D.K.Seth, J. - (1.) Original Suit No. 625 of 1975 was instituted before the Munsif, Muzaffarnagar for specific performance of a contract by the plaintiff-decree holder against the defendant-petitioner. The suit was decreed on 30th September. 1980. After the decree became final, an execution was levied. Execution Case No. 32 of 1984 was registered thereupon. In the said execution process, a draft deed was prepared and submitted to the Court for approval. The judgment debtor objected to one of the clauses being incorporated in the draft deed. The objection was overruled by an order dated 24th March, 1998 passed by the learned Civil Judge (J.D.), Muzaffarnagar in said Execution Case No. 32 of 1984. Thereupon, the petitioner preferred an appeal being Misc. Appeal No. 58 of 1998. It was partly allowed by an order dated 21.4.1998 passed by the learned Additional District Judge, IInd Court, Muzaffarnagar. It is this order which has since been challenged in the present writ petition.
(2.) Km. Usha Kiran, learned counsel for the petitioner had argued that in the decree it was directed that the deed should be executed within a period of one month. The judgment debtor did not execute the deed within one month, and therefore after expiry of one month, the decree holder had lost his right to execute the decree. Levy of execution beyond the said period of one month, is therefore not maintainable. She also contends that the agreement enforceable under the decree did not contain the clause which has been sought to be stipulated in the deed Itself and therefore the executing court while approving the draft deed, had sought to modify the decree and thereby proposed to go behind the decree which is otherwise impermissible by the executing court.
(3.) Mr. P. N. Saxena, learned counsel appearing with Km. Usha Kiran while supporting her contention, submits in addition that unless the agreement contains a specific stipulation to the extent of an undertaking binding the judgment debtor, the same cannot be incorporated in the deed itself, which would amount to going behind the decree by the executing court. Inasmuch as the decree did not permit stipulation of any such undertaking which is not incorporated in the decree itself.;