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Smt. Cunni Devi And Another v. Incharge District Judge Agra And Others - WRIT - C No. 9459 of 2006 [2006] RD-AH 3744 (16 February 2006)


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Court No. 23

Civil Misc. Writ Petition No. 9459 of 2006

Smt. Chunni Devi & another Vs. Incharge District Judge, Agra & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

In this writ petition orders of the courts below dated 15.12.2005 and 12.1.2006 are under challenge.

A suit for specific performance of contract and possession over the land in dispute was decreed by the trial court and the said decree was confirmed by the appellate courts. The sale deed then was not executed, as per the directions in the decree. Hence an execution case was filed by the decree holder and the sale deed was executed. Thereafter, the proceeding for possession over the property in suit are going on in the execution proceeding. The executing court issued a writ of possession, which was resisted to and the petitioners filed title suit as well as their objections in respective courts. While dealing with the objections of the petitioners, the executing courts did not find any merit in the same and rejected it vide impugned order dated 15.12.2005. The appeal of the petitioners before the District Judge was also dismissed summarily vide order dated 12.1.2006.

Learned counsel for the petitioners contends that they have their 'pakka' constructed building in the disputed land, the possession of which is not to be legally delivered to the decree holder respondents. In the aforesaid execution proceeding the petitioners were not made parties nor the decree passed in the suit is binding upon them and as such if some decree in relation to a land over which they have title and possession, it cannot be executed against them.

From a perusal of the aforesaid impugned order passed by the executing court, it is evident that in so-far-as the execution part is concerned, the writ issued by the court relates to a land over which the decree was passed and nothing beyond that property is a property made subject of that execution. Therefore, in case the petitioners have any title over the property, the remedy available to them was a suit for declaration of their right in that land and over the building existing thereon. The executing court has to proceed in accordance with decree passed in the suit. However, it is settled that the executing court is not supposed to go behind the decree. No delivery of excess possession is also possible in any execution case of the type which we have in the present. Therefore, the only way out now which is available to the petitioners is the declaration of their title over the property and the rejection of their objections by the executing court is not challengeable in extra ordinary jurisdiction of this court.

Learned counsel further submits that there is some temporary injunction order passed in the suit filed by him but the executing court is not making compliance in that regard. The court is executing the decree in violation of or not of a particular order of another court, is not to be looked into in the present writ petition and in case there is definite violation of some injunction order, the remedy available in that regard should be taken recourse of and that remedy obviously is not by way of a writ petition before this court.

With the aforesaid observations, the writ petition stands disposed of.




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