PRASENJIT MANDAL,J. - (1.) CHALLENGE is to the Order No. 157 dated July 8, 2009 passed by the learned Judge, City Civil Court, 2 nd Bench, Calcutta in Misc. Case No.1787 of 1993 arising out of the Title Execution Case No.90 of 1986. The opposite party got a decree relating to agreement for lease on compromise in Title Suit No.150 of 1976 against the petitioner and the said decree was put into execution being Title Execution Case No.90 of 1986. In that Execution proceeding, the judgment-debtor filed an application under Section 47 of the CPC and the said application was converted into the Misc. Case No.1787 of 1993.
(2.) BY the impugned order, the learned Executing Court allowed the said Misc. Case in part on contests and the learned Executing Court has held that the decree-holder/opposite party herein is entitled to get an accommodation of 2000 sq.ft out of 6000 sq.ft and that it could put the decree into execution accordingly. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Having heard the learned Advocates of both the sides and on perusal of the materials-on-record, it appears that the Title Suit No.150 of 1976 was decreed on compromise in terms of the Solenama on June 9, 1976. As per Solenama, the petitioner is bound to deliver 6000 sq.ft of space to the opposite party upon certain terms and conditions, such as, consideration money to be paid at the rate of Rs.100.00 per sq.ft, etc. The bank was also required to pay a sum of Rs.29,010.00 by way of rent. Admittedly, for the purpose of construction of the new building in place of the old building, the opposite party/bank advanced a sum of Rs.3,50,000.00 to finish the construction to the petitioner. Admittedly, out of the 6000 sq.ft space, the bank got possession of 4000 sq.ft. Under the circumstances, the petitioner has contended that the decree-holder cannot put the decree into execution for the entire 6000 sq.ft. It has also contended since the bank made delay in making the payment, the rest space of 2000 sq.ft had been let out to a third party and at present, the decree-holder cannot get the possession of that space. While disposing of the said Misc. Case, the learned Executing Court has held that the petitioner has failed to make it clear before the Court when it completed the construction of the entire 6000 sq.ft of space on the first floor and when it asked the bank to take delivery of possession of that space, after taking payment of the construction. It also failed to establish that the petitioner had let out the rest 2000 sq. ft to the third party and any way, the matter for execution of the case is being dragged since 1986 till date.
(3.) THE petitioner has also contended that the opposite party has failed to pay the consideration in respect of the area over which the bank already got possession and as such, a sum of Rs.12,17,173.00 by way of consideration and interest became due and payable as on March 31, 2003. In any way, the Executing Court cannot go behind the decree. In the instant case, the Execution Case has been filed for recovery of possession and if the judgment-debtor has any claim in respect of money or other claims, such as, interest, etc, that is a separate issue. The judgment-debtor may show that the decreeholder is still to discharge his obligations. So far as the application under Section 47 of the CPC is concerned, I find that execution of the decree is resisted on the ground that the Execution Case is not maintainable on the ground as recorded above as per contention of the petitioner. Since, the Executing Court cannot go behind the decree, so far as the findings of the learned Executing Court to the effect that the decree-holder is still entitled to get an accommodation of 2,000 sq. ft of space out of 6000 sq.ft space and it could put the decree into execution are concerned, in my view, these findings cannot be wriggled out.;