An appellate court cannot modify parts of a decree not challenged in the appeal; the executing court retains authority to enforce such unchallenged decrees.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

Heard, learned Counsel for the parties.

1. Petitioners are the judgment-debtors and the instant civil miscellaneous petition has been filed for quashing the order dated 19.04.2025 passed by the learned Civil Judge (Junior Division), Giridih in Execution Case No. 03 of 2020 (Annexure-7), whereby and whereunder, petition under Section 47 of the CPC has been rejected.

2. Plaintiffs filed the suit for the following reliefs:

a. Declaration of right, title and interest over Schedule-B lands being part and parcel of Schedule-A lands.

b. Possession of the Plaintiffs over the suit lands be confirmed.

c. Khas vacant possession of the suit lands be recovered and delivered to the Plaintiffs by demolishing structures and constructions at the cost of defendants which have been raised over a portion of Schedule B lands.

d. That an order of temporary injunction be passed, and the defendant be restrained from raising constructions or structures over Schedule-B lands or any part or parcel thereof, or from changing nature, and physical feature of this suit, land, and the same be made permanent on adjudication.

3. Schedule-A land comprises an area, measuring 0.40 Decimals within Police Station –Gawan, Mouza- Amtaro, Khata No.1, Khewat No.1, Touzi No.11, Thana No.185 of which at present, 36 Decimals was in possession of plaintiffs. Schedule B Land measures 0.18 decimals which was part and parcel of Schedule-A lands.

4. Plaintiffs’ suit was partly decreed vide judgment dated 09.10.2009 with respect to 18 decimals of land under khata no.1 plot no.127.

5. Accordingly decree was drawn declaring the plaintiffs to be absolute owners with all right, title and interest over Schedule-B lands being part and parcel of Schedule-A lands. The position of plaintiffs over the suit lands was confirmed. The other reliefs with regard to recovery of khas vacant possession and permanent injunction was also allowed.

6. Despite the suit having been decreed in favour of the plaintiffs, defendants surprisingly preferred Civil Appeal No.10 of 2010 on the ground that suit was only partly decreed for 18 decimals under Khata No.1, Plot No.126.

7. The said Appeal was allowed on contest and the judgment as well as decree passed by the learned Trial Court was set aside.

8. Learned First Appellate Court at Para-11 of the judgment recorded a finding that the plaintiffs had acquired their right, title and interest as well as possession over the entire lands mentioned in Schedule-A i.e. area measuring 36 decimals of Plot No.127 and the defendants had no right, over the suit land on the basis of his alleged sale-deed which was never acted upon. It was also noted that the defendant(s) had never challenged sale-deed of plaintiffs bearing No.15832 dated 29.07.1966.

9. Defendants/Petitioners being aggrieved by the judgment and decree of the First Appellate Court preferred the Second Appeal being S.A. No.53 of 2021 which was dismissed by observing with the following observations at Paras 6 & 7 :-

6. There is no order passed by the learned First Appellate Court that the suit of the plaintiff has been decreed. Rather, the entire judgment and decree passed by the Trial Court has been set aside.

7. Learned counsel for the appellants abandons the grounds mentioned in the instant Second Appeal and submits that since the suit has not been decreed so, the defendant is not aggrieved by the judgment and decree passed by the learned first appellate Court and as the appellate court by its judgment has set aside the judgment and decree passed in Title Sui