- (1.) INSTANT writ petition has been filed by the defendant No.2-petitioner assailing the order dt.26/04/2012 passed by the executing court by which the executing court has rejected the application filed by the defendant No.2-petitioner.
(2.) MR .Jai Prakash Gupta, learned counsel for the defendant No.2-petitioner submits that the executing court has committed an error in rejecting the application vide the order impugned without considering the contents of the application wherein it was specifically submitted that the defendant No.2-petitioner was wrongfully impleaded as judgment debtor in the execution application while, as a matter of fact, he was the decree holder. He further submitted that the plaintiff-respondent was the tenant of defendant No.2-petitioner (temple) and only the shop situated at ground floor without roof was given on rent to him and the roof of the shop, on which the defendant No.1-respondent (Prakash Chand) was having possession and raised construction, also belonged to the defendant No.2-petitioner (temple), the possession of which alongwith construction had been handed over to the defendant No.2-petitioner (temple) and now the defendant No.2-petitioner (temple) is in possession of the roof of the shop along with the construction of the first floor and the defendant No.2-petitioner (temple) does not want to demolish/remove the said construction made by defendant No.1-respondent (Prakash Chand) on the roof of the shop in question because the same has been handed over by him to the defendant No.2-petitioner (temple) and a Tehrir to this effect has also been executed between the defendant No.2-petitioner (temple) and defendant No.1-respondent (Prakash Chand). Counsel submits that in view of the above facts and circumstances, the plaintiff-respondent No.1 was not having any right on the roof of the shop in question as only the shop in question was let out to him by the defendant No.2-petitioner (temple) and, as such, when the construction raised by the defendant no.2-respondent (Prakash Chand) on the roof of the shop in question, has been handed over to the defendant No.2-petitioner (temple), no purpose was going to be served in directing for demolishing the said construction. Counsel submits that these important aspects of the matter have been completely ignored by the learned executing court while passing the order impugned and, as such, the order impugned deserves to be set aside. Mr. JP Goyal, Senior Advocate assisted by Mr. Aditya Sharma, learned counsel for the plaintiffs-respondents, on the other hand, while opposing the submissions made by learned counsel for the defendant No.2-petitioner submitted that the executing court has not committed any error in passing the impugned order. He submitted that the executing court cannot travel beyond the decree. He further submitted that the decree attained finality and once the decree attained finality, the executing court has to execute it in letter and spirit. He further submitted that the the matter came up before this Court and this Court in SB Civil Writ Petition No.2727/2008, titled as Prakash Chand Vs. Shantanu Prasad and ors. Vide order dt. 15/04/2011 dismissed the writ petition filed by Prakash Chand, who is defendant No.1-respondent herein. He submitted that if the defendant No.2-petitioner had any grievance, then the remedy lied elsewhere and not in these execution proceedings. He further submitted that the defendant No.2-petitioner was a party all throughout before the trial court but it did not choose to contest or take any appropriate action and, therefore, in the present proceedings, no benefit can be derived by the defendant No.2-petitioner.
(3.) I have considered the arguments advanced by counsel for the parties and also perused the material on record including the order impugned and in my view the executing court has correctly come to the conclusion that the execution proceedings have to proceed on the basis of decree already passed earlier and which has attained finality and it is a settled law that the executing court cannot travel beyond the decree and once the decree having become final, the directions made therein have to be followed in letter and spirit. It is also appropriate to quote the order of this Court in SB Civil Writ Petition No.2727/2008 dt. 15/04/2011 as under:- "There was decree for removal of encroachment from ground floor and it is not disputed at bar that the construction was raised at the same place on first floor which was illegally occupied at ground floor. When construction on ground floor is illegal encroachment obviously, the construction raised over it on first floor is also required to be removed. It cannot exist if ground floor is removed. Consequently, there is no illegality in the impugned order. For effective execution of the decree alongwith the encroachment on ground floor, the construction over it on the first floor is required to be removed. " ;