An executing court has the jurisdiction to construe an ambiguous decree by referring to the pleadings and judgment to determine its true import and effect.

JUDGMENT :

S.C. Mohapatra, J,

1. Judgment-debtor is the Petitioner. He was Defendant in the suit for eviction from disputed 'Ka' schedule land of the plaint. In the suit, a survey knowing Commissioner was deputed who reported the disputed land to be of lesser area than what was claimed in the plaint. Trial Court referred to the Commissioner's report in the judgment but directed in the ordering portion that suit is decreed in respect of the 'Ka' schedule land of the plaint. Defendant preferred an appeal in which suit was dismissed. Plaintiff preferred Second Appeal where decree of the trial Court was restored. This is the decree which is sought to be executed.

2. In the execution proceeding, Defendant judgment-debtor chimed that he is not liable to be evicted from the entire 'Ka' Schedule property as described in the plaint but the decree is executable in the maximum only in respect of the area as found by the survey knowing Commissioner. Executing Court having held that it cannot go behind the decree, this Civil Revision has been filed for setting aside the said order.

3. While Mr. R.K. Mohapatra, learned Counsel for the Petitioner submitted that executing Court ought to have looked into the Commissioner's report and the judgments to find out whether the decree relates to the area of land as described in the plaint or to the area as stated by the Commissioner, Mr. S.S. Mohanti, learned Counsel for the opposite party submitted that the decree is so clear that there was no scope for construing the decree.

4. It is not disputed before me that Commissioner in his report stated the encroachment to be of a smaller area than what is claimed in the plaint. It is also not disputed that trial Court did not reject or disbelieve the Commissioner's report although it discussed the same. In such circumstances the dispute centers round the area in respect of which execution is to be effected by the executing Court.

5. Under Order 20, Rule 6, CPC decree is to agree with the judgment since decree is a formal expression of adjudication which is made in the judgment. It goes without saying that the various issues are answered in the judgment and the order is passed which is the formal expression of adjudication. Determination of the question whether the decree is in accordance with the judgment does not amount to going behind the decree. It is only interpretation or construction of the decree. Where there is controversy between the parties as to what is the decree, Court has to go into the documents produced by the parties to find out the nature of the decree. If after giving opportunity to parties, it comes to the conclusion that the decree is in confirmity with the judgment, it shall proceed to execute the decree. If it finds that there is ambiguity, it shall resolve the same. This is the effect of all the decisions of Privy Council, Supreme Court and of this Court.

6. In AIR 1944 46 (Privy Council) it has been observed that in a case where the terms of the decree are ambiguous, executing Court is entitled to look into the pleadings and the judgment.

In 23 (1957) CLT 133 Sarat Kumar Deo v. Dabendra Narayan Dutta and Ors. it has been observed that executing Court has the competency to construe the decree which he has to execute and while so construing it has absolute jurisdiction to refer to the judgment.

In Topanmal Chhotamal Vs. Kundomal Gangaram and Others, referring to AIR 1944 46 (Privy Council) it has been observed:

...For the purpose of interpreting a decree, when its terms are ambiguous, the Court should certainly be entitled to look into the pleadings and the judgment....

In ILR 1966 Cut. 796 Chaudhury Dambaru Pradhan and Ors. v. Chaudhuri Kausalya Pradhanuni question was whether the decree was declaratory one not to be capable of execution. Relying upon AIR 1944 46 (Privy Council), this Court looked to the plaint, written statement to construe the decree where nothing was expressed in respect of possession.

In 1971(I) CWR 1017 Jagannath Prasad Kh