ORDER
Rajesh Tandon, J.
1. Heard Sri C. D. Bahuguna, counsel for the revisionists and Sri Pankaj Purohit, counsel for the respondents/opposite parties.
2. By the present civil revisions filed under Section 115 of the Code of Civil Procedure, the revisionists have prayed for setting aside the order dated 11th May, 2005 passed by the Judge, Small Cause Court, Chamoli, Gopeshwar, passed in Execution Case No. 21 of 2004 whereby the Judge Small Cause Court has allowed the objections filed by the opposite parties under Section 47 of the Civil Procedure Code.
3. Briefly stated, the suit for rent and ejectment was filed by late Sri Murli Dhar, father of the revisionists in the year, 1987. The suit was contested by the defendant No. l and was decreed on 16-3-1991.
4. Thereafter a revision was preferred being Revision No. 493 of 2001 by Sri Dalip Singh and Sri Ram Singh, which was dismissed on 16th August, 2004. Following order was passed:
Counsel for the applicant has prayed some time to vacate the premises. The time to vacate the premises is granted to the applicant to vacate the premises by 31-12-2004 subject to the undertaking furnished by the applicant within a period of one month before the J.S.C.C. to the following effect:
(i) The applicant shall give the undertaking that he will vacate the premises by 31-12-2004.
(ii) The applicant shall pay the entire arrears of rent and damages due up to the filing of the undertaking before the J.S.C.C.
(iii) The applicant shall pay regularly damages according to the rate of rent on every first week of the month.
(iv) In case of default, the stay order shall stand discharged and the applicant shall execute the decree forthwith.
Subject to the above the revision is dismissed. There will be no order as to costs.
5. It has come on the record that Ram Singh-opposite party No. 2 has also preferred a SLP before the Apex Court and the same was also dismissed. Thus the order passed by this Court on 16th August, 2004 has be-come final.
During the execution proceedings objections were filed by the transferee as 58-Ga and 63-Ga stating therein that he has purchased l/3rd portion of the premises in dispute by virtue of sale deed dated 29th September, 2004 from the decree holder Govind Singh-defendant No. 2, Sishupal -Singh,, Murili Singh and Bhupal Singh.
6. The executing Court has come to the conclusion that once the judgment debtor has purchased the share of Govind Singh to the extent of 1/3rd, he has stepped into the shoes of the co-owners and has acquired the rights as a co-owner and as such objections were allowed. The executing Court has completely ignored the order of the High Court by which time was allowed to vacate the premises to the tenant.
7. It is well settled that the executing court cannot go beyond the decree as will appear from the definition of Section 47 of the Code of Civil Procedure itself, where it has been held that the executing Court cannot enquire as to whether the decree was passed with the finding and whether the decree was valid or not. Section 47 of the Code of Civil Procedure reads as under:
47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) (****)
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
(Explanation I.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed;
and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section).
8. It has been held in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. that the executing Court cannot proceed beyond the decree. Relevant portion of the said judgment is quoted below:
6. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
9. In P. V. Papanna and Ors. v. K. padmanabhaiah , the Apex Court has observed as under: (para 12)
In other words, once the matter has become final in the sense that the order of eviction has been upheld by the highest Court in which it was sought to be challenged. It would not be open to further challenge, which necessarily can be in the execution stage. This conclusion inevitably follows from the well settled principle that a Court executing the decree cannot go behind the decree for it is binding and conclusive between the parties to the suit. Therefore, the Executing Court is required to execute the decree as it finds; save in exceptional cases where the decree on the face of it may be found to be without jurisdiction. To put it differently, the Executing Court cannot en-quire as to why the decree was passed but for the purpose of finding out whether the-decree is a valid one or a nullity it can go into the question as to whether the Court which passed the decree was competent to do so.
10. In Abdul Aziz and Ors. v. District Judge, Rampur and Ors. , High Court has observed as under : A
4. Relying upon the doctrine of lis pen-dens the Courts below have held that the-petitioners were as much bound by the decree and judgment dated 16th August, 1973 as their transferor Abdul Habib, the judgment debtor. The view taken by the Courts below is sound. Lis comes into existence from the point of the institution of the suit and continues to survive till the satisfaction-of the decree.
