VIDYASAGAR REDDY Vs. LAND ACQUISITION OFFICER UNIT LL

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order dt. 17-8 -1983 passed by the Principal Subordinate Judge, Mahabubnagar. The only question that arises for consideration in the Civil Revision Petition is whether an executing Court can go behind the decree and provide to the decree- holder relief varying the terms of the decree or impose certain conditions while providing the relief granted by the decree. It is well settled principle of law that an executing Court cannot go behind the decree. It must take as it stands or as it finds or according to its terms (vide V. D. Modi V. R. A. Rehman AIR 1970 S. C. 1475.) It cannot entertain any objection that the decree was incorrect on law or on facts. It has no power to add to or alter or amend the terms thereof, (Vide Jai Narayan V. Keder Nath A. I. R. 1956 S. C. 359) or correct error or grant a right not granted by the decree or adjudicate that it was not properly drawn up nor it has power to go behind the terms of the decree in the garb of interpretation and make a new decree. Of course the executing Court may refuse to execute the decree which is void or nullity for example where the Court passing the decree lacked jurisdictions-territorial, pecuniary or in respect of the subject matter of the action of the judgment debtor or a decree against a person who was not a party to the suit or if the party dies during the pendency of the suit without substitution of his legal representatives before the conclusion of the hearing. In Kiran V. Chaman Paswan A. I. R. 1954 S. C. 340 the Supreme Court held that it is a fundamental principle that the decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up where, and whenever, it is sought to be enforced, or relied upon even at the stage of execution, and even in collateral proceedings; because such a defect of jurisdiction, whether it is pecuniary, or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.

(2.) The principle that the executing Court must take the decree as it stands applies only between the parties to the suit. Where execution is made against a third person and such third person challenges the validity of the decree, the executing Court is competent to adjudicate upon the validity of the decree. Where the terms of the decree are ambiguous, the executing Court can construe and interpret the decree and ascertain its precise terms and for this purpose can peruee the judgment and the pleadings.

(3.) Ofcourse where a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other, execution will not be ordered unless the party seeking execution not only offers to perform his side but when objection is raised, satisfies the executing Court that he is in a position to do. There may ofcourse be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But which the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, or course, an executing court cannot do. The executing court can consider whether the defendant is in a position to perform his part of the decree. The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else.