C.R.No.3436 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3436 of 2011(O&M) Date of decision: 24.5.2011 Prem Chand ….Petitioner Vs. Beena Rani ….Respondent CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Amit Arora, Advocate for the petitioner. Jaswant Singh, J Judgment-debtor/petitioner has filed the present petition under Article 227 of the Constitution praying for setting aside the impugned order dated 29.4.2011 (P.5) passed by the learned Executing Court, Ludhiana whereby the application filed by the Decree holder-respondent for demolition of the structure has been allowed and warrant of possession has been issued after demolition of the structure over the first floor of the suit property. Brief facts of the case are that Raj Kumar (husband of respondent-plaintiff) filed a Civil Suit No.174 of 24.4.1993 against the defendant/JD-petitioner for specific performance to execute the sale deed of one House bearing Municipal No.B.I 1635 (old) B.I 5/3 (new) as shown in red ink in the site plan attached with the plaint in favour of the plaintiff. The suit was decreed ex parte with a direction to the JD-defendant/petitioner to execute the sale deed in favour of the plaintiff-DH (husband of the respondent) regarding the suit property within 2 months on deposit of balance sale consideration vide judgment and decree dated 16.12.1997 (P.1) passed by learned Civil Judge (Jr. Division), Ludhiana. On the basis of C.R.No.3436 of 2011 #2# judgment and decree dated 16.12.1997 (P.1), decree holder filed an execution No.2/19.1.1998. During the pendency of the execution petition, an application dated 3.2.2011 (P.3) for removal of construction on the first floor of the house made by the JD after passing of the said judgment and decree during the pendency of the execution application. Upon notice, the application was opposed and after hearing both the sides, the same has been allowed by the learned Civil Judge (Jr. Division), Ludhiana vide the impugned order dated 29.4.2011 (P.5), hence the present petition. It is argued by learned counsel for the petitioner-JD that the judgment and decree dated 16.12.1997 (P.1) has been obtained ex parte by playing a fraud and against that, petitioner-JD has filed an application under Order 9 Rule 13 CPC for setting aside the same, which is undisputedly pending. Learned counsel further submits that one Fakir Chand along with Balu Ram was the owner of the property in dispute and after the death of Fakir Chand, his widow Jito and son Ashok Kumar, Kala and Bittu were residing in that very house. It is further submitted that said Prem Chand/JD- petitioner had no saleable interest in the suit property as he was/is the owner to the extent of 4-1/2 sq. yards only. It is also argued that the construction had been raised by said Fakir Chand during his life time. After hearing learned counsel for the petitioner and perusing the paper book, this court is not convinced with the contentions raised by the learned counsel for the petitioner, therefore, the present petition deserves dismissal due to the following reasons. Admittedly, an ex parte judgment and decree dated 16.12.2007 (P.1) passed against Prem Chand-defendant/petitioner regarding the C.R.No.3436 of 2011 #3# property in dispute on the basis of an agreement to sell dated 20.2.1990 executed by the defendant-petitioner in favour of the plaintiff-Raj Kumar. Till date, said decree has neither been set aside nor stayed by any court of competent jurisdiction. On the basis of that an execution petition is pending and during the pendency of that execution petition, an application for removal of construction made after passing of judgment and decree dated 16.12.1997 filed, which has been allowed by the learned Executing Court. Merely by alleging that the aforesaid judgment and decree was obtained by fraud and an application under Order 9 Rule 13 is pending is no ground to set aside the impugned order as the law is well settled that the Executing Court cannot go behind the decree and whatever is the decree that is to be executed. The fact remains that as on today the judgment and decree dated 16.12.1997 may be ex parte but that is a valid decree and executable under law. The contention that Prem Chand/JD-petitioner had no salable interest in the suit property as he is alleged to be the owner to the extent of only 4/1- 2 sq. yard of the suit property is of no use, at this stage , as that will amount to interference in the judgment and decree dated 16.12.1997. Moreover, the objections filed by third party on the same ground that Prem Chand/JD- petitioner is not the owner in possession have already been dismissed vide order dated 19.11.2010. Keeping in view the facts and circumstances discussed hereinabove, no illegality or perversity can be found with the impugned order dated 29.4.2011 (P.5) passed by the learned Executing Court, Ludhiana warranting interference under Article 227 of the Constitution. Dismissed. May 24, 2011 ( JASWANT SINGH ) manoj JUDGE