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Judgment
The present petition has been filed by the petitioner under Section 115 of the Code of Civil Procedure challenging the legality, validity and propriety of the impugned order dated 10.10.2025 passed by the Civil Judge, Senior Division, Tehsil Bina, District Sagar in Ex-A 02/2018.
It is submitted by the learned counsel for the petitioner that an application under Section 151 though in sum and substance under Section 47 of the Code of Civil Procedure, has been filed by the petitioner to dismiss the execution proceedings on the ground that the decree is not executable. The decree was granted in respect of the suit land bearing Survey No.79/1 admeasuring area 0.8 hectare, however, the revenue record as well as the land situated at this survey number is having area 0.08 hectare, therefore, as the area of the land i.e. subject mater of the suit is not matching, unless, it is corrected in an appropriate proceeding, the same is not executable and therefore, the execution proceeding deserves to be dismissed. It is also submitted that the said change of area is due to suppression of fact.
Per contra, counsel for the respondent No.1 has submitted that it is not the case where the decree has been passed in respect of a wrong survey number, however, it is a case where an application is filed on the ground that as per revenue record, the area of the subject matter is lesser than the area which has been agreed to be sold through a registered agreement. It is submitted that it is not disputed that the agreement to sale was executed for sale of 0.80 hectare of land. The decree was also passed in respect of 0.80 hectare of land, however, the revenue record contends that it is having an area of 0.08 hectare, therefore, the decree to the extent of the area, which is mentioned in the revenue record, is executable.
Heard learned counsel for the parties and perused the record.
From perusal of the record, it is admitted fact between the parties that a suit for specific performance in respect of Survey No. 79/1 admeasuring area 0.80 hectare was filed. The learned Civil Court has decreed the suit for 0.80 hectare. The agreement to sale also contains the same area, however, as per the Khasra entries and the report submitted before the Executing Court, it was found that the area in question is 0.08 hectare, which is lesser than the actual area mentioned in the agreement to sale and the revenue record.
The counsel for the petitioner has relied upon a judgment passed by the Hon'ble Apex Court in the case of Maurice W. Innis vs. Lily Kazrooni @ Lily Arif Shaikh-2026 SCC OnLine SC 554 to state that in a similar set of facts the Hon'ble Apex Court has held that as the area is not matching with the decree, the Executing Court is not empowered and having jurisdiction to vary the decree, which reads as under:-
"23.In order to address the controversy arising in this appeal, it would be profitable to first place Section 47 of Code of Civil Procedure which provides for the questions to be determined by the Executing Court. The aforesaid Section 47 CPC is reproduced hereinbelow:—
“47. Questions to be determined by the Court executing decree:—
(1)All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2)* * * * (omitted)
(3)Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.”
24.A plain reading of the aforesaid provision makes it clear that the Executing Court is empowered to decide questions relating to execution, discharge or satisfaction of the decree and has no jurisdiction to go beyond the decree sought to be executed. In other words, it has to execute the decree as it is without changing the same. It is settled in law that the jurisdiction of Executing Court is limited to give effect to the decree as passed and not to assume the role of a trial court so as to substitute its own view in place of that expressed under the decree. 3
25.In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman , it has been held as under:—
“6.A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.”
26.The aforesaid view has been reiterated and fortified by the Supreme Court in Sunder Dass v. Ram Prakash. The relevant portion is reproduced hereinbelow:—
“3.Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be decree at all. Vide Kiran Singh v. Chaman Paswan [(1954) 1 SCC 710 : AIR 1954 SC 340 and Seth Hiralal Patni v. Sri Kali Nath [1961 SCC OnLine SC 42 : AIR 1962 SC 199]. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent.”
27.In view of the above case laws, the Executing Court has to strictly conform to the decree under execution and if the decree provides for reciprocal obligations, it must ensure compliance of those conditions by both the parties in pith and substance, unless the decree is a nullity which is not the case herein.
29.The above decision in clear terms states that the Executing Court has no jurisdiction to vary the terms of the decree. It is only where the dispute as to the identity of the land which has to be given as part of the obligation to the other side arises, the court can decide the same."
When the facts of the present case have been tested on the anvil of the law laid down by the Hon'ble Apex Court in the case of Maurice W. Innis (supra), this Court finds that the underlying principle, which is to be borne in mind by the Executing Court, is that the Executing Court has to execute a decree without changing the same. If the decree contains the area 0.80 hectare then the Executing Court cannot change it to 0.08 hectare. It is not the case of the petitioner that the decree of specific performance of land bearing Survey No. 79/1 having area 0.80 hectare has not been granted, however, it is the case that as the area mentioned in the revenue record contains lesser area than decreed, therefore, unless the same is rectified in the decree, the same is not executable, however, the fact remains that the the agreement to sale has been found to be proved. There is no finding in regard to area while adjudicating the suit. The petitioner/defendant remained ex-parte before the court. Therefore, the respondent/plaintiff was required to be a bit cautious about presenting the case in respect of the identity and measurement of the property. The identity of the property is not disputed, however, the area of the property is disputed. Therefore, had the revenue documents been filed before the Civil Court, the respondent/plaintiff would not have been in a position to prove, that the area of the said survey number is 0.80 hectare. It is not the case of the parties that the area has been changed subsequently after passing of the decree, therefore, the area, which was mentioned in the agreement as well as in the plaint was required to be proved before the court below. As the court below granting decree of specific performance has found the agreement proved, but, in absence of any title of the land of which decree is being granted, such decree is a futile exercise. The Executing Court, therefore, cannot at the stage of execution, change the area of the land. The better course for the respondent/plaintiff is to file a necessary application for modification before the Civil Court for actual area of the land.
Therefore, in the view of the law laid down by the Hon'ble Apex Court in the case of Maurice W. Innis (supra) and on the factual backdrop of the present case, in the considered opinion of this Court, the impugned order suffers from illegality and jurisdictional error, which requires interference under Section 115 of CPC.
Consequently, the impugned order dated 10.10.2025 passed in EX-A No. 02/2018 is set aside with liberty to the respondent to file appropriate application for correction of the area.
The revision petition is allowed to the extent mentioned hereinabove. However, there shall be no order as to cost.