- (1.) THE suit for eviction filed by the opposite party against the petitioner herein for recovery of khas possession of the suit premises from the petitioner on the ground of reasonable requirement, was dismissed on contest by the learned Trial Court. However, the said decree was set aside in appeal and the learned First Appellate Court passed an eviction decree against the opposite party in the said appeal. THE said decree passed by the learned First Appellate Court was affirmed in Second Appeal by this Honble Court.
(2.) SUBSEQUENTLY, when the said decree was put into execution for recovering khas possession from the defendant-debtor/petitioner, the judgment-debtor/petitioner filed a comprehensive application under Section 47 of the Code of Civil Procedure read with Order 21 Rules 97, 99, 100 and 101 of the Code of Civil Procedure contending inter alia that the said decree cannot be executed as the accommodation which is now available to the judgment debtor is sufficient to satisfy his present requirement. To substantiate the aforesaid plea of the judgment-debtor, the judgment-debtor/petitioner filed an application before the Learned Executing Court seeking Courts permission to crossexamine the decree-holder on the aforesaid point. The Learned Executing Court rejected the petitioners such prayer by the impugned order dated 12th July, 2010. The judgment-debtor/petitioner is aggrieved by the said order. Hence he has come before this Court with this application under Article 227 of the Constitution of India. Heard the learned Counsel, appearing for the parties. Considered the materials on record including the order impugned.
(3.) LET me now consider as to how far the Learned Executing Court was justified in passing the impugned order in the facts of the instant case. It is settled law that the learned Executing court cannot rewrite the judgment. It is equally settled that the Executing Court cannot go behind the decree. The duty of the Executing Court is to execute the decree as it is. As such there is hardly any scope for reopening the decree passed by the Learned First Appellate Court in appeal which was affirmed in Second Appeal by this Honble Court, in the execution proceeding particularly when the enforceability of the said decree has not been challenged on the ground of its nullity.;