IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R. No. 203 of 2007 Date of decision: 14.3.2008 Chando Ram and others Petitioners Versus Julfi Ram and another Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? For the Petitioners: Mr. Ajay Sharma, Advocate. For the Respondents: Mr. Neeraj Gupta, Advocate Deepak Gupta, J. (Oral) This petition is directed against the order of the learned Civil Judge, Palampur, dated 12.10.2007 in Execution Petition No. 4 of 2002 whereby he has permitted the refund of Rs. 28,320/- to the respondents. Briefly stated the facts of the case are that the respondents, hereinafter referred to as the plaintiffs, filed a suit in the court of Sub Judge Ist Class, Palampur claiming possession of the suit land. The defendants’ plea in the suit was that they had been put in possession by the plaintiffs in terms of an agreement. They also, in the alternative, claimed that they had raised certain 2 construction and caused improvements in the land and were entitled to compensation in lieu thereof. The learned court found that the defendants were actually in possession of the suit land pursuant to an agreement with the plaintiffs. However, the said agreement was held to be void and inoperative and, therefore, a decree of possession was passed in favour of the plaintiffs. With regard to compensation, the court held as follows:- “20. The DWs had not deposed on what basis they have stated the prices of houses etc. to be 21/2 lacs. To this effect, their statements are totally silent. In the situation when the compensation is not specified the Court has to award a nominal compensation. It is true that some construction had been raised on the suit land. According to the PWs there are two rooms or a `Tappri’. But it is a fact that as per previous judgment, the defendants had entered into the land with the permission of the plaintiffs. As such I hold that the defendants are entitled to the compensation i.e. recovery of Rs. 25,000/- by way of Counter claim. Hence this issue is partly decided in favour of the defendants- plaintiffs and partly against them.” Thereafter the plaintiffs filed execution proceedings to get possession of the land pursuant to the decree. In those execution proceedings an order was passed on 18.6.2003 which reads as thus:- 3 “Case called thrice, J.D. not present nor any counsel put appearance on behalf of the J.D. Hence, the J.D. is hereby proceeded against ex-parte. Objection filed by the J.D. that in the said decree, another decree of counter claim was passed by this Court and as such the decree passed by this Court in favour of the plaintiff /D.H. can not be executed to all the plaintiff/D.H. deposit the decretal amount alongwith costs of the suit in this Court. There is no other objection. The said amount has been deposited vide challan No. 15, dated 21.3.2003. Hence, the objections stood met out. As per report made by the Civil Ahlmad no appeal preferred against the judgment and decree. Hence, let a warrant of possession be addressed to the Collector concerned. Copy of decree sheet be also annexed with the warrant of possession as well as PF etc. be filed and report be called for 12.8.2003.” Pursuant to the above order, the warrant of possession was issued and admittedly stands duly executed and the execution dismissed as fully satisfied vide order dated 4th August, 2004. The plaintiffs had deposited Rs. 28,320/- out of which Rs. 25,000/- was the compensation awarded and the balance was the cost of the counter claim. Thereafter in November, 2005 an application was moved on behalf of the plaintiffs that in fact while executing the warrant of 4 possession it had been noted that there is no construction on the land of which possession was granted and, therefore, the amount of Rs. 28,320/- be refunded to the plaintiffs. This application has been allowed by the impugned order. Hence the present revision petition. I have heard Mr. Ajay Sharma, learned counsel for the defendants and Mr. Neeraj Gupta, learned counsel for the plaintiffs. It is crystal clear that a decree for possession was passed in favour of the plaintiffs and simultaneously a decree of Rs. 25,000/- on account of compensation alongwith costs was passed in favour of the defendants. When the plaintiffs sought execution of the decree, an objection was raised by the defendants that the decree in favour of the plaintiffs should not be executed till they comply with that portion of the decree which is against them. On this, the plaintiffs deposited a sum of Rs. 28,320/- without any reservation. It appears that after this amount was deposited the defendants did not appear in court and decree for possession was executed. More than 11/2 years later this new plea has been taken for refund of the amount. 5 Mr. Neeraj Gupta, Advocate, urged that the application was filed only after the report was given and that no structure had been found on the land in question. Even if that be so, the decree passed in favour of the plaintiffs was not for the structure. It was for possession of the vacant land after demolition of structure. The plaintiffs were only entitled to get possession of the vacant land. Therefore, I find no merit in this contention. The executing court has fallen into grave error in going behind the decree itself. The decree was for recovery of a sum of Rs.25,000/-. The executing court had no jurisdiction to enter into the question as to on what account this amount had been awarded and whether the amount awarded was just and proper. The defendants had claimed a much higher amount as compensation, but the court below without giving any reasons awarded Rs. 25,000/- as compensation in lumpsum. This decree attained finality and was not challenged by any party. Therefore, the said decree had to be executed. In view of the above discussion I find that the executing court has committed a serious error of jurisdiction since it could not have gone beyond the decree. In fact the learned executing court has also gone 6 beyond the earlier order passed by its predecessor. Therefore, the order dated 12th October, 2007 is quashed and set aside. I have been informed at the Bar by Mr. Ajay Sharma, Advocate, that the sum of Rs. 28,320/- has been withdrawn. If that be so, the defendants shall be at liberty to apply for restitution of the amount alongwith interest and costs. March 14, 2008(K) ( Deepak Gupta ), J.