According to Section 47 of Cpc the court is required to take questions relating to the execution, satisfaction of the decree: High Court of Shimla
The Section 47 of Code of Civil Procedure the executing court is required to look into the questions relating to the execution, discharge or satisfaction of the decree. Such questions are to be adjudicated by the executing court and not by a separate suit. This honorable judgement was passed by High Court of Shimla in the case of Sh. Parveen Kumar &amp; ors. Versus Sh. Choudary Ram &amp; ors. [CMPMO No. 341 of 2014] by Ms. Justice Jyotsna Rewal, Judge.  The objections preferred by the judgment debtors to the execution petition filed by the decree holders had been partly allowed by the learned Executing Court vide order, which is impugned herein by the decree holders. In terms of this order, instead of actual possession, only symbolic possession of the suit land had been ordered to be delivered to the decree holders. A civil suit was instituted by the defendants. The plaintiffs asserted themselves to be owners along with other co-sharers of the suit land comprised in Khata No. 39 min, Khatauni No. 81, Khasra No. 78, measuring 0-00-55 HM, situated in village Tutwan, Sub Tehsil Fatehpur, District Kangra, on the basis of jamabandi for the year 1989-90. The allegations in the plaint were that the defendants were neither the owners nor the tenants over the suit land. Yet they had forcibly taken over the possession of the suit land in an illegal and unlawful manner. Therefore, decree for vacant possession of the suit land was prayed for. Learned trial Court decreed the suit of the plaintiffs ex-parte against the defendants for vacant possession of suit land. Aggrieved against this order passed by the learned executing court on 29.8.2014, the decree holders have preferred instant petition under Article 227 of the Constitution of India. The court opinioned that, “There is no dispute qua the settled legal position that the executing court cannot go behind the decree and has to execute it as its stands. However, in terms of Section 47 of Code of Civil Procedure the executing court is required to look into the questions relating to the execution, discharge or satisfaction of the decree. Such questions are to be adjudicated by the executing court and not by a separate suit.”
 Hig h C o urt of H.P on 22 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No. 3414Reserved on: 19.4.2021 Decided on: 22.04.2021Sh. Parveen Kumar & ors........Petitioners.VersusSh. Choudary Ram & ors. .....Respondents.CoramMs. Justice Jyotsna Rewal Dua Judge. Whether approved for reporting 1 Yes. For the petitioners: Mr. Anuj Gupta Advocate. For the respondents:Mr. Ajay Sharma Senior Advocate with Ms. Aanandita Sharma Advocate for respondents No. 1 to 4. Nemo for respondents No. 5 to 9.Jyotsna Rewal Dua Judge The objections preferred by the judgment debtors tothe execution petition filed by the decree holders have beenpartly allowed by the learned Executing Court vide order dated29.8.2014 which is impugned herein by the decree holders. Interms of this order instead of actual possession only symbolicpossession of the suit land has been ordered to be delivered tothe decree holders. 1 Whether the reporters of the local papers may be allowed to see theJudgment Hig h C o urt of H.P on 22 04 HCHP 22(i)A civil suit was instituted by S Shri Rania and ChuniLal both sons of Shri Litru on 29.12.1995. The defendants in thesuit were S Shri Dulo and Chhunku both sons of Shri Mangtu.The plaintiffs asserted themselves to be owners alongwith otherco sharers of the suit land comprised in Khata No. 39 min Khatauni No. 81 Khasra No. 78 measuring 0 00 55 HM situatedin village Tutwan Sub Tehsil Fatehpur District Kangra on thebasis of jamabandi for the year 1989 90. The allegations in theplaint were that the defendants were neither the owners nor thetenants over the suit land. Yet they had forcibly taken over thepossession of the suit land in May 1989 in an illegal and unlawfulmanner. Therefore decree for vacant possession of the suit landwas prayed for. Learned trial Court on 22.8.1998 decreed thesuit of the plaintiffs exparte against the defendants for vacantpossession of suit land. The operative part of the judgmentreads as under:“ .Since the plaintiffs alongwith other cosharers arethe owners of the suit land and the defendants have no right title or interest over the suit land and thus the suit of theplaintiffs is hereby decreed against the defendants for vacantpossession of the land comprised in