MOHAMMAD FAZALUR RAHMAN KHAN Vs. TANVEER AHMAD KHAN

JUDGEMENT

(1.) THE present revision is directed against the order dated 27th of October, 2007 passed by the Additional District Judge/Special Judge (E.C. Act), Bareilly in Misc. Case No. 37 of 2006. The said miscellaneous case arises out of execution proceedings. The facts of the case may be noted in brief.

(2.) THE applicant landlord, Mohd. Fazalur Rahman Khan, instituted O.S. No. 1 of 1992 against the present opposite party for recovery of arrears of rent and eviction from three shops described at the foot of the plaint on the allegation that he is his tenant and has failed to pay the rent in spite of service of notice of demand. The said suit after contest was decreed by the trial court. The said decree was challenged in Civil Revision No.329 of 1998 before this Court. The said revision has been dismissed by this Court by the judgment and order dated 15th of May, 2006. Thereafter, the decree holder put the decree in execution. It appears that during the course of execution proceedings, the present applicant - judgment debtor filed an objection under Section 47 of C.P.C mainly on the ground that the property in dispute is not identifiable. The executing court by the order under revision has entertained the said objection and has directed the decree holder to answer the interrogatories. The said order is under challenge in the revision.

(3.) A copy of the written statement has been filed as Annexure-2. A bare perusal of the written statement would show that there is no whisper therein with regard to the plea that the property in dispute is not identifiable. On the other hand, in the written statement the defendant-judgment debtor has admitted relationship of landlord and tenant and stated that he is tenant of three rooms. No dispute with regard to the extent of tenanted accommodation was raised therein. This being so, it is but obvious that the property in dispute is identifiable. Apart from the above, it is acknowledged legal position that the executing court cannot go behind the decree. It has to execute the decree as it is. Legality or validity of a decree cannot be the subject matter of discussion before an executing court. An executing court can refuse to execute a decree only when the decree is null or void due to lack of jurisdiction, which is not the case here. Reference can be made to Topanmal Chhotamal Vs. Kundomal Gangaram and others, AIR 1960 Supreme Court 388 and Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and others, AIR 1970 Supreme Court, 1475. The learned counsel for the judgment debtors could not place any material before this Court to take a different view of the matter. Thus, it is clear that the said plea is wholly frivolous and has been raised just to delay the execution of the decree. It is really shocking that Shri Vijai Kumar Khatri (Additional District Judge) has entertained the said plea and has, thus, delayed the further execution of the decree. It appears that he has not examined the legal provisions before passing the order under revision in utter disregard of well settled principles of law that an executing court cannot go behind the decree.