IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SIXTH DAY OF NOVEMBER TWO THOUSAND AND TEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.4466 of 2008 Between: Malisetty Ramesh Babu …. Petitioner AND Perala Koteswaramma & 3 others …. Respondents The Court made the following order: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.4466 of 2008 ORDER: The Civil Revision Petition is directed against the dismissal of E.P.No.31 of 2006 in O.S.No.242 of 2003, on the file of the Principal Junior Civil Judge’s Court, Chirala, by an order, dated 17.06.2008. 2. The decree holder filed O.S.No.242 of 2003 against the judgment debtors for a mandatory injunction directing removal of structures in Item No.2 of the plaint schedule property shown as ‘A B C D’ and ‘C D E F’ in the plaint plan and for restraining the judgment debtors from making obstructions in the said Item No.2 of the plaint schedule property for ingress and egress of the decree holder and his family members to reach Vadarevu road. The decree holder claimed in the suit that he is the absolute owner of Item No.1 of the plaint schedule under a registered Settlement Deed, dated 28.07.2003, and the road margin on the south of the said Item No.1 is Item No.2 of the plaint schedule. The decree holder alleged that the judgment debtors 1 to 3 raised thatched house and the 4th judgment debtor raised a shop covered by tiles in Item No.2 of the plaint schedule restricting the ingress and egress of the decree holder and his family members to reach Vadarevu road. Hence, the suit. 3. The judgment debtors contended that the dwelling house of judgment debtors 1 to 3 and the shop of the 4th judgment debtor are in existence since more than 20 years and the alleged right of way was never enjoyed by the decree holder or his family members. The recitals in the Settlement Deed, dated 28.07.2003, in favour of the decree holder were manipulated to deny the rights of the judgment debtors and hence, they sought for the dismissal of the suit. 4. The trial Court framed specific issues about the right, title and interest in Item No.2 of the plaint schedule and the entitlement of the decree holder to the mandatory and permanent injunctions. 5. The trial Court examined P.Ws.1 and 2 and D.Ws.1, 2 and 4 and marked Exs.A-1, B-1 and B-2 during trial. The Chief Affidavit of D.W.3 filed by the defendants was eschewed. 6. The trial Court rendered its judgment on 05.11.2005 placing the burden of proof on the plaintiff/decree holder and accepting that Item No.2 of the plaint schedule is in the road margin on which the thatched house of the judgment debtors 1 to 3 and the shop of the 4th judgment debtor are located. For such a conclusion, the trial Court relied on not only the evidence of P.Ws.1 and 2, but the admissions of the witnesses for the defendants about the existence of the structures in the road margin. The trial Court also accepted the recitals in Ex.A-1-Settlement Deed and the evidence of P.Ws.1 and 2 about the right of the decree holder to use the pathway for ingress and egress to the public road. Exercising the judicial discretion available to the civil Court under the Specific Relief Act, 1963, the trial Court felt that on the evidence of the parties, the decree holder has the right of access as claimed and granted the injunctions prayed for by him. The trial Court also referred to a binding precedent by this Court in this regard and specifically decreed the suit for removal of structures shown in ‘A B C D’ and ‘C D E F’ in Item No.2 of the plaint schedule within three months from the date of the judgment, failing which the decree holder was given a liberty to get the structures removed in execution. The judgment debtors were also restrained from making any obstructions in Item No.2 of the plaint schedule property. 7. The decree holder filed E.P.No.31 of 2006 for execution of the said decree through Court and it was resisted on the ground that the property of the judgment debtors and the suit schedule property are no way connected to each other being located in S.Nos.193/1 and 188 respectively which is evident from the map of the Village Survey which is in the custody of the Mandal Revenue Officer, Vetapalem. The judgment debtors, therefore, desired the Execution Petition to fail. 8. During the enquiry into the Execution Petition, the Executing Court examined R.Ws.1 and 2 and marked Ex.X-1 and rendered the impugned order on 17.06.2008. The Executing Court opined that the decree holder did not file any pleadings and that as the first judgment debtor died, no relief can be obtained against him by the decree holder. It also opined that the tiled house is unconnected with the existing hut and there was a difference of survey numbers. The Executing Court also referred to the evidence of the Mandal Surveyor as R.W.2 and Ex.X-1-combined sketch of Kothapet Village issued by Tahsildar, Vetapalem, and opined that it believes that the suit schedule property is in S.No.193/1B while the property of the 4th judgment debtor is in S.No.188. It also commented on the decree holder not filing any sanction plan and the plaint plan not stating about the survey numbers or boundaries properly. The Executing Court felt that the decree holder has also not stated whether the structures are temporary or permanent or were raised just before filing the suit or during the pendency of the suit, and therefore, accepted the contentions of the judgment debtors and dismissed the Execution Petition. 