IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12792 of 2010 1. KASHINATH SAH S/O GOPAL JEE SAH R/O VILL SHAHPUR PATTI, P.S. SHAHPUR, DISTT-BHOJPUR 2. JYOTI SAH S/O KASHINATH SAH R/O VILL SHAHPUR PATTI, P.S. SHAHPUR, DISTT-BHOJPUR 3. RAM KUMAR SAH S/O KASHINATH SAH R/O VILL SHAHPUR PATTI, P.S. SHAHPUR, DISTT-BHOJPUR Versus 1. KAPIL PRASAD S/O LATE VISHWANATH SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 2. OM PRAKASH PRASAD S/O LATE VISHWANATH SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 3. PRADEEP KUMAR S/O LATE VISHWANATH SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 4. SHIVAJEE PRASAD S/O LATE VISHWANATH SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 5. RAJESH PRASAD S/O LATE VISHWANATH SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 6. BALDEO PRASAD S/O KAPIL PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 7. KRISHNA PRASAD S/O KAPIL PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 8. GANESH PRASAD S/O GOPAL JEE SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 9. SHEO KUMAR PRASAD S/O GANESH PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 10. JITENDRA PRASAD S/O GANESH PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 11. AJAGAIBI PRASAD S/O GANESH PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 12. SIDHNATH S/O LATE BHAGWAN JEE SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 13. UTTAM S/O LATE BHAGWAN JEE SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 14. MOST. DEOVANTI KUER W/O LATE BHAGWAN JEE SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 15. SEEMA KUMARI D/O LATE BHAGWAN JEE SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 16. DEEPAK KUMAR MINOR S/O LATE BHAGWAN JEE SAH UNDER THE GUARDIANSHIP OF THEIR MOTHER MOST. DEOVANTI KUER R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 17. BHARAT KUMAR MINOR S/O LATE BHAGWAN JEE SAH UNDER THE GUARDIANSHIP OF THEIR MOTHER MOST. DEOVANTI KUER R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 18. MALTI KUMARI D/O LATE BHAGWAN JEE SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 19. KALYANI KUMARI D/O LATE BHAGWAN JEE SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 20. ARTI DEVI D/O LATE BHAGWAN JEE SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 21. SURENDRA PRASAD S/O JAWAHAR SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 22. BIMLA DEVI WIDOW OF LATE GUPTESHWAR PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 23. SANGEETA KUMARI D/O LATE GUPTESHWAR PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 24. RUBY KUMARI D/O LATE GUPTESHWAR PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 25. PRABHA KUMARI D/O LATE GUPTESHWAR PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 2 26. MOSTT. RITA KUER WIDOW OF LATE RAJA NAND PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 27. BINOD PRASAD S/O LATE RAJA NAND PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 28. BALMIKI PRASAD S/O LATE RAJA NAND PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 29. RAMJEE PRASAD S/O SURENDRA PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 30. MOST. REKHA KUER W/O LATE NARAYAN PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 31. SONU MINOR SON OF LATE NARAYAN PRASAD , UNDER THE GUARDIANSHIP OF THEIR MOTHER MOST. REKHA KUER R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT- BHOJPUR 32. PARSURAM MINOR SON OF LATE NARAYAN PRASAD , UNDER THE GUARDIANSHIP OF THEIR MOTHER MOST. REKHA KUER R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 33. NAND KISHORE PRASAD S/O SURENDRA PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 34. RAJ KISHORE PRASAD S/O SURENDRA PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 35. NANDJEE PRASAD S/O GUPTESHWAR PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 36. VINDHYACHAL PRASAD S/O GUPTESHWAR PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 37. JAGDISH PRASAD S/O BADURI SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 38. KRISHNA PRASAD S/O BADURI SAH R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 39. CHANDRA PRAKASH S/O JAGDISH PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 40. BALIRAM S/O JAGDISH PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT- BHOJPUR 41. PRASHURAM PRASAD S/O JAGDISH PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 42. JAI PRAKASH S/O KRISHNA PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT-BHOJPUR 43. GUDDU S/O KRISHNA PRASAD R/O VILL SHAHPUR, P.S.SHAHPUR, DISTT- BHOJPUR 44. DILIP KUMAR GUPTA S/O BHAGIRATHI DEVI, W/O RAMANAND SAH R/O VILL BUXAR, P.S.BUXAR, DISTT-BUXAR 45. ASHOK KUMAR GUPTA S/O BHAGIRATHI DEVI, W/O RAMANAND SAH R/O VILL BUXAR, P.S.BUXAR, DISTT-BUXAR 46. SANJAY KUMAR GUPTA S/O BHAGIRATHI DEVI, W/O RAMANAND SAH R/O VILL BUXAR, P.S.BUXAR, DISTT-BUXAR 47. KEDAR PRASAD S/O TARAMUNI DEVI, W/O LATE BIHARI SAH R/O VILL TARI MOH, P.S.ARA NAGAR, DISTT-BHOJPUR 48. NIRMAL PRASAD S/O TARAMUNI DEVI, W/O LATE BIHARI SAH R/O VILL TARI MOH, P.S.ARA NAGAR, DISTT-BHOJPUR 49. KAMAL KISHORE PRASAD S/O TARAMUNI DEVI, W/O LATE BIHARI SAH R/O VILL TARI MOH, P.S.ARA NAGAR, DISTT-BHOJPUR 50. RADHA DEVI W/O KANHYAIYA SAH R/O VILL TARI MOH, P.S.ARA NAGAR, DISTT-BHOJPUR 51. LALMUNI DEVI W/O SUDAMA SAH R/O VILL & P.O.NAYA BHOJPUR, DISTT- BUXAR 52. LALTI DEVI W/O RAMESHWAR SAH R/O VILL MURADABAD SASARAM, P.S.& DISTT-SASARAM, ROHTAS 53. RADHIKA DEVI W/O SADAN SAH R/O VILL & P.S.MOHANIA, DISTT-BHABHUA 54. VINDHYACHAL DEVI W/O SUNDAR SAH HALUAI R/O MOH & P.S.MITHAPUR, DISTT-PATNA ----------- For the Petitioner:- Mr. Binod Kumar Singh, Advocate. 3 For the Respondents :- Mr. S.S.Dwivedi, Sr. Advocate with Mr. Anish Chandra Sinha, Advocate ----------- 05. 29.03.2011 Heard learned counsel for the petitioner and the respondent no.12 who has appeared suo moto. The petitioner assails the order dated 10.6.2009 of the Sub-Judge IV, Ara, in Execution case no.1 of 2008. It directs the Decree Holder – Plaintiff- Petitioner to amend the Execution application by deleting Jamima no.(C) of Schedule I to the plaint. Learned counsel for the petitioner submits that T.S. no.126 of 1989 was filed seeking declaration that the property at Schedule I of the plaint had been partitioned between him and the defendant 1st set and 3rd set. Alternatively if the Court finds that partition had not been effected it should do so and carve out the shares. The properties at Schedule II and III should be partitioned. The trial court by order dated 22.9.1994 held that schedule I property stood partitioned in terms of the partition dated 4.7.1977 and the plaintiff was in already in 4 possession of his share at Jamima (C) of schedule I consisting of four rooms in the building. It granted him ¼ share in schedule II property and 1/12 share in schedule III property. Preliminary decree was drawn up accordingly. F. A. no. 344 of 1994 against the same was dismissed. Final decree was prepared on 26.11.2001. The property was mutated in the name of the petitioner on 25.2.1987. The respondent no.12 had objected to the report of the pleader commissioner and urged at the time of final decree that the petitioner was in possession of the properties at Jamima (C) to schedule I. The petitioner was forcibly dispossessed in or about 2007 of the properties at Jamima (C). He is entitled to be restored possession of the same in the execution proceedings. The Executing Court is duty bound to consider subsequent events during the pendency of the execution case with regard to the rights and contentions to determine the rights finally and enforce it. Any direction to seek remedy afresh in separate proceedings shall be defeating the Decree obtained after contest, multiply litigation and give a benefit wrongly to the person who acted forcefully. 5 The respondent no.12 contested to urge that no decree of possession was sought or granted in respect of the property at Jamima (C) to schedule I. The preliminary decree gave a declaration acknowledging an earlier partition and that the parties were in possession of their respective shares. The respondent had objected to the pleader commissioner report at the time of final decree that it had to be confined to schedule II and III properties only. The Execution case would lie against the final decree only which was with regard to schedule II and III alone. No appeal has been filed against the final decree. The property in question stands mutated in the name of respondents on 2.11.2006. At no stage has any application been filed by the petitioner before the trial Court after judgment that he has been dispossessed. This has been stated