IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.174 of 2008 Alok Nandan Charan Pahari @ Alok Nandan Pahari son of late Deo Nandan Prasad proprietor of M/s International Paint Manufacturing Company Mohalla Gosainbagh Gurudwara Road PS Kotwali Dist. Gaya Petitioner Versus 1. Bihar Industrial Area Development Authority, Udyog Bhavan, Patna through is Managing Director 2. Managing Director, Bihar Industrial Area Development Authority, Udyog Bhavan, Patna 4 3. Development Officer(Chemical), Bihar Industrial Area Development Authority, Udyog Bhavan, Patna 4 4. Area Incharge, Bihar Industrial Area Development Authority, Gaya Dobhi Road, Gaya Opposite parties For the petitioner: Mr Anil Kumar Sinha, Advocate -------------- 03/ 23.11.2009 Heard learned counsel for the petitioner. 2. This civil revision has been filed by the plaintiff- petitioner challenging order dated 05.10.2007 by which learned Execution Munsif, Gaya rejected his application dated 10.09.2007 for recalling his earlier order dated 18.07.2007 (Annexure 3) passed in Execution Case no. 13 of 2005 by which the learned court below has held that the Execution case no. 13 of 2005 was not maintainable as decree in question was merely declaratory and there was no occasion for any execution case. 3. Title Suit no. 59 of 1991 was filed by the plaintiff- petitioner for declaration that the plaintiff was legally entitled to get the suit land transferred in his name and the plaintiff was not liable to be charged with any interest and that the plaintiff was entitled to adjustment of the value of the land encroached. The said suit was decreed ex-parte by the learned Munsif I, Gaya vide his judgment and order dated 06.04.1998 and the decree was signed on 20.4.1998 - 2 - (Annexures 1 series). 4. Thereafter the plaintiff-petitioner filed an application on 01.10.2005 (Annexure 2) which was numbered as Execution Case no. 13 of 2005 for issuance of notice directing the defendants-opposite parties to execute the deed of transfer with respect to the suit property within a fixed time and if they failed to comply the said direction the deed of transfer be executed by the court itself and delivery of possession of the suit land be affected in favour of the plaintiff- petitioner deducting the encroached portion by the owner of the suit land adjusting the price. 5. The learned Executing Court considered the entire matters in detail and vide its order dated 18.07.2007( Annexure 3) found that the decree in question was absolutely declaratory in nature and hence it did to require any help of the executing court as no decree for any type of execution was passed by the learned trial court. Hence it was held that the executing court had no role to play in the execution of the decree in question and the execution case was dismissed as not maintainable. 6. It transpires that thereafter on 10.09.2007 (Annexure 4) the plaintiff-petitioner filed another application for recall of its earlier order dated 18.07.2007. The learned court below again considered the matter in detail and found that the decree in question was merely declaratory in nature which did not require any execution by the Executing court and hence that court had no role to play and accordingly the said application filed by the plaintiff-petitioner was - 3 - rejected by the learned court below vide its order dated 05.10.2007 against which the instant civil revision has been filed. 7. Learned counsel for the plaintiff-petitioner vehemently challenges the aforesaid order of the learned court below stating that nature of the relief sought by the plaintiff was such that it required execution which was also necessary for avoiding multiplicity of suit or proceeding. In that regard he also relies upon the provision of section 28(3) of the Specific Relief Act, claiming that it was the duty of executing court to execute the reliefs claimed by the decree holder (petitioner) . 8. From the facts and circumstances of the case, it is quite apparent that the provision of section 28(3) of the Specific Relief Act,1963 provides that if the purchaser or the lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:- (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. 9. In the instant case, admittedly, no such application for any further relief has been made by the plaintiff in the suit rather only - 4 - after the said suit which was throughout till its conclusion a declaratory suit, the said plea was taken in the executing court. In the said circumstances, the said provision of law is not applicable to the facts and circumstances of the case rather the law is well settled that the Executing court can not go beyond the decree. 10. Furthermore, this Court also finds that since the relief claimed in the suit and the judgment and decree passed therein being merely with respect to some declaration, the executing court was quite justified in holding that it had no role to play in the execution of such a decree. 11. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned order of the learned court below nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed. shahid (S.N.Hussain, J)