1983 Supreme(Gau) 55

GAUHATI HIGH COURT
S. M. ALI, J.
Mustt.Kitabjan Bibi and others -Appellant
Versus
Ramlal Durgadutta -Respondent
Civil Revn. No. 150 of 1982
Decided On : 05-04-1983

The executing Court cannot go behind the terms of the decree and order delivery of possession of a different land whose three boundaries coincide with the three boundaries of the land decreed in favor of the plaintiff-opp.

Headnote:

EXECUTION OF DECREE - DELIVERY OF POSSESSION - DECRETAL LAND NOT LOCATABLE - EXECUTING COURT CANNOT GO BEHIND DECREE AND ORDER DELIVERY OF POSSESSION OF DIFFERENT LAND WITH THREE BOUNDARIES COINCIDING WITH DECRETAL LAND.

Fact of the Case:

Plaintiff obtained a decree for declaration of title and recovery of possession of 3 kathas of land out of 1B, 18L. covered by Dag No. 958 under Patta No, 775 of Nowgong town. The decree was put into execution, but the Amin found that the judgment-debtors were not in possession of the land covered by Dag No. 958. The decree-holder moved the Court for delivery of possession of the land of Dag No.957 according to the boundaries. The learned Asstt. District judge issued a commission for determining the location of the decretal land. The Commissioner submitted his report and it was accepted by the Court. The learned Court directed delivery of possession of the land of Dag No. 957 to the decree-holder.

Finding of the Court:

The executing Court should have stuck to the terms of the decree. The land under Dag No. 958 has a distinct location which has been decreed in favor of the decree-holder. The learned Court adjucating the suit decided it with respect to the land of Dag No. 958. At the time when the suit was decreed that land of Dag No. 957 was very much in existence with a different location. The decretal land had the following boundary description: North- Municipal Road. South - Noor Khalifa. East - Hafijuddin. West - Abdul Latif. The Commissioner who surveyed the decretal land as per writ of the Court found a land measuring 3 Kathas under present settlement Dag No. 1259 having the following boundaries: North- Municipal Road. South - Smt. Paribanu, wife of Noor Mahammad East - Mahamad Begum, wife of M.R. Islam, Abu Fazal, Md. Nurul Hussain and Hafijuddin and Ors. West - Abdul Latif. The learned executing Court ordered for delivery of possession of this land but there is no report of the Survey Commissioner that dog No. 958 957 has been changed to dog No. 1259. He recorded no nexus between the old dags and the present dags which he mentioned in the report. Therefore the submission of the learned counsel that three boundaries are identifiable with regard to decretal land and that when the quantum of the decretal land also is the same as the quantum of dog No.1259 (taking for arguments sake that it is the same old Dag No. 957), then in that case the eastern boundary may be ignored and that the land may be identified as the land of the decree, is not acceptable inasmuch as there is no identity of three boundaries as pointed out above. Moreover, this land has a different plot number with a different location.

Issues: Whether the executing Court can go behind the terms of the decree and order delivery of possession of a different land whose three boundaries coincide with the three boundaries of the land decreed in favor of the plaintiff-opp?

Ratio Decidendi: The executing Court cannot go behind the terms of the decree and order delivery of possession of a different land whose three boundaries coincide with the three boundaries of the land decreed in favor of the plaintiff-opp. The decree has a sanctity of its own and there cannot be any fishing in finding the decretal land at the execution stage. The terms of the decree cannot be disturbed by a Commissioner so as affect the right of the judgment-debtor with regard to a different land. The executing Court is not an automaton and it can exercise its power to properly construe the decree in order to find out the true import and effect of the same, so that it can proceed to execute the decree in its true and correct perspective giving full effect to the same and for that purpose the Court can look into the pleadings and judgment. But this does not imply that he will travel outside those materials and give effect to the decree.

Final Decision: The revision petition is allowed and the impugned order of the learned executing Court is set aside.