The executing court cannot entertain objections from Judgment Debtors regarding the correctness of a decree, as they cannot lead fresh evidence after suffering a decree.

JUDGMENT :

1. Rule. Rule made returnable. With consent of the parties, heard finally.

2. By the present petition, the petitioners are challenging the order dated 23/09/2019, passed by 2nd Joint Civil Judge, Junior Division, Hingoli, below Exhibit 66, in Regular Darkhast No.98/2012, whereby the application filed by the Judgment Debtor to adduce evidence by calling Taluka Inspector of Land Records to demonstrate that portion of suit land in the decree and part of the adjacent land of the Judgment Debtor are overlapping as some new facts have come to the knowledge of the Judgment Debtor during the measurement of the land of the Judgment Debtor, and there is overlapping of Survey No.19, 20 and Survey No.8, 9 and 12 at Ganeshwadi over each other.

3. Facts giving rise to the present petition can be briefly summarized as under : -

That the respondents No.1 to 6 are the Decree Holders in Regular Civil Suit No.224/1983 whereas the petitioners are the Judgment Debtors. The suit is filed for removal of encroachment and mesne profit. The said suit was decreed by order dated 17/08/2000 by the Trial Court by holding that the defendants / petitioners herein have encroached upon 93 R land of the plaintiffs/ respondents herein. The said Judgment is confirmed up till the High Court in the second appeal.

4. The petitioners have also filed Regular civil Suit No.291 of 2000 for declaration of ownership and for perpetual injunction wherein the respondents Decree Holders are also defendants and the said suit is also decreed which has attained finality.

5. It is the case of the petitioners that the land in Survey No.9 of village Ganeshwadi and land in Survey No.19, 20 and 22 of village Hingoli are adjacent to each other. The said two lands are on village boundaries.

6. After the decree was confirmed in Regular Civil Suit No.224/1983, Regular Darkhast No.98/2012 is filed for execution and prayed to deliver the possession of 93 R land from the petitioners. The petitioners filed an application at Exhibit 21 seeking directions against the Decree Holder i.e. respondents to deposit the amount for joint measurement. The said application was allowed. However, it is the case of the petitioner that the measurement so carried out was incorrect. Accordingly, possession warrant was issued by the Trial Court.

7. The petitioners, thereafter, filed application at Exhibit 53 before the Executing Court under Section 47 as well as Order 21 Rule 97 to 101 of the Code of Civil Procedure, in which it is specifically contended that there is overlapping of properties and that there is no measurement of the property by the Judgment Debtor and Decree Holder and without joint measurement, the petitioners are shown as encroachers. It is contended that unless there is proper measurement and actual measurement ascertained, the decree for possession cannot be executed. The said application was rejected by order dated 15/11/2019. It is observed by the Trial Court that the Executing Court has no power to go beyond decree.

8. The petitioners again moved another application below Exhibit 64 to call for original file of measurement carried out in which there is clear finding of overlapping between the lands. The said application was also rejected by order dated 14/08/2019. The petitioners, thereafter, moved another application below Exhibit 66 requesting to permit the petitioners to lead evidence. The petitioner contended that the petitioners have already recorded their objection to the measurement, specifically there is overlapping of Survey No.19, 20 and Survey No.8, 9, 12 of Ganeshwadi. The petitioners have reported their objection under Order 21 Rule 97 to 101 of the Code of Civil Procedure. The said application is opposed by the Decree Holder on the ground that the Executing Court cannot go behind the decree between the parties or their representatives, it must take the decree according to its tenure, and cannot entertain any objection that the decree was incorrect in law or on facts, ther