in the present proceedings for the first time this Court. Reliance was placed on 1951 SCR 292 (V. Ramaswami Aiyengar v. Kailasa Thevar) at paragraph 8 observing :- “8. The learned Judges appear to have overlooked the fact that they were sitting only as an executing court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It 6 is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.” The Court on perusal of the preliminary decree dated 22.2.1994 finds it effects partition in respect of schedule II and III property only to the extent of ¼ and1/12 share. The respective possession of Schedule I property being an accepted fact did not form part of the preliminary decree. The final decree dated 26.11.2001 is limited to the shares in Schedule II and III properties alone. That undoubtedly takes it beyond the pale of any controversy that no decree was in fact passed with regard to the schedule I property. Learned Counsel for the petitioner has placed reliance upon (1973) 2 SCC 40, Bhavan Vaja v. Solanki Hanuji Khodaji Mansang, at paragragph 20. What has been observed therein cannot be read in isolation but has to be read in context of the facts of that case discernable at paragraph 5 and 18 making the same inapplicable in the facts of the present case:- “5…..Consequently the creditors were directed to restore possession of the houses and fields mortgaged 7 to them excepting those in respect of which occupancy rights under the Land Reforms Act had been granted to the tenants…… The appellate court made some change in that award……. 18. The fields mentioned above are in the possession of Respondent 3 and Respondent 5. From all these facts, it is obvious that those fields were not the subject-matter of the appeal against the fresh award. In the body of the judgment, the appellate court did not refer to those fields. No argument appears to have been advanced in respect of those fields. Hence, when the appellate court directed delivery of the mortgaged properties, it can only mean those mortgaged properties which were the subject- matter of the appeal. 20. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it….” Learned Counsel for the petitioner has next relied upon 1991(1) PLJR 115 (The Bihar Nurses Registration Council and ors Vs. Sri Harendra Prasad and others) to support the 8 contention that all issues connected with, subsequent events and incidental can be decided in the execution proceedings with regard to schedule I property. The argument is best answered by 1995 Supp (3) SCC 684 State of Punjab v. Buta Singh at paragraph 3 holding as follows : - “3. It is obvious that the executing court had no jurisdiction to direct the recovery of any amount which was not granted by the decree under execution since the decree was for a mere declaration. The order of the executing court being without jurisdiction, it was the duty of the High Court to have corrected that error of jurisdiction.” The respondents have relied upon a Bench decision reported in 2007 (1) PLJR 182 ( Most.Fudni devi Vs. Chotelall Sah & ors). The Suit was for declaration of title and confirmation of possession. If found not to be not in possession or dispossessed decree for possession be passed. The Court confirmed possession. Dispossession was done after the Suit was decreed. The Executing Court refused to order restoration of possession as being beyond the Decree. A.I.R. 1980 Orissa 9 sought to be presently relied upon also was 9 referred to by the petitioner therein unsuccessfully. The trial court order was upheld. The issue having been decided by a Bench of coordinate jurisdiction, having no reason to differ with the same reference may usefully be made to (2009) 5 SCC 634 Century Textiles Industries Ltd. v. Deepak Jain, at parargraph 23 observing as follows : - “23……… Time and again it has been emphasised that judicial propriety and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs reconsideration, he should not embark upon that enquiry, sitting as a Single Judge, but should refer the matter to a larger Bench. Regrettably, in the present case, the learned Single Judge departed from the said healthy principle and chose to re-examine the same question himself.” The Court finds no merit in this application. The same is dismissed. Snkumar/- ( Navin Sinha, J.)