Case Note & Summary
The petitioner, Abdul Shahid Patel, purchased immovable property by registered sale deed dated 08.11.1995. The respondent, Smt. Rameshwaridevi Sharma, filed a suit for declaration and permanent injunction claiming tenancy rights. The suit was dismissed, and the petitioner filed a cross-suit for possession, which was decreed. The respondent's appeal against the decree was dismissed, and the decree attained finality. In execution proceedings, the petitioner filed an application at Exh.51 for issuance of possession warrant with police aid. The execution court rejected the application on the ground that the decree was obtained by fraud and that the respondent had a right to continue as a tenant. The High Court held that the execution court cannot go behind the decree and must execute it as it stands. The objections raised by the respondent were not maintainable under Order 21 Rule 97 CPC as they did not relate to execution, but to the merits of the decree. The High Court allowed the writ petition, set aside the impugned order, and directed the execution court to issue possession warrant with police aid within four weeks.
Headnote
A) Civil Procedure - Execution of Decree - Order 21 Rule 97, Section 47 Code of Civil Procedure, 1908 - Possession Warrant - The execution court rejected the petitioner's application for possession warrant with police aid on the ground that the decree was obtained by fraud and that the respondent had a right to continue as a tenant. The High Court held that the execution court cannot go behind the decree and must execute it as it stands, and that the objections raised by the respondent were not maintainable under Order 21 Rule 97 CPC as they did not relate to execution, but to the merits of the decree. (Paras 2-10) B) Civil Procedure - Execution of Decree - Order 21 Rule 97, Section 47 Code of Civil Procedure, 1908 - Maintainability of Application - The High Court held that the application for possession warrant with police aid was maintainable and that the execution court erred in rejecting it. The court directed the execution court to issue possession warrant with police aid within four weeks. (Paras 11-12)
Issue of Consideration
Whether the execution court was justified in rejecting the application for issuance of possession warrant with police aid on the ground that the decree was obtained by fraud and that the respondent had a right to continue as a tenant, despite the decree having attained finality.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 18.12.2018 passed by the Additional Judge, Small Causes Court, Nagpur, and directed the execution court to issue possession warrant with police aid within four weeks.
Law Points
- Execution court cannot go behind the decree
- Order 21 Rule 97 CPC
- Section 47 CPC
- maintainability of execution application
- possession warrant
- police aid
- tenant's rights after decree
