ORDER
R.P. Sethi, J.
1. Suit for possession filed by Tej Ram, Predecessor-in-interest of the present petitioners, was decreed by the Court of Munsiff, Haranagaron 14-5-1983. The execution application filed in the case was dismissed by the executing Court holding that as the decree of possession pertaining to one storey shop which, in fact, did not exist, same could not be executed. The Nazir, who went to execute the decree had reported that the shop as described in the decree did not exist on the spot and the site was in the shape of a Khola only, walls being in delapidated condition. After holding, “This is a moot question of law that the executing Court had the power to examine the question as to the identity of the property i.e., the subject of the decree which it is executing” the executing Court held, “It cannot make out a new case for the decree-holder at his whims and pleasure by substituting a new property in place of the one described in the decree” and ultimately dismissed the execution application on 30-7-1986. The appeal preferred was also dismissed holding that the Order passed by the executing Court was not an appealable order.
2. I have heard learned counsel for the parties and perused the record.
3. Section 47, C.P.C. provides that all questions arising between the parties to the suit in which the decree was passed or their representative 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. The provision has been made in the section with the object to enable the parties to obtain adjudication on questions relating to execution without unnecessary expense or delay by filing a fresh suit. Section 47, therefore, embraces all matters connected with the execution of an existing decree, between the parties or their representatives and covers all questions specified therein. The provisions of Section 47 are pre-emptory and the bar of suit under the Section applies not only where the question is raised by the plaintiff in the suit but also to questions as defence to the suit. The words “shall be determined” used in the section are indicative of the fact that the Court has to adjudicate upon the questions relating to the execution, discharge and satisfaction of the decree after affording the parties an opportunity to prove their rival claims. It was held in AIR 1940 Patna 420, that the word ‘determine” gives the Court executing the decree jurisdiction to dispose of finally such question by granting appropriate relief. The Supreme Court in Jugal Kishore Saraf v. M/s. Rao Cotton Co. Ltd., AIR 1955 SC 376, held (para 54 at p. 399 of AIR) :–
“There could be no objection to decide questions involving investigation of complicated facts or difficult questions of law in execution proceedings, as Section 47, Civil P.C. authorises the Court executing the decree to decide all questions arising therein and relating to execution of the decree and Sub-Section (2) further authorises the execution Court to treat a proceeding under the Section as a suit thus obviating the necessity of filing a separate suit for the determination of the same…..”
4. Identity of the property, if disputed, is, definitely a question of relating to execution, discharge and satisfaction of the decree which is covered by the provisions of Section 47, C. P.C. It was held in M. Pillai v. P.K.V. Naidu, AIR 1968 Mad 433, that it is for the executing Court to examine the question as to the identity of the property that is the subject matter of the decree which it is executing. It was further held that 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 have to be determined by the executing Court and not by a separate suit. In Jai Narayan v. Kedar Nath, AIR 1956 SC 359, the Supreme Court held that the executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge or satisfaction of the decree and so under Section 47, C.P.C. it can only be determined by the Court executing the decree. In Rahim Bux v. Mohd. Shaffi, AIR 1971 All 16, where after the demolition of the building the contract of tenancy was allegedly frustrated and it became impossible of performance under Section 56 of the Contract Act, it was held (at p. 17 of AIR):
“So this doctrine of frustration cannot apply to a lease of the present nature. Moreover, in this case even if this doctrine had been applicable, the facts do not show that the contract of lease had become impossible of performance. The landlord, who demolished the premises in compliance with a notice issued by the Municipal Board under Section 263 (1) of the Municipalities Act, could rebuild the premises in the same form in which they existed before, and the rights of the lessor and lessee would then be available with respect to the new premises. So this second point raised on behalf of the appellant has also no force.
Lastly, it was contended that due to the reconstruction of the building during the pendency of the case it has become difficult to identify the protion of it on which the plaintiffs shop existed and so the decree is not capable of execution. In my opinion this point does not arise at this stage. As mentioned above, the landlords were permitted to rebuild the building at their own risk which implied that the rights of the plaintiff would not be prejudiced thereby. It would, therefore, be for the execution Court to decide, after taking such evidence as may be necessary, as to which portion of the present premises consisted of the shop which was in the tenancy or the plaintiff and to restore possession to him only in respect of that portion.”
In Dr. Madhukar Trimbak Gore v. Vasant Ramakrishna Kolhatkar, AIR 1983 Bom 277, an objection was raised that the decree could not be executed for the reason that the house to which it related, was not in existence. The Bombay High Court, after examining the case law on the point, held (at p. 285 of AIR):
“When in execution a question arises as to the identity of the property of which possession has to be delivered to the decree-holder, obviously such a question would relate to the execution of the decree and it would be for the executing Court to decide it as required by Sub-Section (1) of Section 47 of the Code, since it would not be possible for the decree-holder to get it determined by a separate suit. The proposition is so obvious so as not to need any authority. But on facts similar to the ones in the present case the Allahabad High Court in Rahim Bux v. Mohammad Shafi, AIR 1971 All 16, has held that in such cases it is for the executing Court to decide the question after taking such evidence as may be necessary as to what is the property of which possession has to be delivered. In this case also the executing Court would do well to hold a proper inquiry and determine the question with regard to the identity of the room which has to be delivered, to the applicant,”
Testing the merits of the present case on the touchstone of the law laid down as discussed hereinabove it has to be seen as to whether the executing Court discharged its duties to determine the question regarding the identity of the property arising during the execution, discharge and satisfaction of the decree. The facts of the case reveal that no enquiry was held by the executing Court who was persuaded to reject the execution application merely on the ground that the shop regarding: which the decree had been passed, stood demolished and was in the shape of a khola at the time when the execution of the decree was sought. It cannot be conceived that the shop could exist without surface or the land underneath. If the decree of possession is allowed to be frustrated in this manner, the unscrupulous litigants would defy the authority of law and change the nature of the subject matter of the dispute at the time of execution of the decree making the execution of the decrees impossible. The decree-holders were well within their right to establish that the land or the Khola existing on spot was, in fact, the property in dispute between the parties, which, with the lapse of time or on account of the acts of omission and commission of the judgment-debtor, has been altered and in that event there was no scope for the executing Court to deliver possession of the property to the decree-holders. The executing Court has summarily rejected the prayer of the petitioners-decree-holders without determining the questions arising in execution, discharge and satisfaction of the decree obtained by them. The order impugned being contrary to law is liable to be set aside. In view of this, the order of the learned District Judge, who has not decided the case on merits, cannot sustain in the way of the decree-holders to obtain appropriate relief from the executing Court.
5. Under the circumstances this revision petition is accepted by setting aside the orders impugned with a direction to the executing Court to hold an enquiry and determine the identity of the property, the subject matter of dispute between the parties and pass appropriate orders in the light of the observations made hereinabove. Interim direction of the Court is vacated thereby disposing of C.M.P. No. 304/88.
6. Record of the executing Court shall be returned forthwith where learned counsel for the parties have been directed to appear or cause the appearance of their clients on 29th May, 1992.
Viral Modi
what is the citation for this ruling ?