IMPORTANT POINT
Objection to execution of decree – Even if Executing Court cannot go behind decree, it does not mean that it has no duty to find out true effect of that decree.

JUDGMENT

Sashikanta Mishra, J.—Long before, in the case of General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC OnLine PC 16 it was said by the Privy Council that the problems of a decree holder begin after passing of the decree in his favour. Fighting a litigation and obtaining a favourable decree is one thing but getting it enforced is quite another. The present case is an illustration of the above truism which often plagues the civil justice system of our country.

2. The petitioners are the judgment debtors in Execution Case No. 13 of 2012 of the Court learned First Addl. Senior Civil Judge, Cuttack. In the present application under Article 227 of the Constitution of India, they assail the order dated 29.01.2023 passed by the 1st Addl. District Judge, Cuttack in Civil Revision Case No. 6 of 2021 confirming thereby the order dated 25.10.2021 passed by the aforementioned executing Court in CMA No. 152 of 2021.

3. The facts of the case, relevant only to decide the present application, are that one Krushna Swain, father of the opposite parties (decree holder) had filed T.S. No. 148 of 1981 against father of the petitioners (judgment debtor) for declaration of right, title, interest, confirmation of possession and permanent injunction over ‘C’ Schedule property prescribed in the plaint. The suit was decreed by declaring title of the plaintiff, confirming his possession and by permanently restraining the defendant from interfering with his possession vide judgment dated 09.11.1983 and decree dated 24.11.1983. The defendant carried appeal being TA No.2 of 1984. Said appeal was dismissed on 23.02.1987 confirming thereby the judgment and decree of the trial Court. The defendant carried further appeal to this Court being RSA No.156 of 1987, but the same was also dismissed on 16.01.2008. Thus, the order of the trial court attained finality.

4. The decree holder lodged execution being Execution Case No.13 of 2012 on 20.11.2012 alleging that the judgment debtor forcibly occupied the ‘C’ Schedule land. Upon receiving notice, the judgment debtor filed objection under section 47 of CPC being CMA No. 38 of 2013. Said application was dismissed on 16.10.2019. The judgment debtor again filed a petition questioning the maintainability of the execution case, which was also rejected vide order dated 26.01.2020. By the said order, the executing Court directed the decree holder to take necessary steps and for payment of fees for issuing writ of delivery of possession by evicting the judgment debtor. It is stated that said order was complied with by the decree holder on 18.03.2021. The judgment debtor again filed an application under Section 47 of CPC being CMA No.42 of 2021, which was dismissed on 25.10.2021. He thereafter, preferred revision against such order being Civil Revision No.6 of 2021 before the First Additional District Judge, but the same was also dismissed on 29.01.2023 on merits. Despite rejection of such application, the judgment debtor again filed an application under Section 47 of CPC being CMA No.175 of 2021.

5. The executing Court heard both parties in CMA No.152 of 2021, which was filed basically on the ground that the decree being one for confirmation of possession and not recovery of possession, the execution case filed seeking recovery of possession is not possible.

6. After taking note of all relevant facts and the repeated filing of applications by the judgment debtor under section 47 of CPC, the executing Court was of the view that the decree of confirmation of possession can only be satisfied by granting recovery of possession by evicting the judgment debtor from the suit land. The executing Court also found that the same issue having been raised earlier by the judgment debtor had been considered and rejected. On such findings, the executing Court dismissed the application under Section 47 CPC.

7. Being aggrieved, the judgment debtor preferred revision being Civil Revision Case No.6 of 2021 befo