Executing Court cannot go beyond the decree and re-examine its correctness.

This Civil Revision Petition is directed against theorder dated 4.2.2005 in E. A. No. 226 of 2004 in EP. No. 301 of 2004 in O. S. No. 134 of 1999 passed by the District Munsif, Gudiyatham, Vellore District, dismissing the Petitionfiled under Section 47 C. P. C. The defendant is the revision petitioner.

2. O.S.No.134 of 1999 was filed by the plaintiff for declaration of his title over the suit property and for delivery of possession and for rendition of accounts for the second item of the property. Accordingto the plaintiff, he had put up a construction in the river poromboke and is in possession of the entire 75’ x 25’ river poromboke, which is forming backyard of hishouse in the second item of the property. The defendant resisted the suit contending thatthe Plaintiff being his elder brother has allowed the defendant to construct a house in the suit properties and enjoy the same for himself and the defendant had discharged all the loans of the plaintiff.

3. In consideration of the evidence adduced by the parties, after full trial, the trial Court/Subordinate Court, Vellore decreed the Suit on 25.3.2002 and ordered delivery of possession. As against that Judgment, no appeal has been preferred by the defendant.

4. Alleging that the Decree isinexecutable, the defendant has filed Petition under Section 47 C.P.C According to the defendant, part of Item No. 2 is in river poromboke andthe decree is inexecutable in view of the nonjoinder of necessary party viz., the Government. Observing that the plea of nonjoinder was not taken in the suit stage, the Executing Court dismissed the petition filed under Section 47 C.P.C. Learned District Munsif observed that if really the defendant was aggrieved, the defendant could have preferred the appeal and the validity of the decree cannotbe agitated under Section 47 C.P.C.

5. Assailing the Impugned Order, learned counsel for the revision petitioner/defendant inter alia raised the following contentions:

Even in the plaint, the second item of property is stated to consist of an underground and also a building to an extent of 75’ x 25’ in the river porombokeand the Plaintiff prayed for declaration of his title and possession of the building for the second item of the property, which is admittedly a river poromboke. Since the Government was not included as a party, the decree is inexecutable.

The plaintiff has not claimed adverse possession over the poromboke property by claiming to be in possession and enjoyment of the property more than 30 years and the Trial Court did not frame any issue on that point and without adjudicating the adverse possession, the Trial Court erroneously passed the decree declaring the plaintiffs title over the poromboke property.

6. Learned counsel for the respondent/plaintiff submitted that the ground alleged in the application ought to have preferred by way of appeal and the executing Court can not go beyond the decree and the Executing Court has rightly dismissed the Application and there is no reason warrantinginterference. It was further submitted that the plaintiff was then in enjoyment of the property by paying “B” Memo and hence there was no necessity to implead the Government as a party. Learned counsel for the respondent has contended that raising objection regarding the non-framing of the issue would not fall within the scope of Section 47 C.P.C. It was further contended that all the points raised ought to have been agitated by way of appeal and not by way of Section 47 C.P. C.

7. In viewof the rival submissions,the following questions arise for consideration:

i. When the Court having jurisdiction over the subject matter passes a decree, can it be resisted at the execution stage by filing application under Section47 C.P.Ce;

ii. Whether non-impleading of the Government as a party renders the Decree nullitye

8. Even at the outset, it is to be pointed out that the plaintiff and the defendant are brothers. Item No. 2 is a housefor which there is a backya