Bapu @ Babulal vs Lalchand
2021 Latest Caselaw 8307 MP

HIGH COURT OF MADHYA PRADESH C.R. 147/2021

(Bapu @ Babulal Vs. Lalchand & Ors.) Gwalior dated 06.12.2021 Shri Anand Kumar Gupta, learned counsel for the petitioner.

This revision petition has been filed by the judgment debtor against the order dated 25/01/2021 passed by court of 2nd Civil Judge, Class -2, Chachoda, Dist. Guna, whereby, objection filed by the judgment debtor under section 47 of CPC has been dismissed.

Learned counsel for the petitioner submits that in the decree itself the portion of survey No. 159 and 160 has not been specified for which warrant of possession has been issued. In such a situation, the decree holder was required to file an application under section 152 of CPC to get the decree amended, but the learned executing court has rejected the objection of the judgment debtor in mechanical manner. He has further contended that no court fee for mesne profits has been paid. Without payment of requisite court fee, warrant for recovery cannot be issued.

Having heard learned counsel for the petitioner and on perusal of the record, it is found that the decree passed against the petitioner/judgment debtor has attained finality. The executing court has no authority to go behind the decree. It has directed to issue warrant for possession as per the judgment and decree. In execution of warrant of possession so issued by the executing court, the possession of the land is to be handed over to the decree holder as per the decree. If the land is not specified in the judgment and decree for which possession is to be handed over to the decree holder, the

HIGH COURT OF MADHYA PRADESH C.R. 147/2021

judgment debtor is at liberty to hand over the portion of his own choice in execution of the decree, but he cannot resist execution of the decree on this count alone.

So far as payment of court fee on account of mesne profits is concerned, the decree itself is amply clear in this regard, according to which, executing court shall receive court fee on the amount recovered from the judgment debtor.

In view of above, learned executing court has committed no error in dismissing the objection of the judgment debtor. As a result, the instant petition has no force and is hereby dismissed.

(Satish Kumar Sharma) Judge

Durgekar*

SANJAY NAMDEORAO DURGEKAR 2021.12.07 17:19:33 +05'30'