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Judgment
Rakesh Kumar Jain, J.
This revision petition is against the order dated 3.3.2014, dismissing the application of the petitioner/decree holder whereby he had prayed that issues No. 1 and 2, framed by the executing court, are unnecessary issues and may be struck of. In short, the petitioners filed the suit for mandatory injunction and in appeal the following decree was passed:
"It is hereby ordered that I accept the appeal of the appellant/plaintiff with costs and judgment and decree of the lower Court declining the relief of mandatory injunction to the appellant/respondents No. 2 to 8 are hereby set aside and issue No. 2 is accordingly decided in favour of the appellant/plaintiff with the observation that appellant/respondents No. 2 to 8 will be entitled to total area of 47 Kanals 5 Marlas out of 63 Kanals and they are deficient in area to the extent of 8 Kanals and mandate is passed in favour of the appellant and respondents No. 2 to 8 and against respondent No. 1 to make the deficiency of that area to them."
Since the decree was not being followed by the judgment debtor, the petitioners filed an application under Order 21 Rule 32 of the CPC in which trial Court framed the following issues:
"(i) Whether JD No. 1 is in possession of 8 Kanals excessive area out of 63 Kanal land? OPDH.
(ii) Whether DH alongwith JDs No. 2 to 8 are entitled to get possession, if so, of what area? OPDH.
(iii) Whether execution application is not maintainable? OPJD.
(iv) Whether this Court has no jurisdiction to entertain and decide execution application? OPJD.
(v) Whether decree under execution is not executable? OPJD.
(vi) Whether judgment and decree in question has been obtained by DH by playing the fraud on the Court as alleged? OPJD.
(vii) Relief."
The petitioner then filed an application that issues No. 1 and 2 framed vide order dated 8.12.2012 are unnecessary issues and have wrongly been framed. This application has been dismissed by the impugned order dated 3.3.2014.
Learned counsel for the petitioners has argued that when the suit was filed, the following issues were framed by the trial court.
"(i) Whether plaintiff is co-sharer in possession of suit land? OPP.
(ii) Whether plaintiff is entitled to mandatory injunction prayed for? OPP.
(iii) Whether plaintiff is also entitled to permanent injunction prayed for? OPP.
(iv) Whether suit is bad for non joinder of necessary parties? OPD.
(v) Relief."
On the aforesaid issues, both the parties led their respective evidence. However, suit of the plaintiff was dismissed by the trial Court but his appeal was allowed by the Appellate Court and second appeal filed by the defendant was dismissed by the High Court. It is also submitted that as per the decree of the Appellate Court, the defendants are to make good the deficiency to the extent of 8 Kanals of land to the plaintiff for which no trial is required whereas in the issues framed by the executing Court vide impugned order dated 8.12.2012 the trial is being sought on the point as to whether JD No. 1 is in possession of 8 Kanals excessive area out of 63 Kanals of land or whether decree holder alongwith JD Nos. 2 to 8 are entitled to get possession, if so, of what area?
It is submitted by the learned counsel for the petitioners that this issue has already been decided in the suit that the plaintiff is entitled to 8 Kanals of land which is to be compensated by JD No. 1 and also they alongwith JD Nos. 2 to 8 are entitled to keep possession thereof.
Counsel for the respondent, has however, submitted that the Court below has dismissed the application on the ground that order dated 8.12.2012 should have been challenged by the petitioners by way of revision petition before the High Court and being a Coordinate Bench, it has no jurisdiction to set aside the order.
Counsel for the petitioners, in this regard, has referred to Order XIV Rule 5 (2) of CPC to contend that jurisdiction vests with the Court to pass any order before passing a decree, striking out any issue that appear to it to be wrongly framed or introduced.
Counsel for the respondent has, however, submitted that there is no error in the impugned order and if the petitioner was aggrieved against the order he could have approached this Court by way of revision but civil court itself had no jurisdiction.
After hearing learned counsel for the parties and examining the record, I am of the considered opinion that the Court below has committed an error in exercise of its jurisdiction while observing that remedy to rectify the error committed by the Court, while framing wrong issues vide order dated 8.12.2012 was only by way of civil revision though the said error could also be corrected by the same court, on the basis of an application filed under Order XIV Rule 5(2) of the CPC. Thus, the impugned order is erroneous and has to be set aside. Moreover, issues No. 1 and 2 could not have been framed by the executing court because the facts asked to be established in those issues, have already been established in the Appellate Court, in the suit and upheld by this Court in the second appeal. Thus, in view of the above, the present revision petition is allowed and the impugned order is hereby set aside.