FUDNI DEVI Vs. CHOTELALL SAH

JUDGEMENT

(1.) Heard Sri Mandal, learned Senior counsel for the petitioner.

(2.) He submits that plaintiff-petitioner had filed a suit for declaration of title and confirmation of possession and if found out of possession or if dispossessed during pendency of suit for restoration of possession the suit was decreed. The trial Court confirmed his possession. The suit was decreed. No sooner the suit was decreed the defendants who did not appear in the proceedings dispossessed the petitioner. The petitioner then put the decree in execution. The Court refused to go behind the decree and said that the decree was unexecutable. It is this order that is under challenge. Strict reliance has been placed in AIR 1988 Orissa Page 9 which is virtually identical on facts. The said Court has held that executing Court was only to interpret the judgment and decree in the light of relief that was sought for which included a relief of restoration of possession the same- could be granted and executed by the executing Court.

(3.) I am afraid, I am unable to agree with the said proposition. It is well settled that the executing Court has to execute the judgment and decree as it is. The relief that the plaintiff had sought was for restoration of possession if he was not found in possession and/or restoration of possession if he was dispossessed. In course of proceeding the trial Court found his possession and confirmed his possession. The other reliefs of restoration could not be granted in the aforesaid circumstances. It was therefore deemed to have been rejected. Admittedly, the petitioner was dispossessed soon after the judgment and decree. Those events were subsequent events which were not carried by the judgment and decree. It is not the plaint or the relief sought for which controls the judgment and decree, it is the judgment and decree which gives the relief. Here as no relief of restoration was given the decree was rightly held to be unexecutable. In my view there is specific remedy available to the petitioner in terms of Section 6 of the Specific Relief Act as the petitioner is said to have been dispossessed immediately after the judgment and decree and judgment and decree confirmed his possession, right, title and interest. In that view of the matter, the executing Court has committed no jurisdictional error.