MOSTT. SUGIA AND OTHER vs BULU DEVI AND OTHER

Aggrieved of order dated 04.02.2006 passed in Execution Case No.27 of 2004, the decree holder has approached this Court.

Eviction Suit No.5 of 1992 was instituted for a decree of ejection of the defendants from schedule 'A' property and khas possession of schedule

property to the plaintiffs. Description of schedule 'A' property has been given as: Village-Okni No.1, Thana Hazaribag No.138, Khasmahal Lease

Holding No.98, Plot Nos. 714 and 715, Area 0.03 ½ acres towards north consisting of four rooms, Verandah, Angan, Latrine etc. Boundary of

schedule 'A' property has also been disclosed in the schedule of property. Eviction Suit No.5 of 1992 was decreed vide judgment dated 27.01.1997,

ex-parte against the defendant nos. 1 to 4 and 6. In the Execution Case No.27 of 2004/1 of 1999, an application under section 47 CPC was filed by

the judgment-debtor nos. 1,2,3 and 5 to 6. This application was dismissed on 02.03.2005. On the application for appointment of survey knowing

Pleader Commissioner a report of the Nazir was received that due to objection by the judgment-debtors delivery of possession of the decreetal

property could not be affected. When the petitioner filed an application on 01.10.2005 for deployment of police force, the executing court by an order

dated 04.02.2006 directed the decree holder to explain whether two rooms in possession of Smt. Bulu Devi are situated over Plot Nos. 714 and 715 or

not.

Except for the limited grounds on executability of the decree under section 47 CPC, the executing court is under a duty to execute the decree in its

letters and spirit. It is well-settled that the executing court cannot go beyond the decree or behind the decree and on mere technical objections decree

cannot be frustrated. In view of the specific description of schedule 'A' property which is situated on a part of Plot Nos.714 and 715, all that the

executing court could have done was to get measurement of the suit scheduled property in terms of the decree.

Accordingly, finding serious error in the approach of the executing court, impugned order dated 04.02.2006 is set-aside. The executing court is

directed to take necessary steps for measurement and identification of the decreetal property in terms of description under schedule 'A' appended to

the plaint of Eviction Suit No.05 of 1992.

The writ petition stands allowed.

Lower court records shall be transmitted to the court concerned.