IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1064 of 2006 SIDHESHWAR RAM Versus KAMAL KISHORE PRASAD ----------- 5. 17.12.2008 Heard Mr. Pushkar Narain Sahi, learned counsel for the petitioner and Mr. Arun Kumar Arun, learned counsel for the opposite party. The first part of the objection of the petitioner before the court below as with regard to maintainability of the execution proceeding was rightly rejected, inasmuch as the court below was bound by an inter party judgment recording directly on that very issue that such an execution proceeding at the instance of the plaintiff- decree holder- opposite party was being rejected. This aspect of the matter in fact having been gone into in the order of this Court dated 5.1.2004 in C.R.No. 398/2001, the court below also had no escape from this position and therefore, its reasoning in the last paragraph of the impugned order as with regard to rejecting the objection of the petitioner so far it related to maintainability of the execution proceeding, does not call for any interference by this 2 court. Mr. P.N.Shahi, however, by referring to the application filed for execution by the plaintiff opposite party has tried to contend that there was a dishonest intention on the part of the plaintiff to claim the entire mortgaged property, whereas the decree in his favour was confined to only 2 kathas of land. He would, therefore, submit that when the court below had passed an order rejecting the application of the petitioner as against that execution petition, the presumption will now be that the entire application of the plaintiff opposite party claiming the entire mortgaged property for its being executed was allowed. He would submit that that cannot be allowed because such was not scope of judgment and decree sought to be executed. To that extent Mr. Shahi seems to be correct and ultimately Mr. Arun also would concede that the judgment in its operative portion has made it clear that the plaintiff would be entitled for getting the mortgaged property which he had purchased. 3 His purchase is however confined to only 2 kathas of land. That being so, this Court would clarify that while the court below would allow the plaintiff opposite party to execute the decree but such decree will be executed only in respect of 2 katha of land as specifically described in the sale deed of the plaintiff opposite party. With the aforementioned observation and clarification, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/