Gurdev Singh v. Narain Singh, (SC) BS134867
SUPREME COURT OF INDIA

Before:- S.B. Sinha and H.S. Bedi, JJ.

Civil Appeal No. 5237 of 2007 (@ SLP (C) No. 5476/2006). D/d. 12.11.2007.

Gurdev Singh - Appellant

Versus

Narain Singh - Respondent

For the Appellant :- Mr. Sarup Singh, Sr. Advocate with Mr. Yash Pal Dhingra and Mr. Kuldip Singh, Advocates.

For the Respondent :- Mr. G.S. Punia, Mr. Davender Mohan Verma, and Ms. Minakshi Vij, Advocates.

Civil Procedure Code, Section 47 - Civil Procedure Code, Order 21 Rule 10 - Execution of decree - Executing Court cannot go behind the decree.

[Para 9]

ORDER

Leave granted.

2. Respondent herein filed a suit for permanent injunction against the appellant. The suit was marked as Civil Suit No. 226 of 1987. A decree for permanent injunction was passed by the learned trial Judge on 19.1.1989, the operative portion whereof reads as under :

3. The decree holder filed an application for execution of the decree praying, inter alia, for removal of the tree from the lands in question. A Commissioner was appointed. He submitted a report stating as under :

4. The learned Commissioner in his report did not state that the Bohar tree was planted after passing of the decree.

5. The executing Court relying on or the basis of the said report as also some decisions of this Court while holding that the executing Court has the requisite jurisdiction to construe a decree, opined as under :

6. By reason of the impugned judgment the High Court has affirmed the said order.

7. Mr. Swarup Singh, learned senior counsel appearing on behalf of the appellant would submit that the executing Court as also the High Court committed a manifest error in interpreting the decree.

8. We agree with the said contention. A bare perusal of the decree in question would clearly demonstrate that the appellant herein was restrained by a permanent injunction from planting any tree on khasra Nos. 17/2 on the one side and khasra No. 218/1 and 17/1 on the other side. The decree did not speak of removal of any tree which had already been planted. The executing Court, as noticed hereinbefore, while interpreting the said decree proceeded completely on a wrong premise to hold that there should not be any tree within two karams on either side of the common boundary of the parties. Such an interpretation evidently is not in consonance with the tenor of the decree. A jurisdictional error,thus, has been committed by the High Court.

9. It is well stated that executing Court cannot go behind the decree. As the decree did not clothe the decree holder to pray for execution of the decree by way of removal of the trees, the same could not have been directed by the learned executing Court in the name of construing the spirit of the decree under execution.

10. We, therefore, set aside the impugned judgment and remit the matter to the executing Court for determination of the question as to whether the Bohar tree in question was in existence prior to passing of the decree or not. The executing Court thereafter may proceed with the matter in accordance with law.

The appeal is allowed. No costs.

Appeal allowed.