Khata No. 39 min Khatauni No. 81 Khasra No. 78 measuring 0 00 55 HM situated in village Tutwan Sub Tehsil Fatehpur Distt. Kangra H.P. as per jamabandi for the year 1989 90.”2(ii)On 12.8.2006 the legal heirs of original plaintiff No. 1and Shri Chuni Lal original plaintiff No. 2filedan execution petition under Order 21 Rule 11 of Code of CivilProcedure for executing the aforesaid decree dated 22.8.1998. Hig h C o urt of H.P on 22 04 HCHP 3The execution was preferred against the legal heirs of originaldefendants. The prayer in the execution petition was for puttingthe plaintiffs decree holdersinto actualpossession of the suit land after demarcation of boundaries.2(iii)On 12.1.2007 objections on behalf of judgmentdebtors were preferred pleading therein that the decree hadbecome inexecutable for the reasons: a)The original judgment debtor No. 1 Dulo hadpurchased 1 16th share in the suit land on 27.5.1999.b)Judgment debtor Bhola Ram son of Shri Dulo had alsopurchased a separate share in the suit land. c)After purchase of shares in the suit land thejudgment debtors had become joint owners in possession withthe decree holders. The share of the judgment debtors jointowners is not specified on a particular portion of land in question.Therefore till the time the land is partitioned every inch of it hasto be construed as joint between the parties joint owners.d)The decree holdersin suchcircumstances are not entitled for actual possession of the suitland.The reply to the objections had been filed on behalfof the decree holders present petitioners denying the purchaseof suit land by the judgment debtors. It was also submitted that Hig h C o urt of H.P on 22 04 HCHP 4even after the purchase of a portion of the suit land by thejudgment debtors the decree could still be executed. 2(iv)Issues were framed in the objection petition on28.12.2007. The parties led evidence in support of theirrespective contentions After considering the pleadings and theevidence adduced by the parties the learned trial court held thatthe original defendant No. 1 Shri Dulohad purchased the suit land on27.5.1999 to the extent of 1 16th share and judgment debtorBhola Ram had also purchased separate share in the suit land.Therefore the judgment debtors had become co sharers of thesuit land. On becoming co sharers of the suit land the judgmentdebtors cannot be ousted from their possession of the suit landand for this reason actual possession of the suit land was notordered to be delivered to the decree holders. Instead of warrantof actual possession warrant of symbolic possession was orderedto be issued in favour of the decree holders.Aggrieved against this order passed by the learnedexecuting court on 29.8.2014 the decree holders have preferredinstant petition under Article 227 of the Constitution of India.3.Heard learned counsel for the parties and gonethrough the record.4.Learned counsel for the petitioners decree holderssubmitted that learned Executing Court erred in not delivering Hig h C o urt of H.P on 22 04 HCHP 5actual possession of the suit land in favour of the decree holders.Learned counsel contended that there was no document onrecord to show that the judgment debtors had purchased anyportion of land in the suit land. He further submitted that in anycase even if it is to be presumed that the part of suit land wassold to the judgment debtors original defendants then also itwas sold much after passing of the judgment and decree soughtto be executed. The intention of the judgment debtors and theirpredecessors was only to deprive the decree holders from gettingthe possession of the suit land. In such circumstances theobjections filed by the judgment debtors were not legallymaintainable and were liable to be rejected as the executingcourt could not have gone behind the decree. Learned counselfor the appearing respondents judgment debtors supported theimpugned order. 