An executing court cannot go behind the decree, and in the absence of a successful challenge to the decree, no objection can be raised in execution.

Mukta Gupta, J.

1. The Petitioner Inder Kumar Gupta filed a suit for possession, permanent and mandatory injunction and for recovery of damages against his brother Sumer Chand Gupta being Suit No. 72/06/96 before the learned Civil Judge which was decided in favour of the Petitioner/Plaintiff on 12th March, 2008. By the judgment and decree it was held that the Petitioner/Plaintiff was entitled to possession of the suit property, that is, 7609/2, Prem Nagar, Delhi-110007 and the Respondent/Defendant being an illegal occupant of the suit property, he was liable to pay damages for the period from 8th June, 1996 to 7th July, 1997 and till the vacant possession is handed over @ Rs. 1,000/- per month. It was further clarified that by way of judgment, no declaration with regard to the ownership of the suit property was passed in favour of the Petitioner/Plaintiff. A decree of permanent injunction was also passed in favour of the Plaintiff and against the defendant restraining the Defendant from creating any third party interest or parting with possession.

2. First appeal filed by Sumer Chand Gupta against the judgment and decree dated 12th March, 2008 was dismissed on 6th October, 2008 having been filed beyond the period of limitation. Sumer Chand Gupta filed RSA No. 7/2010 before this Court which was dismissed on 6th May, 2010 observing that no interference was warranted in the appellate order. Since the appeal by Sumer Chand Gupta was filed belatedly on 23rd July, 2008, Inder Kumar took over the possession of the suit premises from the Respondent in the execution petition.

3. On 26th July, 2010 Sumer Chand Gupta filed objections under Order XXI Rule 58 CPC read with Section 47 CPC in Execution Petition No. 159/2008 filed by Inder Kumar which was pending for the recovery of the damages. Two pleas were taken in the Objection Petition, that is, in the judgment and decree Inder Kumar was directed to deposit the court fee and he having failed to comply with the said order, he was not entitled to execution and secondly that since the suit for partition between the parties was already pending, till the decision of the said suit the decree holder cannot recover the damages from the judgment debtor and thus the remaining portion of the decree, that is, qua damages was liable to be stayed till the decision in the suit for partition.

4. As regards the first objection of the court fee, vide order dated 29th July, 2010 the learned Trial Court held that the suit was decreed on 12th March, 2008 and on 15th July, 2008 the Plaintiff/the Decree Holder paid a sum of Rs. 1,400/- as Court fee with regard to the future damages. Thus the objection of Sumer Chand on this count was dismissed. The objection petition which was still pending on the second count was dismissed vide order dated 29th July, 2010 by the learned Civil Judge. Against the order dated 29th July, 2010 dismissing the objections Sumer Chand filed an appeal before the learned Additional District Judge which was allowed vide the order dated 28th April, 2011 and the review application filed by Inder Kumar was dismissed vide order dated 2nd April, 2014. The orders dated 28th April, 2011 and 2nd April, 2014 are impugned in the present petitions.

5. Before adverting to the contentions of the parties, one more fact which is relevant to be noted in the proceedings inter se the parties, who are siblings, is that a probate petition was filed by Inder Kumar being Probate Case No. 138/2007 seeking grant of probate of Will dated 25th January, 1973 executed by the mother late Kasturi Devi whereby she bequeathed all her movable and immovable properties on Inder Kumar. Vide the judgment dated 7th August, 2008 the said probate petition was dismissed as no copy of the Will was filed along with the petition rather a photocopy was filed as the Petitioner was not in the possession of the original Will which according to him had been filed in the office of Municipal Corporation of Delhi while applying for