CRP 210/2009 BEFORE THE HON’BLE MR. JUSTICE H. BARUAH Heard Mr. P.J. Saikia, learned counsel appearing for the petitioners-plaintiffs as well as Mr. N. Choudhury, learned counsel appearing for and on behalf of opp. Parties-defendants. 2. In this revision the order dated 16-3-2009 passed by Ms. T. Ari, learned Munsiff No. 2, Dibrugarh in Title Execution No. 26 of 2007 arising out of the judgment and decree dated 123-03-1987 passed in Title Suit No. 2 of 1986 has been challenged. 3. The predecessor-in-interest of the petitioners (decree holders) as plaintiff filed Title Suit No. 2 of 1986 in the court of Munsiff No. 2 at Dib rugarh against the predecessors-in-interest of the respondents herein for decree of declaration of his right, title and interest over the land described in sche dule A of the plaint as well as a decree for kash possession of the land describ ed in schedule ’B’ of the plaint which is a part and parcel of the ’A’ schedule land by ejecting the predecessors-in-interest of the respondents. The trial cour t after due trial of the issues framed on the basis of the pleadings of both the parties was pleased to pass the following order while decreeing the suit in fav our of the predecessor-in-interest of the petitioners, which can be reproduced a s under : It is ordered the suit is partly decreed on contest without cost. The right, t itle, interest and possession over the entire suit land excluding ’B schedule la nd of the plaint are declared in favour of the plaintiff. The plaintiff’s prayer for eviction of the defendant by demolishing the defendants house and structure over ’B’ schedule land is rejected Against the decree passed by the trial court, Title Appeal No. 12 of 1987 was fi led before the court of Assistant District Judge No. 1 at Dibrugarh and the lear ned appellate court by its judgment dated 23-06-1994 dismissed the appeal and af firmed the impugned judgment and decree passed by the learned Munsiff. Being agg rieved thereby a second appeal was preferred before this court, which was decide d without framing any substantial question of law. The predecessor-in-interest o f the petitioners herein being aggrieved by the order of this court passed in Se cond Appeal No. 163 of 1994 preferred Civil Appeal No. 1149 of 2001 before the A pex Court and, it vide order dated 9-2-2001 remanded back the matter to this co urt after setting aside the judgment and order dated 23-2-99 with a request to d ispose of the second appeal as indicated above afresh after formulating the subs tantial question of law, if any, arising in the matter. Per direction of the Ape x Court, the second appeal as indicated above was taken and substantial question s of law were framed. By judgment and order dated 15-06-2001 this court affirmed the judgment and decree dated 23-3-1987 passed by the learned trial court in Ti tle Suit No. 2 of 1986. 4. From the above, it would be noticed that this court in Second ap peal affirmed the judgment and decree dated 23-03-1987 passed by the trial court in Title Suit No. 2 of 1987. The decree as declared by the trial court has alre ady been indicated herein before. The trial court declared right, title, interes t and possession over the entire suit land excluding ’B’ schedule land in favour of the plaintiff. But the relief of eviction as prayed for by the plaintiff by demolishing the defendant’s house and structures over the ’B’ schedule land was rejected. 5. The matter having been attained finality the petitioners, the de cree holders filed an execution case being Title Execution No. 26 of 2007 for ex ecution of the decree passed by the trial court. In the application for executio n of the decree, the decree holder, namely, Dipak Kr. Das indicated the mode in which the assistance of the court is sought for and against whom the decree is t o be executed. In column 10 of the application the following mode is asked from the court which can be reproduced below: The D.H prefers for Khas vacant possession by dismantling the Houses and remov e all belongings from the suit premises described in the schedule overleaf. It is prayed that the writ of delivery of Khas and vacant possession be given to the D.H. by the Civil Nazir and remove the J.D, his agent, man etc. with all be longings of the J.D etc. by beat of drum with the help of Police, Lat Mandal, Ar med Forces etc. by breaking lock, if necessary, if there be any lock. In page 2 of the application the description of the property has been indicated. In Column 10, it is nowhere stated from which schedule specifically the judgmen t debtor is to be evicted. In the schedule of the land, land measuring 1 bigha 1 katha 10 lachas has been indicated less than of J.D’s measuring 0 bigha 2 katha 10 lachas, which infers that the eviction ought to be carried out in respect of the remaining land measuring O bigha 4 katha 0 lachas. The trial court in the d ecree clearly indicates that the decree for eviction of the defendant by demolis hing defendant’s houses and structures over the ’B’ schedule land has been rejec ted. ’B’ schedule land is apparently a part and partial of the ’A’ schedule land . In respect of ’A’ schedule land minus ’B’ schedule land, the trial court decla red right, title, interest and possession of the plaintiff. In the decree there is no indication of dismantling the houses and structures, if any on the ’A’ sch edule land over which right, title, interest and possession was declared by the trial court. 