CHANDYKUNJU Vs. AUDITYA FINANCE INVESTMENT INDIA LTD

JUDGEMENT

(1.) The decree for mandatory injunction directing the respondent to vacate the building, obtained by the petitioner was sought to be executed by the execution petition from which this revision arises. The executing court has directed the petitioner to pay court fee entering the finding that recovery of possession of the property on the strength of title can be granted only on payment of requisite court fee. The question therefore is, was the executing court justified in issuing the above direction .

(2.) The powers of the executing court require to be considered in this context. It is axiomatic that the executing court has no power to go behind the decree. It has to execute the decree as it stands. It is true that when the terms of a decree are ambiguous, the executing court has the power to construe the same and ascertain its precise meaning. For this purpose the executing court can even refer not only to the judgment but also the pleadings in the case. However a plea requiring a detailed investigation of the question which can be raised during the trial, cannot be raised for the first time in execution. (See Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Others ( AIR 1970 SC 1475 ). The Supreme Court has observed as follows:-

(3.) Going by this dictum it is clear that the order of the executing court to the effect that the decree for delivery of the property is incapable of execution as the requisite court fee has not been paid, is not sustainable in law. The executing court in holding so, in the exercise of its jurisdiction, in any event, has acted illegally.