Jharkhand High Court
Hiraman Prasad Aged About 58 Years Son Of ... vs Arjun Prasad on 11 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 561 of 2024
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Hiraman Prasad aged about 58 years son of Shivlal Sao, resident of
village - Lakhe, PO - Korrah, PS - Muffasil, District - Hazaribag
(Jharkhand) .... Petitioner
-- Versus --
Arjun Prasad, son of Shivlal Sao, resident of village - Lakhe, PO -
Korrah, PS - Muffasil, District - Hazaribag (Jharkhand), at present
residing at village - Korrah Chowk, PO and PS - Korrah, District -
Hazaribag, Jharkhand .... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Amar Kumar Sinha, Advocate
:- Mr. Sumit Kumar, Advocate
For the O.P. :- Mr. Lalan Kr. Singh, Advocate
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05/11.03.2025 Heard learned counsel appearing for the petitioner and
learned counsel appearing for the sole opposite party.
2. This petition has been filed under Article 227 of the
Constitution of India wherein prayer is made for setting aside the
order dated 03.02.2024/05.03.2024 passed by learned Civil Judge
(Junior Division), Hazaribag in Execution Case No.04 of 2023
contained in Annexure-3 arising out of Title Suit No.81 of 2022.
3. Mr. Amar Kumar Sinha, learned counsel appearing for the
petitioner submits that the petitioner is the plaintiff in said Title Suit
No.81 of 2022 which has been instituted as per direction upon the
defendant to execute and register sale deed with respect to the
lands measuring an area of 0.06 acres appertaining to R.S. Plot
No.45 of Khata No.196 situated at village - Cantonment, Thana
No.157, District - Hazaribag along with pucca house standing
thereon. He submits that the said suit was contested and it was
decreed in favour of the plaintiff on contest and it has been ordered
and decreed that it is allowed on contest without cost in favour of
the plaintiff and defendant was directed to execute the sale deed
for suit land mentioned in Schedule-A in favour of the
petitioner/plaintiff within three months failing which the same will
be executed through the process of Court and possession be also
delivered through Court. He further submits that against the said
judgment dated 09.01.2023 of the learned Court, the judgment
debtor has not preferred any appeal. Thereafter the execution case
No.4/2023 was instituted by the petitioner/plaintiff in which the
learned Court has issued the direction by the order dated
07.10.2023 directing to deposit the cost and the Nazir was
authorized to get the sale deed executed in favour of the decree
holder on behalf of the Court. He submits that later on 10.10.2023,
the cash was deposited which has been recorded in the order dated
10.10.2023. He then submits that by the order dated
03.02.2024/05.03.2024 all of a sudden the learned Court has
passed the order directing the petitioner/decree holder to file a
petition before the Deputy Commissioner, Hazaribag for removal of
the prohibition upon the suit land, thereafter the Court will pass
appropriate order for order of the same. He submits that the said is
not in accordance with law and it is well settled that once the
decree is passed, the executing court has got no power to alter the
decree. He submits that once the judgment and decree attained the
finality the learned Court was bound to execute the same, however,
the wrong order has been passed only on the ground that under
Section 22A of the Registration Act in light of letter of Sub Registrar,
the land is restricted to be sold.
4. Learned counsel appearing for the judgment
debtor/opposite party submits that the learned Court has passed
the said order and he has nothing to say on the same.
5. It is an admitted position that the Title Suit No.81 of 2022
was instituted for direction to execute the sale deed which was
decreed by judgment dated 09.01.2023 in favour of the
petitioner/plaintiff and the direction has been issued to the
judgment debtor/opposite party to execute the same within three
months failing which the same will be executed through the process
of Court and possession be also delivered through Court even it was
not complied with the Execution Case No.4 of 2023 was instituted
by the petitioner/plaintiff herein and the learned Court by order
dated 07.10.2023 has been pleased to direct to deposit the cost and
the Nazir was authorized to execute the deed in favour of the
decree holder on behalf of the Court and further all of a sudden on
03.02.2024/05.03.2024 the learned Court directed the petitioner to
move before the Deputy Commissioner, Hazaribag for taking
permission for removal of the same thereafter the same will be
executed by the Court.
6. The power of executing Court as has been provided under
Order XXI of Code of Civil Procedure contains the provisions of the
execution of the decrees and orders. The executing Court has only
to execute the decree rendered by the Court of first instance
without deviating therefrom unless reversed by the higher forum. It
is further well known that if the judgment debtor is having any
objection regarding the decree he can invoke the provision of
Section 47 or under Order XXI Rule 97, 98 and 99 and Section 47 of
the CPC confers power upon the executing court to determine a
question in this if any objection is being raised and further under
the provisions of Order XXI, Rule 97, 98 and 99 the objection can be
filed to be decided by the executing court and that is required to be
decided once a petition is filed and that provision is made to decide
the same as a contesting suit. If the judgment debtor has not filed
any petition for objection and not raised any objection in view of
either of the provisions and in light of that the executing court
power is very limited and it has to only determine the objection and
execute the decree. The reference may be made to the case of
Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and
Ors. reported in (1970) 1 SCC 670, wherein at paragraph No.6
it has been held as under :-
"6. A court executing a decree cannot go behind the
decree: between the parties or their representatives it
must take the decree according to its tenor, and
cannot entertain any objection that the decree was
incorrect in law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a decree
even if it be erroneous is still binding between the
parties."
7. It is clear from the above judgment that a decree has to be
executed as per its tenor and cannot be deviated but subject to
objection which is to be decided by the executing court in the
execution proceeding. Admittedly, in the present case the judgment
debtor has not preferred any appeal and has also not filed any
objection in light of two of the provisions as discussed here-in-
above and the learned Court only on a letter of the District Sub
Registrar has passed the said order.
8. In view of the above discussion, the said order is not in
accordance with law, accordingly the order dated
03.02.2024/05.03.2024 is hereby set aside.
9. The Executing Court will now proceed to execute the same
decree in accordance with law.
10. This petition is allowed in above terms and disposed of.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
