Orissa High Court
Gopal Barik vs Bhima Barik And Anr. on 21 September, 1992
Equivalent citations: 1993(I)OLR139
JUDGMENT S.C. Mohapatra, J.
1. Judgment-debtor is petitioner in this Civil Revision.
2. Plaintiff filed a suit for title, confirmation of possession and in case it is found that plaintiff has been dispossessed during pendency of the suit for recovery of possession. Plaintiff also prayed for permanently restraining defendant from interfering with his possession. Suit was decreed by finding that plaintiff has title and possession over the property and consequently defendant was permanently restrained. There after, plaintiff as decree-holder filed execution for recovery of possession from defendant judgment-debtor. Objection was filed by judgmentdebtor that in view of the nature of the decree, there is no scope for recovery of possession. Executing Court having rejected the objection by the impugned order the same is assailed in the present Civil Revision.
3. Applying the principle that executing Court cannot go behind the decree. Mr. S.P. Misra, learned counsel for the petitioner submitted that the decree as it stands does not authorise recovery of possession and accordingly, the decree where possession of decree-holder has been confirmed, there is no scope for recovery of possession of the land which is declared to be in possession of the decree-holder. This submission would have required consideration if the point urged would not have been decided by this Court in the decision reported in AIR 1988 Orissa 9 (Biswanath v. Smt, Uttara Bewa and Ors.). In this decision, the question was whether execution for delivery of possession of decree where possession of the decree-holder was confirmed is permissible. Plaintiff-decree-holder in the reported decision prayed for confirmation of possession or in the alternative recovery of possession. Court passed the decree confirming possession. It was held that on the finding that plaintiff was in possession. Court did not feel the necessity of directing recovery of possession. Where the plaintiff asserts that defendant was disturbing possession and prayed for recovery of possession if it is found that he has been dispossessed, executing Court can interpret the decree to come to conclusion that the plaintiff not being in possession, the decree envisaged recovery of possession. This principle is directly applicable in the present case and the question of recovery of possession does not amount to going behind the decree but is interpretation of the decree which is not clear.
4. To avoid the technical difficulties and to protect a decree-holder after obtaining the decree, from enjoying the fruits of the decree, Code of Civil Procedure has been amended. Where the execution would be in respect of some relief which was specifically refused or is inconsistent with the relief granted, executing Court cannot go behind the decree to execute the same. Where, however, the decree is not inconsistent with the relief sought to be executed and is in furtherance of the same, it would come within the domain of interpretation of the decree. Hence. I am not inclined to accept submission of Mr. Misra. To accept submission of Mr. Misra would be to defeat the object of the Parliament to protect decree-holder. A judgment-debtor who is vanquished in the legal battle cannot be allowed to enjoy the property which Court on trial held that he is not entitled to.
5. Mr. Misra submitted that a decree for permanent injunction can be executed and therefore, there was no necessity to interpret the decree in this case. In view of this decree the principle laid down in AIR 1988 Orissa 9 (supra) is not attracted. It is true that on getting possession through Court if defendant judgment-debtor decree-holder still disturbs in possession of the decree-holder, the decree for permanent injunction can be executed which has remained alive to that extent. That does not. however, lead to inference that recovery of possession through Court has been denied.
6. In result, Civil Revision has no merit which is accordingly, dismissed. No costs.