution of India for quashing the order dated 13.02.2018 passed by learned Sub Judge-8, Vaishali at Hajipur in Execution Case No. 4 of 2017 whereby and whereunder the learned executing court rejected the application filed for dismissal of the execution case.
2. The conspectus of the case, as it emerges from the record, is that the petitioner is one of the judgment-debtors and respondent no. 1 is the decree-holder in Execution Case No. 4 of 2017. It appears from the records that the respondent no. 1 filed Title Suit No. 162 of 1998 against the petitioner and respondents 2nd and 3rd sets or their ancestors with a prayer for declaration of his title and possession over 3 acres 43 decimals of land described in Schedule 1 of the plaint apart from other reliefs. Subsequently, by way of amendment, realization of mesne profit was also added as one of the reliefs. During pendency of the suit, some defendants died and their heirs were substituted. After service of notices, defendants appeared and three sets of written statements were filed on behalf of the defendants. Title Suit No. 162 of 1998 was decr
A decree remains executable even if some defendants are deceased, provided their heirs are on record and did not contest the suit.
Non-executability of decree – If decree is not nullity, executing court is required to execute such decree unless it has been set aside by a competent court in an appropriate proceeding.
The executing court is bound by the decree's terms and cannot entertain objections that do not pertain to jurisdiction, even if the decree is allegedly erroneous.
One joint decree-holder may apply for execution for the benefit of all unless expressly stated otherwise; courts can assess intent beyond strict decree wording.
The executing Court cannot go behind the decree and must execute it according to its tenor, and cannot entertain objections to the decree's correctness in law or on facts, unless it is a nullity or p....
Execution of decree – Execution can proceed even if formal decree is not drawn – Quoting a wrong statutory provisions does not create a bar and stand in way of considering application.
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