An executing court cannot question the merits of a decree; objections to execution must be based on jurisdictional issues or invalidity, not merit. Res judicata bars successive objections.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite parties.

2. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 20.05.2023 passed by learned Munsif, Koderma in Execution Case No.05 of 2013 by which the objection filed by the judgment debtors in the execution case has been rejected.

3. Mr. Amar Kumar Sinha, learned counsel appearing for the petitioners submits that the petitioners herein are the judgment debtors. He submits that the plaintiffs/opposite parties have instituted Title Suit No.21 of 2007 in the Court of learned Munsif, Koderma against the defendants praying therein a decree for declaration of their right, title, interest and confirmation of possession over Schedule-A lands and plaintiffs have also claimed declaration that the registered sale deed dated 06.09.2000 executed by the defendant No.1 in favour of defendant Nos.2 to 4 be declared void ab-initio, illegal and not binding upon the plaintiffs and prayer was also made for grant of injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs over the suit lands.

4. He submits that the decree was passed in that case by judgment dated 20.03.2009 against that the petitioners have moved in the higher court by way of filing Title Appeal No.19 of 2010 which was further dismissed on the point of limitation against which the Second Appeal No.136 of 2013 was filed before this Court which was dismissed by order dated 26.10.2018. He submits that the Execution Case No.05 of 2013 was instituted by the plaintiffs/decree holders before the learned Court in which the objection has been filed which has been rejected by the learned Court. He submits that there is no decree with regard to the recovery of possession and in spite of that the learned Court has wrongly passed the said order of removing the structure and handover the possession to the plaintiffs. On this ground, he submits that the learned Court has erred in passing such order and in view of that, the order may kindly be set aside.

5. Mr. Bharat Kumar, learned counsel appearing for the opposite parties opposes the prayer and submits that up to the second appeal, the petitioners/judgment debtors have already lost and prior to filing of the present objection earlier objection was filed on 05.02.2018 which was rejected by order dated 03.05.2019. He submits in view of that the learned executing court has passed the order issuing of the writ, however, again the second objection has been made and in view of that it is barred by principles of res judicata. He submits that even in the execution case the principles of res judicata apply. He further draws the attention of the Court to paragraph Nos.8 and 9 of the counter affidavit and submits that during the pendency of the suit illegally construction has been made after the decree and in view of that the learned Court has rightly passed the order. On this ground, he submits that there is no illegality in the impugned order.

6. Admittedly, the Title Suit No.21 of 2007 was instituted by the plaintiffs/opposite parties which was decreed by judgment dated 20.03.2009 in favour of the plaintiffs and against that the petitioners/defendants have preferred the title appeal which was dismissed on the point of limitation and against that the second appeal has been preferred before this Court which was further dismissed by order dated 26.08.2018. In light of that Execution Case No.05 of 2013 was instituted in which the petitioners have already filed a petition earlier of objection which was rejected by the learned