4.On going through the record the impugned ordercannot be said to be suffering from any infirmity. Followingaspects become material in this regard: 4(i)The objections preferred on behalf of the judgmentdebtors were in respect to the inexecutability of the decree dated22.8.1998 vide which the plaintiffs were held to be the owners ofthe suit land alongwith other co sharers. It was held in thejudgment and decree that the defendants judgment debtorswithout any rights or authority had forcibly taken the possession Hig h C o urt of H.P on 22 04 HCHP 6of the suit land in May 1989. Accordingly the suit filed by theplaintiffs was decreed against the defendants for vacantpossession of the suit land comprised Khata in No. 39 min Khatauni No. 81 Khasra No. 78 measuring 0 00 55 HM situatedin village Tutwan Sub Tehsil Fatehpur District Kangra as perjamabandi for the year 1989 90.4(ii)In response to the execution petition filed in the year2006 the judgment debtors by submitting that subsequent tothe decree they had purchased shares in the suit land objectedto the executability of the decree. During evidence they placedon record jamabdndi for the year 1999 2000andjamabandi for the year 2004 2005wherein it wasrecorded that original defendant No. 1 Dulohad purchased 30 out of 480shares in the suit land and judgment debtor Bhola Ram had alsopurchased 45 out of 480 shares in the suit land. Sale deedsthough have not been placed on record however the decreeholders have not denied the revenue documents placed onrecord by the defendants judgment debtors. In fact no evidencein this regard whatsoever has been led by the plaintiffs decreeholders to rebut the revenue record reflecting purchase of sharesin the suit land by the objectors judgment debtors. Thus fromthe perusal of the evidence adduced by the parties in theobjection petition it is evident that subsequent to the passing of Hig h C o urt of H.P on 22 04 HCHP 7the decree the defendants judgment debtors have purchasedshares in the suit land from the other cosharers and therefore have themselves become co shares over the suit land.4(iii)There is no dispute qua the settled legal position thatthe executing court cannot go behind the decree and has toexecute it as its stands. However in terms of Section 47 of Codeof Civil Procedure the executing court is required to look into thequestions relating to the execution discharge or satisfaction ofthe decree. Such questions are to be adjudicated by theexecuting court and not by a separate suit. Section 47 reads asunder:“47. Questions to be determined by the Court executingdecree.—(1) All questions arising between the parties to thesuit in which the decree was passed or their representatives and relating to the execution discharge or satisfaction of thedecree shall be determined by the Court executing thedecree and not by a separate suit.(3) Where a question arises as to whether any person is or isnot the representative of a party such question shall for thepurposes of this section be determined by the Court.[Explanation 1.—For the purposes of this section a plaintiffwhose suit has been dismissed and a defendant againstwhom a suit has been dismissed are parties to the suit.Explanation II—(a) For the purposes of this section apurchaser of property at a sale in execution of a decree shallbe deemed to be a party to the suit in which the decree ispassed and(b) all questions relating to the delivery of possession of suchproperty to such purchaser or his representative shall bedeemed to be questions relating to the execution dischargeor satisfaction of the decree within the meaning of thissection.]” Hig h C o urt of H.P on 22 04 HCHP 84(iv)(2010) 14 SCC 384 title Arun Lal and othersversus Union of India and others was a case where decree forrecovery of possession by ejectment of defendants from abungalow was passed with a direction to remove barracksconstructed on part of compound. Union of India in terms of aresumption notice took over possession of land appurtenant tothe bungalow. The notice was not challenged. In executionproceedings respondents filed objections under Section 47 CPCthat decree was rendered inexecutable to the extent of landresumed under the resumption notice. The apex court upheldHigh Court’s verdict that possession of said land could not betaken away from Union of India for delivering to the decree holders since after resumption of property and takingpossession Union of India in exercise of its rights as paramounttitle holder was no longer holding the same as a tenant so as tobe answerable to petitioners as its landlords. Relevant para fromthe judgment is extracted hereinafter: “15. It is common ground that the land appurtenantto the bungalow had been utilised by the Union of India forconstruction of barracks. The entire extent of 2.792 acres ofof land including the one under the barracks could therefore be taken over pursuant to the resumption order which wasnever assailed and had thereby attained finality. Such beingthe position the High Court was right in holding thatpossession of the above extent of land could not be takenaway from the Union of India for delivery to the decree holders. That is because after the resumption of the propertyand the taking over of