Point of Law : Executing Court cannot go beyond the decree except when the decree is nullity or is without jurisdiction as Executing Court has no jurisdiction to modify the decree, but it has to execute a decree as it is.

ORDER :

Petitioners herein are Judgment Debtors (hereinafter referred to as ‘JDs’), who have suffered preliminary decree dated 26.06.2002 which was amended on 08.08.2002 and it was made final by passing final decree dated 26.06.2007 against petitioners-JDs alongwith another JD Janki Khanna (now deceased), and in favour of respondent- Decree Holder (hereinafter referred to as ‘DH-Bank’), whereby a preliminary decree for recovery of the sum of Rs.3,56,989/- with costs and interest @ 9% per annum from the date of filing of the suit till realization of the decretal amount has been passed with further condition that in case of failure on the part of JDs to pay the amount in question within 60 days from the date of passing of judgment, DH-Bank will also be at liberty to put the property to sale as described in para No.8 of the plaint so as to realize the decretal amount in accordance with law. Description of mortgaged property has also been given in the Decree Sheet.

2. On failure of JDs to make payment of decretal amount, DH-Bank has initiated execution proceedings against the JDs by filing an application under Order 21 Rule 66 read with Section 151 Code of Civil Procedure (CPC) for proclamation of sale in execution of judgment and decree by giving details of mortgaged property therein which was mentioned in judgment and decree. At the time of filing this application, amount recoverable was calculated by the Bank, as on 31.01.2008, as Rs.7,80,731/-. Suit was filed by DH-Bank originally against present petitioners and one Ram Lubhaya Khanna. In Execution Petition, petitioners herein are JD Nos.1 and 3 whereas, for death of Ram Lubhaya Khanna, his wife Janki Khanna, being his legal heir, was arrayed as defendant No.2 and thus was JD No.2. JD No.3 is one of the Directors of JD No.1. Mortgaged property belongs to JD No.2.

3. Objection petition filed by JDs was dismissed on 21.04.2010. Thereafter vide order dated 03.07.2010, sale warrant of mortgaged property was issued, but for want of filing of Jamabandi, the said warrant could not be issued till 28.04.2011. In the meanwhile, on 28.05.2011, it was informed that JD No.2 Janki Khanna had expired and this fact was brought in the notice of Executing Court on 28.05.2011. Whereupon, execution petition was adjourned for taking consequential steps for her death. On 30.11.2011, it was stated on behalf of DH-Bank that legal representative of JD No.2 was already on record being JD No.3 and, therefore, estate of deceased was duly represented by JD No.3. The said statement was made in presence of learned counsel representing JD Nos. 1 and 3.

4. Thereafter, JD Nos. 1 and 3 did not appear and were proceeded ex-parte vide order dated 07.01.2012. The case was listed for numerous dates and ultimately on 09.11.2012 property of JD No.3 Sanjeev Malhotra was ordered to be attached by issuing necessary warrants of attachment. Since then, till 18.05.2015, no one had appeared on behalf of JDs and on 01.04.2015 name of JD No.2 Janki Khanna was ordered to be deleted on the basis of statement of learned counsel for DH-Bank, whereby it was reiterated that legal representative of JD No.2 was already on record as JD No.3. For that date, JD Nos. 1 and 3 were duly served, but no one had appeared for them and warrant of sale of property of JD No.3 was issued.

5. On 18.05.2015 JD No.3 had put in appearance in the Court alongwith counsel and had given statement on his behalf and also on behalf of JD No.1 that he will pay entire amount alongwith interest to satisfy judgment and decree within two months by depositing entire due amount in the Court. His statement to this effect was also recorded separately and was taken on record. Since JD Nos. 1 and 3 were ready to pay the amount of decree alongwith interest, warrant of sale was recalled unexecuted. On that date, application was also filed on behalf of JD No.3 under Order 21 Rules 58 and 59 CPC and case was adjourned for 25.05.2015. On 25.05.2015, case was adjourned on request