The executing court cannot go behind the decree.

JUDGMENT

Prathiba M. Singh, J. - This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court.

2. The present Execution First Appeal has been filed seeking the following reliefs:

"a. pass an order for handing over of the possession of the suit property to the appellant which has been taken away from the appellant wrongly thereby setting aside the impugned orders dated 08.02.2019 and 22.3.2019;

b. pass an order giving direction to the concerned executing Court not to execute the above said impugned decree dated 28.10.2016 which is nullity and alternatively/consequentially the impugned decree dated 28.10.2016 may kindly be set aside;

c. pas any other appropriate order/direction which this Hon'ble Court may deem fit in the facts and circumstances of the case."

3. The appeal arises out of the judgment and decree dated 28th October, 2016 passed by the ld. ADJ-05 (West), Tis Hazari Courts, in CS No. 12382/16 titled Rajesh Kumar v. Shri Sanjay Kumar, which was sought to be executed in Execution Petition No. 659/2017, before the Court of the ld. ADJ-03, West District, Tis Hazari Courts, Delhi.

4. None appears for the Appellant. There has been no appearance since the last three days i.e., 24th November 2020, 29th January 2021 and 5th October 2021. Accordingly, this Court is proceeding to pass orders on the basis of the material on record.

5. A perusal of the present appeal shows that in effect what the Appellant is intending to do is to challenge the original judgment and decree which was upheld by this Court vide a judgment dated 1st June, 2018 in RFA 249/2017 titled Sanjay Kumar v. Rajesh Kumar. Paragraph 6 of the grounds that have been urged in the present appeal reads as under:

"6. That earlier the Appellant preferred appeal before the Hon'ble High Court of Delhi from the above said impugned decree and Judgment but the same was dismissed by the order dated 01.06.2018 as the Hon'ble Court could not notice that the suit property is a licensee property which was allotted to one stranger and never got mutated in favour of any of the parents of the parties and the same (suit property) is still under the ownership of DUSIB being the licensee property."

6. Further, the reliefs sought in this appeal, extracted above, also clearly suggest the present appeal is merely an attempt to overturn the original decree that was upheld by this Court. Specifically prayer (b) of the reliefs sought in the present appeal seeks that the decree dated 28th August, 2018 ought not to be executed, and hence the orders dated 8th February, 2019 and 22nd March, 2019 also ought to be set aside.

7. The original judgment/decree dated 28th October, 2016 was upheld by this Court vide judgment dated 1st June 2018 in RFA 249/2017, in the following terms:

"13. A perusal of the documents and the evidence on record clearly shows that the mutual agreement entered into by the mother along with the three sons is fully admitted by both the Plaintiff and the Defendant. In fact, the said mutual agreement has been admitted by the Defendant in the earlier suit which was filed by him seeking permanent injunction. In the said suit, the Defendant not only admits the mutual agreement dated 21st October, 2009 but also admits all the three separate portions as has been extracted in paragraph 2 above, have fallen into the share of all the three brothers. In the said suit, the case set up by the Defendant was that the property was leased out to him on a monthly rent. In the said suit, the Plaintiff herein took the plea that the rent of Rs.1,000/- was incorrect and that the suit property Y-317 was capable of fetching rent of Rs.5,000/- to Rs.10,000/- per month. In the said suit, the Plaintiff herein gave the following statement:

"I am defendant in the present matter. I have already filed a suit for possession, permanent injunction and mesne profits against the plaintiff which is pending adjudication before the court of Shri Bhupesh Kumar