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Judgment
R.K. Mahajan, J.—This revision petition is directed against the order dated 7.10.1982 passed Ist Civil Judge, Kanpur in Misc. Case No. 107 of 1978 against the judgment and order dated 4.9.1976 passed by Ist Civil Judge, Kanpur in Original Suit No. 300 of 1974.
In this revision, the order has been assailed by the revisionist on the grounds that the trial court committed grave error while allowing the objects of the Defendant/opposite-parties that the decree in Original Suit No. 300 of 1974 is not enforceable against the Defendant No. 8. Therefore, the contention of the learned Counsel for the revisionist is that the executing court cannot go behind the decree passed by the trial court.
I would like to quote the operative order of the judgment of the trial court dated 4.9.1976 which runs as under:
The suit is decreed with costs and 6% per annum pendente lite and future interest on Rs. 16.000/- against Defendants 1 to 7. The decree shall be enforceable against Defendants Nos. 3 to 7 only to the extent of their shares in the joint family property. The decree is ex parte against the Defendant Nos. 1 to 3 and 5 to 8.
The learned Judge while deciding issue No. 1 2, held as regards the joinder of Defendant No. 8, that it is a trust created by Defendant No. 2 and his wife to justify the apprehension of the Plaintiff that the trust is take and the property continues to belong to the joint family. There is, therefore, no misjoinder of Defendant No. 8. The issue is answered in negative.
The learned Counsel for the revisionist vehemently argued that the execution court should not have gone behind the decree while interpreting that it is unenforceable against Defendant No. 8 while allowing the objection u/s 47 of the Code of Civil Procedure.
I have heard learned Counsel for the revisionist. No one appears for the opposite parties. 1 have perused the record.
The court is well within power u/s 47 of the CPC to find the true intention of the decree for the purpose of execution, discharge and satisfaction. It is admitted preposition of law that the executing court cannot go behind the decree or re-write it but it does not bar the executing court to take step to give effect to the decree In the case of Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, , it has been held as under:
It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree, the court often has to ascertain the circumstances under which these words came to be used. That is the plain duty of the executing Court and if that Court fails to discharge that duty, it would be deemed to have failed to exercise the jurisdiction vested in it.
The learned Counsel for the revisionist has also relied upon a decision in the case of Topanmal Chhotamal Vs. Kundomal Gangaram and Others, , wherein it has been held that the executing Court cannot go behind the decree and must take it as it stands. The learned Counsel has emphasised the wording that the executing Court cannot go behind the intention of the decree. The Supreme Court never mentioned this. Moreover, the executing Court is not going behind the decree and on a bare perusal of the order, the executing Court has held is that it is not enforceable against the Defendant No. 8. I, therefore, find no substance in the submission made by the learned Counsel for the revisionist.
In the result, the revision fails and is dismissed The cost is assessed at Rs. 100/-.