6. The executing court on filing of the application for execution, wherein the mode in which assistance of the court is sought for refused to execu te the decree holding that the executing court cannot go behind the decree and i n support of the rejection of the application, the trial court gives reasons why the decree cannot be executed as indicated in the application. It is observed b y the executing court that the execution application being one for delivery of k ash and vacant possession by dismantling the houses and remove all belongings fr om the suit premises as described in the schedule of the execution petition, app lication is not maintainable as there is no decree supporting the same and the e xecuting court cannot go behind the decree. 7. Now, in that view of the reasoning assigned by the executing cou rt it would be appropriate for us to look into paragraph 11 of the plaint which contains the relief/reliefs as sought by the plaintiff. In paragraph-11 the foll owing reliefs are prayed : (1) For declaration of plaintiff’s right, title and interest over the land d escribed in the Schedule-A below and for Khas and vacant possession of the lands described in the Schedule-B below by ejecting the defendant, his dependants and by breaking and removing the houses and structures raised by the defendant over he said land. (2) For costs of the suit, and (3) any other relief or reliefs to which the plaintiff may be found entitled to in law and equity. The trial court as it appears from the decree declared the plaintiff right, titl e, interest and possession over the ’A’ schedule land minus the land described i n schedule ’B’. In the first relief as sought for by the plaintiff no relief for possession is asked for in ’A’ schedule land by the trial court but while decre eing the suit declared right, title, interest and possession also. In paragraph- 1 of the plaint it is averred by the plaintiff that since 1949 the plaintiff has been possessing the land continuously by constructing his dwelling houses and o ther houses over the said land and by planting valuable trees and green vegetabl es on the same. This goes to show that in ’A’ schedule land there are houses and other structures belonging to the predecessor-in-interest of the petitioners. T herefore, though possession is declared in favour of predecessor-in-interest of the petitioners in ’A’ schedule land minus ’B’ schedule land there being existin g dwelling houses and other houses, trees and orchards etc., question of deliver y of possession of the ’A’ schedule land minus ’B’ schedule land cannot arise, i n other words in the ’A’ schedule land there are houses and other structures alr eady in existent belonging to the predecessor-in-interest of the petitioners. In the execution application when the mode has been indicated, the decree being si lent in respect of ’A’ schedule land delivery of kash and vacant possession less land of J.D cannot claim. The trial court by judgment and decree refused to int erfere in the possession of the judgment debtor in respect of the ’B’ schedule l and. Therefore, mode in which the assistance of the court is sought for, for the purpose of execution of a decree is not tenable in terms of the decree passed b y the trial court. The learned executing court, therefore, rightly refused to ex ecute the decree as prayed for. 8. In the case of Bhavan Vaja and others Vrs. Solanki Haniji Mansan g and another; reported in AIR 1972 SC 1371. In paragraph 19 it has been held as under : 19. It is true that an executing court cannot go behind the decree under exe cution. But that does not mean that it has no duty to find out the true effect o f 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 upt o 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 cam e to be used. That is the plain duty of the execution Court and if that ccourt f ails to discharge that duty it has plainly failed to exercise the jurisdiction v ested in it.. Evidently the execution court in this case thought that its jurisd iction began and ended with merely looking at the decree as it was finally draft ed. Despite the fact that the pleadings as well as the earlier judgment rendered by the Board as well as by the appellant Court had been placed before it, the e xecution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree thoug h it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appear to have been unduly influenced by the words of the decree under execution. The appellate Cou rt fell into the same error. When the matter was taken up in revision to the Hig h Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a q uestion of law and it involves no question of jurisdiction to bring the case wit hin Section 115, Civil Procedure Code. As seen earlier in this case the executin g Court and the appellate court