TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner/judgment debtor is aggrieved against the order dated 21. 2. 2007 by which the executing court dismissed the petitioners' objection petition filed under Section 47 CPC dated 5. 12. 2006. It will be appropriate to narrate few facts why the present objection petition was filed by the petitioners. A suit was filed by the plaintiff/decree holder which was compromised in Lok Adalat in pursuance of compromise decree dated 19. 12. 1992 was granted by the trial court. As per the decree, the plaintiff and defendant were required to construct their own separate walls leaving the space between the walls as open. When the defendants started raising construction in common lane, then execution petition was filed by decree holder in the year 1994 and in that execution proceedings, even application was filed for obtaining interim order of injunction against the judgment debtor so that he may not proceed with the construction of wall. The executing court on 15. 5. 1994 passed the interim order and directed both the parties to maintain status quo and also appointed Commissioner. The Commissioner submitted his report before the executing court. The judgment debtor also filed objection petition against execution of decree. Thereafter, on 2. 3. 1995, the executing court passed a detailed order and rejected the objection raised by the judgment debtor and directed the judgment debtor to remove the encroachment made by him on the common lane within a period of 15 days. The executing court also held that in case, the judgment debtor failed to remove the encroachment within 15 days, then the decree holder will be free to get encroachment removed through the court. However, the executing court deferred the order on the application submitted by the decree holder for punishing the judgment debtor because of judgment debtor's willful disobedience of the court's order dated 2. 3. 1995. This detailed order of the executing court was challenged by filing revision petition before this Court which was registered as SB Civil Revision Petition No. 54/2004 which was dismissed by this Court by order dated 24. 7. 2006. Therefore, the order dated 3. 2. 2004 attained finality. It will be worthwhile to mention here that before all above, the executing court decided to hold enquiry to interpret the decree sought to be executed by the decree holder and the order of executing court was challenged by filing SB Civil Revision Petition No. 873/1998 before this Court by the decree holder which was allowed by this Court vide order dated 7. 5. 2003 after holding that the executing court had no jurisdiction to go beyond the decree and no finding could have been recorded after taking evidence so as to find out what was the intention of the parties for entering into the compromise. That effort of the executing court was beyond the jurisdiction of the executing court. Now the judgment debtor has submitted an application under Section 47 CPC before the executing court.
(3.) ACCORDING to learned counsel for the petitioners, the said objection petition was dismissed by the executing court without holding any enquiry despite the fact that in fact, the proceedings under Section 47 CPC is akin to the suit proceedings and as per the judgment of Punjab and Haryana High Court delivered in the case of M/s. Woolways, Shop-cum-Office, Chandigarh and others vs. Central Bank of India, Chandigarh and others reported in AIR 1990 Punjab & Haryana 92, the executing court should hold enquiry before deciding the objections under Section 47 CPC. Learned counsel for the petitioners vehemently submitted that in fact, the decree holder is seeking to execute the decree beyond its scope and the Hon'ble Supreme Court in the case of Jai Narain Ram Lundia vs. Kedar Nath Khetan and others reported in AIR 1956 SC 359 clearly held that the executing court can execute the decree and not beyond the decree. For same purpose with different context, another judgment of the Hon'ble Supreme Court delivered in the case of Rameshwar Das Gupta vs. State of U. P. and another reported in AIR 1997 SC 410 was relied upon by learned counsel for the petitioners. So far as query of this Court regarding how the petitioners filed second objection petition when their earlier objection petition was dismissed by the executing court, learned counsel for the petitioners pointed out that in earlier objection petition, points which have been raised in the present objection petition were not raised, therefore, the objections which have been raised by the petitioners in this objection petition are neither decided by any court of law nor any enquiry was held so as to record any finding. It is also submitted that even the executing court without looking into the grounds raised by the petitioners, rejected the petitioners' present objection petition merely because of the reason that the executing court rejected the petitioners' objections by order dated 3. 2. 2004 and that was upheld by this Court. ;