PARULBALA DASI Vs. GOPAL SHARMA

JUDGEMENT

(1.) HEARD learned counsel appearing for the petitioner. No one appears on behalf of the opposite party in spite of service of notice.

(2.) IT appears that the plaintiff petitioner filed a suit for eviction being title suit No. 33/87 in the Court of Munsif, Chaibasa for a decree of eviction of the defendant from the suit property. The suit was dismissed by the Additional Munsif. Against that appeal was preferred by the plaintiff petitioner which was eventually allowed and the suit was decreed in 1993. The petitioner then levied eviction case No. 4/84. In the said execution proceeding the opposite party filed an objection which was registered as miscellaneous case No. 2/97. In the said miscellaneous case, the opposite party filed an application for inspection of the suit property by appointing a survey commissioner on the ground inter alia that there is Kali temple in the suit premises and hence decree cannot be executed. The executing Court namely Munsif Chaibasa by order dated 13.6.2001 appointed a Commissioner for legal investigation and directed the Judgment debtor to file questionnaire to be answered by Commission. In the said order 13.6.2001 it was recorded that the counsel of the Decree Holder agreed in the Judgment regarding the existence of temple In the suit premises. Subsequently, the petitioner decree holder filed an application denying the fact that he ever agreed/conceded to claim of the judgment debtor and prayed for correction of the order which was rejected.

(3.) BE that as it may, it appears to me that executing Court has failed to consider the scope of the provisions of the Section 47 of Code of Civil Procedure. It is well settled that the executing Court cannot go beyond the decree and is bound to execute the decree as it is. As noticed above in the eviction suit the defendant took a stand that in one of the room there is temple used for public purposes which was disbelieved by the appellate Court. In that view of the matter the executing Court cannot again reopen the matter and decide whether a temple exist in the suit premises. The executing Court has traveled beyond the decree by passing the impugned order.