had not construed the decree at all. They had no t even referred to the relevant documents. They had merely gone by the words use d in the decree at all. They had no even referred to the relevant documents. The y had merely gone by the words used in the decree under execution. It is clear t hat they had failed to construe the decree. Their omission to construe the decre e is really an omission to exercise the jurisdiction vested in them. The Orissa High Court while dealing with the case of Bishwanath Vrs. Smt. Uttara Bewa and others; reported in AIR 1988 ORISSA 9. In paragraph-6 it held as under : From the decree under execution in the case, it is clear that there is no expre ss direction for delivery of possession of the suit land to the plaintiff. The p rinciple is also well established that ordinarily the executing court cannot go behind the decree. But it is within the competence of the executing court to int erpret the decree sought to be executed and for dong so the court can refer to r eliefs sought in the plaint and discussion in the judgment to ascertain the true import of the decree. In the present case, as noticed earlier, the plaintiff pr ayed for declaration of title, confirmation of possession and in the alternative for recovery of possession of the suit land. She asserted in the plaint that sh e was in possession of the disputed properties but after the entry in the settle ment record of rights in their favour, the defendants were threatening to dispos sess her. The suit was tried and disposed of ex parte. Relying on the evidence o n record, the court found the plaintiff to be in possession of the property and accordingly passed the decree referred to earlier, Apparently, the court did no t feel the necessity to direct recovery of possession in view of its finding tha t the plaintiff was in possession of the suit properties. Taking these facts and circumstances into consideration, the executing c ourt interpreted the decree to mean that the reliefs sought in the plaint were granted in favour of the plaintiff. One of the reliefs sought, was to direct rec overy of possession. Therefore, it cannot be said that the executing court trave led beyond its jurisdiction or committed any illegality in holding the execution case to be maintained overruling the objection raised by the petitioner. Thus there is little scope for this court for interfering in this matter in exercise of its revisional jurisdiction. The view taken by me gains support from the decisions reported in AIE 1972SC 1371 (Bhavan Raja V. Solanki Henuji); AIR 1976 SC 1476 (Mulla Alibhai v. Madrosai Hakima and Coronation High School) a nd (1968) 34 Cut LT 228 (Chandra Sekhar Rath V. Lingaraj Mohapata) . In both the cases (supra) it was held by the respective court th at to find out the true effect of the decree, the executing court in appropriate cases should take into consideration the pleadings as well as proceedings leadi ng up to the decree. It also held that in order to find out the meaning of the w ords employed in the decree, the court has to ascertain the circumstances under which these words came to be used. If the courts failed to discharge such duty i t would be deemed to have failed to exercise this jurisdiction vested in it. The Apex court and the High Court, therefore, gives jurisdiction to the executing c ourt to find out the true efect of the decree even by going into pleadings as we ll as the proceedings leading up to the decree. 9. We have already indicated hereinbefore that the predecessor-in-i nterest of the petitioners only pray for a decree for a right, title, interest i n the ’A’ schedule and kash and vacant possession of the ’B’ schedule land by th e evicting defendant, his dependents by breaking and removing all houses and str uctures constructed by the defendants in the ’B’ schedule land. This being the s pecific relief sought for, the trial court declared right, title, interest and p ossession over the ’A’ schedule land minus ’B’ schedule land. As has been discus sed hereinbefore since predecessor-in-interest of the petitioners had his dwelli ng houses and other constructions in the ’A’ schedule land of which ’B’ schedule is a part and parcel, the decree holders, therefore, cannot ask for execution o f a decree in the manner as indicated in the application since such prayer would be inconsistent with the decree granted by the trial court. Even if a jurisdict ion is given by the Apex Court as well as the High Court to find out the true ef fect of the decree by going into the pleadings and proceedings up to the decree, when the decree is passed in terms of the prayer of the plaintiff in respect of a part/portion of the land described in the schedule, such a decree cannot be e xecuted in the manner otherwise than indicated in the decree. 10. The learned executing court while disposing the application for execution rendered cogent and sufficient grounds, which to the considered view o f this court cannot be overlooked/impeached. 11. This court finds no ground to interfere with the order. It is ac cordingly affirmed. This revision petition stands disposed of. 12. No cost.