LAURIANA FERNANDES E DINIZ Vs. MARIA PIEDADE FERNANDES

JUDGEMENT

(1.) Heard Shri D. Pangam, learned Counsel appearing for the petitioners and Shri Sudesh Usgaonkar, learned Counsel appearing for respondent nos. 1 to 3, 6 to 27.

(2.) By the above petition, the petitioners challenge the order dated 20.09.2003 passed by the learned Civil Judge Senior Division, Quepem, in Special Execution Application No. 16/2002/A whereby an application for execution filed by the petitioners to execute the decree dated 12.11.1990 came to be dismissed.

(3.) Shri D. Pangam, learned Counsel appearing for the petitioners has assailed the impugned order on the ground that the learned Judge has exercised its discretion with material irregularities in dismissing the said execution proceedings as if the learned Judge was sitting in appeal against the decree passed in favour of the petitioners. The learned Counsel pointed out that it was not open for the learned Judge to consider the merits of the claim of the petitioners which have been finally adjudicated in the said decree dated 12.11.1990. The learned Counsel further submitted that the correctness of the said decree could not be gone into in the execution proceedings as according to him it is well settled that the executing Court cannot go behind the decree. The learned Counsel further pointed out that by the decree passed in favour of the petitioners, the reliefs which are granted besides the declaration and demolition of some construction, a permanent injunction in favour of the petitioners. The learned Counsel further pointed out that the learned Judge has summarily dismissed the execution proceedings on the ground that the judgment and decree being executed was a non speaking order. The learned Counsel further pointed out that the petitioners were non suited in the said proceedings on the ground that earlier application was also filed by the petitioners which came to be withdrawn. The learned Counsel further submitted that the learned Judge has exceeded its jurisdiction in dismissing the execution proceedings and as such the impugned order cannot be sustained and deserves to be quashed and set aside.