11. In Basudeo and Anr. v. The IVth Addl. District Judge, Jhansi and Ors. 1997 (30) ALR H. C. 66 : AIR 1997 All 288, High Court of Allahabad has held as under:
10. The power of the executing Court travels only to the extent of interpreting the decree or to identity the property. Even for the purpose of identifying the property or interpreting the decree it cannot take additional evidence. It was so held in the case of Lalmani v. Shiv Shanker and Bisweshwar Bhartia v. Udia Sthree (1994) Civil Law Journal 297 (Ori) when a new right is to avoid the decree passed, is in effect an adjudication leading to go behind the decree. In the case of Sarwan Lal v. Kanti Prasad AIR 1986 All 1 it was held that the objection of executability of decree which boils down to challenging the maintainability of suit cannot be taken before the executing Court. A mixed question of law and fact cannot be raised for the first time in execution case, Bhawarao v. Savitribai AIR 1991 Bombay 55 at P.59. Objection reading (sic) to show that the decree is erroneous cannot be raised under Section 47, C. P. C. Mahfuj Hussain v. Kiran Bano (1993) 2 Civil Law Journal 456 (M. P.). In V.D. Modi v. R. Rahman the Apex Court held that the general rule is that an Executing Court cannot go behind the decree. It must take the decree as it is and must proceed to execute it. It cannot entertain an objection that the decree is incorrect in law or facts….
12. A question which could have been raised as a defence in the suit cannot be -raised after the decree is passed.
12. Apart from that Section 111(d) of the Transfer of Property Act, 1882 reads as under:
111. Determination of lease. – A lease of immovable property, determines-
**** ****
(d) in case the interest of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
13. As will appear from Clause (d) of Section 111 of the Transfer of Property Act itself that the merger takes place only when the interest of the lessee and the lessor in the whole of the property become vested in one person. Admittedly from the facts of the present case, l/3rd share, which has come to the share of Sri Ram Singh having been purchased cannot attract Section 111(d) of the Transfer of Property Act, 1882.
14. The Apex Court has also held in T. Lakshmipathi and Ors. v. P. Nithyananda Reddy and Ors. relying upon the judgment of Jahuri Sah v. Dwarika Prasad Jhunjhunwala that the rule of estoppel continues to operate so long the tenancy continues and unless the tenant has surrendered the possession to the landlord the estoppel shall cease to operate only on the tenant openly restoring the possession to the landlord. The observations are quoted below: (para 24 of AIR 2003)
25. In the facts and circumstances of the case, no defence or shelter is available to the appellants behind the plea that they have acquired interest of some of the co-owners. The law as to co-owners is well settled. Where any property is held by several co-owners, each co-owner has interest in every inch of the common property, but his interest is qualified and limited by similar interest of the other co-owners. One co-owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use, and if he does so he may be restrained by an injunction. A co-owners may, by an arrangement, express or implied, with his other co-owners, possess and enjoy any property exclusively. Such a co-owner can also protect his possession against the other co-owners and if he is dispossessed by the latter, he can recover exclusive possession.
15. Further in India Umbrella Manufacturing Co. and Ors. v. Bhagabandei Agarwalla (Dead) by LRs. Smt. Savitri Agarwalla and Ors. , the Apex Court has observed as under: (para 7)
The applicability of doctrine of merger within the meaning of Clause (d) of Section 111 of the Transfer of Property Act, 1882 is not attracted. In order to bring the tenancy. to an end the merger should be complete; i.e. the interest of the landlord in its entirety, must come to vest and merge into the interest of tenant in its entirety. When part of the interest of the landlord or the interest of one out of many co-landlords cum co-owners comes to vest in the tenant, there is no merger and the tenancy is not extinguished. In our opinion, the First Appellate Court was not justified in placing a rider on the right of the decree-holders to execute the decree unless the property was partitioned between the co-owners.
Further admittedly Ram Singh has given the undertaking before the Court to vacate the premises within four months, he approached to the Apex Court. The SLP was dismissed. The order passed by the trial Court and this Court has merged in the SLP, which was dismissed. The decree was passed in the year, 1991 and the same was confirmed in the year, 2004 by the High Court and the judgment debtor is enjoying the premises without the payment of rent or damages/mesne profits. Further the judgment debtor cannot be allowed to approbate and reprobate in view of the decision of the Apex Court in R. N. Gosain v. Yashpal Dhir . In the aforesaid case, the Apex Court has observed as under: (para 10)
Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing other advantage.
16. In view of the peculiar circumstances case that the defendant-judgment is delaying the execution of the decree and the suit was decreed in the year, 1991, the judgment debtor is directed to pay rent /damages as was being paid to the appellant earlier till the date of delivery of possession,- In case any amount has already been paid the same shall be given due
17. Both the orders dated 11-5-2005 passed in execution case No. 21 of 2004 as well as in execution case No. 2 of 1991 are quashed and both the revisions are allowed.