the possession by the Union of India inexercise of its rights as the paramount title holder it was no Hig h C o urt of H.P on 22 04 HCHP 9longer holding the same as a tenant so as to be answerable tothe petitioners as its landlords. The Union of India was on thecontrary holding the resumed property in its own right and ina capacity that was different from the one in which it hadsuffered the decree for eviction. This was a significant changein the circumstances in which the decree was passedrendering it inexecutable.”Jagdish Dutt and another v. Dharam Pal andothers reported in AIR 1999 Supreme Court 1694 was a casewhere a decree for actual possession of immovable property waspassed. One of the coparceners assigned transferred his interestin the decree in favour of the judgment debtors. It was held thatthe decree in such situation would get extinguished to the extentof the interest so transferred and further that execution petitionwould lie only to the extent of remaining part of the decree. Itwas also observed that where the interest of coparceners isundefined indeterminate and cannot be specifically stated to bein respect of any one portion of the property then a decree foractual possession of immovable property cannot be given effectto before ascertaining the rights of the parties by an appropriatedecree in a partition suit. The relevant para of the judgmentreads as under:“7.When a decree is passed in favour of a joint familythe same has to be treated as a decree in favour of ail the membersof the joint family in which event it becomes a joint decree. Where ajoint decree for actual possession of immovable property is passedand one of the coparceners assigns or transfers his interest in thesubject matter of the decree in favour of the judgment debtor thedecree gets extinguished to the extent of the interest so assigned andexecution could lie only to the extent of remaining part of the decree.In case where the interest of the coparceners is undefined Hig h C o urt of H.P on 22 04 HCHP 10indeterminate and cannot be specifically stated to be in respect ofany one portion of the property a decree cannot be given effect tobefore ascertaining the rights of the parties by an appropriate decreein a partition suit. It is no doubt true that the purchaser of theundivided interest of a coparcener in an immovable property cannotclaim to be in joint possession of that property with all the othercoparceners. However in case where he is already in possession ofthe property unless the rights are appropriately ascertained hecannot be deprived of the possession thereof for a joint decree holdercan seek for execution of a decree in the whole and not in part of theproperty. A joint decree can be executed as a whole since it is notdivisible and it can be executed in part only where the share of thedecree holders are defined or those shares can be predicted or theshare is not in dispute. Otherwise the executing court cannot find outthe shares of the decree holders and dispute between joint decreeholders is foreign to the provisions of Section 47 CPC. Order XXI Rule15 CPC enables a joint decree holder to execute a decree in itsentirety but if whole of the decree cannot be executed this provisioncannot be of any avail. In that event also the decree holder will haveto work out his rights in an appropriate suit for partition and obtainnecessary relief thereto. Various decisions cited by either side towhich we have referred to do not detract us from the principle statedby us as aforesaid. Therefore a detailed reference to them is notrequired.” The ratio of aforesaid judgments squarely applies tothe facts of the case. In the instant case the judgmentdebtors objectors have proved on record that they had becomeco sharers of the suit land subsequent to passing of the decreesought to be executed. The suit land is now jointly owned bythem alongwith various cosharers. In such situation theirpossession over the suit land cannot be treated as illegal and therefore they cannot be ousted from such possession. Thejudgment debtors objectors have purchased shares in the suitland from the other co sharers. Their possession of the suit landis now in a capacity different from the one in which they had Hig h C o urt of H.P on 22 04 HCHP 11suffered the decree for possession. In such circumstances learned trial court was justified in not issuing the warrant ofactual possession in favour of decree holders petitioners. For theforegoing reasons the petition lacks merit and is accordinglydismissed. Jyotsna Rewal Dua Judge 22nd April 2021 