The executing court cannot entertain pleas contrary to the decree, and the execution of a decree should not be thwarted on untenable grounds having no bearing on its validity or executability.

JUDGMENT :

1. Heard on the question of admission.

2. This revision under Section 115 of the CPC has been filed being aggrieved vide order dated 01/10/2021 passed by First Civil Judge Senior Division Vidisha (M.P.) in Execution case No. Ex-A 26/17 (Sameermal Jalori VS Devendra Kumar Sharma & another) whereby application filed by the applicant/judgment debtor under Order 21 Rule 13 Read With Section 47 and 151 of the CPC has been rejected.

3. Brief facts leading to filing of this case are that respondent No.1/ decree holder had filed civil suit against the applicant/judgment debtor for recovery of possession of the land which was registered as civil Suit No. 21-A/1992. It was alleged in the plaint that plaintiff/respondent No.1 vide sale deed dated 20/05/1977 had purchased 135X40 sq ft land bearing land survey No. 2290 from its earlier owner namely Gappulal. It was alleged that applicant had encroached upon some part of the land, thus, prayer for recovery of possession and removal of encroachment was made. The suit was contested by the applicant by filing written statement denying the plaint averments and objections were raised with regard to boundaries of the suit land. The learned Civil Judge Class I Vidisha (M.P.) vide its judgment and decree dated 10/07/1993 decreed the suit and directed to hand over the possession and also to remove the construction. Assailing the judgment and decree dated 10/07/1993, applicant had filed first appeal. The First Appellate Court vide judgment and decree dated 29/08/2000 remanded back the matter to the Trial Court for considering the case a fresh on the ground of proper valuation of court fee and also decide the case according to the demarcation since identity of the land was suspicious. Thereafter, in compliance of the order passed by the First Appellate Court, learned Trial Court recorded additional evidence and vide judgment and decree dated 23/07/2012 again decreed the suit. Being aggrieved first appeal was filed by the applicant which was dismissed vide judgment dated 17/10/2015. Being aggrieved by the Appellate Court judgment dated 17/10/2015, applicant had filed second appeal before this Court. This Court vide judgment and decree dated 10/08/2017 affirmed the judgment and decree passed by both the courts below and dismissed the appeal. Thereafter, respondent No.1 filed an application for execution before the learned Executing Court. Applicant filed an application under Order 21 Rule 13 and Section 47 Read With Section 151 of the CPC alleging therein that the decree passed is an unexecutable decree as the identity of the land is in dispute since the boundaries of the suit land mentioned in the sale deed and in the map annexed alongwith plaint are different. The learned Trial Court rejected the application.

4. Being aggrieved, present revision has been filed.

5. Heard learned counsel for the parties.

6. The learned Executing Court rejected the application filed by the applicant on the ground that objection raised have already been decided suo motu which has been confirmed by the Appellate Court and has not been modified. Application has been filed for the purpose of delay in the execution proceedings.

7. The Apex Court in the case of (Brakewel Automotive Components (India)(P) Ltd VS P.R. Selvam Alagappan (2017) 5 SCC 371 has held that

“20. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is nullity that the same is rendered non est and is thus unexecutable. An erroneous decree can not be equalled with one which is a nullity. There are no intervening development as well to render the decree unexecutable.

21. As it is, Section 47 of the Code mandates determination by an executing court, question arising between the parties or their representative relating to the exec