The executing Court must operate strictly within the terms of the decree and cannot overstep its authority by altering, substituting, or taking actions such as ordering demolition.

ORDER

Harish Tandon, C.J.

1. It reminded me of the off quoted and celebrated observation of Sir Vivian Bose, an eminent jurist that “the trouble starts after getting the decree”.

2. This is one of the classical examples of the aforementioned observations where the judgment debtor is taking recourse to all legal avenues to thwart the decree and taking all resorts to create hurdle in getting the decree duly executed. The decree for declaration of title and recovery of possession is passed against the judgment debtor-petitioner which attained finality. The said decree was put into execution, yet the decree holder could not see the silver line in the dark clouds as it is travelling on the circumference of the identification of the decretal property. The decree vividly depicts the area of land butted and bounded from both sides, yet a confusion is sought to be created by the judgment debtor on its actual position, more particularly, his possession in respect of the land.

3. During the pendency of the suit, the Commissioner was appointed and a report was submitted before the trial Court. The report vividly reflects the property and the Court after having satisfied that the description of the property has been lucidly and elaborately pleaded, there is no infirmity in passing the decree. The decree for eviction was passed upon declaration of the title and the person who did not have a title in the property should not be allowed to remain in occupation thereof.

4. The executing Court must bear in mind that the jurisdiction exercised by it is within the contour of the decree and it cannot travel beyond the same. The executing Court can neither alter the decree nor substitute itself as a Court of appeal to find out the veracity, genuinity and the legality of the judgment and a decree passed by the trial Court. Obviously, Section 47 of the Code of Civil Procedure bestows power upon the executing Court to interfere with the decree, but only in a restricted sense i.e. execution, discharge and the satisfaction of the decree and not beyond it. The executing Court cannot behave like a trial Court and reopen the issues which had already been decided upon evidence.

5. Be that as it may, the Commissioner was appointed by the executing Court which in my opinion, was not warranted and the said Commissioner submitted the report. Interestingly, both the decree holder and the judgment debtor expressed their dissatisfaction over the said report and invited the attention of the executing Court in this regard. There is no infirmity and/or illegality on the part of the executing Court to direct the Commissioner to do the commission work afresh after the report submitted by him was found to be defective, more particularly, when both the parties have agreed in this regard.

6. The executing Court on the basis of the consensus having arrived between the parties did not accept the report submitted by the Commissioner and directed him to make a de novo commission work strictly in terms of the decree passed by the trial Court which does not appear to have violated any of the provisions of the procedural law. The moment the Court declined to take the report on record as the commission work is not done by adhering the norms and the procedures applicable in this regard, there is no fetter in law to reappoint a Commissioner or direct the Commissioner to make a fresh inquiry and do the further commission work. However, in course of the hearing and when the attention of the Court was drawn to the operative portion of the impugned order, we noticed an alarming thing where the Court had directed the Commissioner to indicate the structure for demo