9. The decree holder contends herein that a new plea was sought to be raised by the judgment debtors in execution after the judgment and decree became final and the Executing Court could not have gone behind the judgment and decree. The duty of the Executing Court is just to execute the decree and hence, the decree holder desired the decree to be executed. 10. Sri N.A. Ramachandra Murthy, learned counsel for the revision petitioner/decree holder and Sri Nazir Khan, learned counsel for the 4th respondent/judgment debtor are heard. 11. The point for consideration is whether the impugned order, dated 17.06.2008, is sustainable? 12. I n VEDIC GIRLS SENIOR SECONDARY SCHOOL VS. RAJWANTI AND OTHERS[1], relied on by the learned counsel for the revision petitioner/decree holder, the Apex Court made it clear that the Executing Court was required to execute the decree as made and it had no jurisdiction to widen its scope or to add to it unless a specific question was raised relating to discharge or satisfaction of the decree as envisaged in Section 47 of the Code of Civil Procedure, 1908. It was emphasized that the Executing Court was required to act within the bounds of the decree. That was also a case of a request for execution under Order 31 Rule 32 of the Code of Civil Procedure, 1908, in which two precedents from the Apex Court were also referred to about the Executing Court being bound by the terms of the decree without any power to add to or alter the decree on its notions of fairness or justice. 13. The principle that the Executing Court cannot go behind the decree and has to execute the decree faithfully in terms of Order 21 of the Code of Civil Procedure, 1908, except when a question under Section 47 of the Code of Civil Procedure, 1908, arises or the decree is otherwise legally inexecutable is beyond any debate. 14. In the present case, the parties went to trial with absolute clarity about the property over which the decree holder was claiming a right of ingress and egress to have access to the main road and the parties were also very clear about the location of the thatched hut of the judgment debtors 1 to 3 and the adjacent shop of the 4th judgment debtor in that identified property claimed to be the road margin and described specifically in Item No.2 of the plaint schedule and shown as such in the sketch attached to the plaint. The parties did not go for trial on any question of identity of the property and the positive conclusion of the trial Court on merits leading to the judgment and decree is about the liability of the removal of the structures shown as ‘A B C D’ and ‘C D E F’ in Item No.2 of the suit property as per the plaint plan. The judgment and decree have obviously become final in the absence of any appeal by the judgment debtors and it was for the first time in execution that an attempt is made to claim some confusion about the existence of the property in different survey numbers. The Executing Court, in the impugned order, dated 17.06.2008, in appreciating the evidence produced by the judgment debtors i.e., R.Ws.1 and 2 and Ex.X-1 had, in effect and substance, gone behind the decree in entertaining doubts about the time at which the alleged structures were constructed, the location of the properties in different survey numbers, the lacuna in the plaint plan without proper specification of survey numbers and boundaries and the failure of the decree holder to prove his pleadings in the suit through oral and documentary evidence. In short, the Executing Court went into the merits of the conflicting claims in the suit to conclude that the identity of the respective properties, the location of the alleged structures and the interference with the alleged right of the decree holder were not established to be such as can be the subject of an executable mandatory decree. This is nothing but going behind the decree and deciding questions which ought to have been raised and decided in the suit itself which is impermissible. The right of the decree holder to obtain the decree cannot be the subject of an enquiry in the Execution Petition and the impugned order has to, therefore, be reversed and the Execution Petition has to be restored to file, more so, when the Executing Court itself noted that R.W.1 admitted in her evidence that they have not removed the structures in question even though three months time was given by the impugned decree, dated 05.11.2005. 15. Therefore, the impugned order, dated 17.06.2008, in E.P.No.31 of 2006 in O.S.No.242 of 2003, on the file of the Principal Junior Civil Judge’s Court, Chirala, is set aside and the said Execution Petition is restored to file and the Executing Court shall proceed further in the Execution Petition in accordance with law. The judgment debtors will of course, be given a fresh notice of restoration of the Execution Petition and their right to defend against the Execution Petition on any grounds available to them under law shall remain in tact and be determined by the Executing Court in accordance with law, if any such objections are raised before levying execution. 16. The Civil Revision Petition is ordered, accordingly, without costs. The Executing Court shall dispose of the Execution Petition as per law as expeditiously as possible. _____________________ G. BHAVANI PRASAD, J Date: 26th November, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.4466 of 2008 Date: 26th November, 2010 KL [1] 2007 (4) SCJ 8