Tarachand s/o Keshaorao Rokde vs Ramesh Natthuji Dhage (Since Deceased) through Legal Representatives and Ors.

Heard finally with consent of learned advocates for the respective parties.

The respondent No. 1 had instituted a suit for possession against the present petitioner, bearing Regular Civil Suit No. 21 of 1982, seeking decree of possession for the following immovable property :

The said suit was dismissed vide judgment and decree dated 02/03/1984. Appeal preferred by the respondent No. 1, bearing Regular Civil Appeal No. 254 of 1984, was also dismissed. The respondent preferred Second Appeal No. 440 of 1996, which came to be allowed by this Court vide judgment and decree dated 05/12/2007.

The respondent No. 1 filed execution petition, bearing Regular Darkhast No. 274 of 2016, for execution of the decree passed in his favour. In the said execution petition, the respondent No. 1 filed an application for amendment of the execution petition vide Exhibit-74. It is contended that after the decree for possession was passed, the petitioner had made encroachment on NMC (Nagpur Municipal Corporation) House No. 98, which is adjoining the suit property and is abutting the same towards its eastern side boundary. It is stated that the petitioner made construction over the said adjoining land somewhere in the year 2022. The respondent / decree holder claimed possession of the said eastern side portion as well.

The learned Trial Court has rejected the application for amendment vide order dated 16th August 2025. It must be stated that although the operative order does not state that application for amendment at Exhibit-74 is rejected, it is specifically observed in paragraph 7 of the order that allowing the application for amendment will result in amendment of the decree, which is not permissible, and therefore proposed amendment cannot be permitted. However, having held so, the learned Executing Court has ordered issuance of warrant of possession with respect to the suit property, that is NMC Property No. 98-B, as also the adjoining eastern bondary of the suit property, i.e. NMC Property No. 98 and NMC Property No. 98-A, which is situated on the eastern side of NMC Property No. 98.

The petitioner / judgment debtor has challenged the order dated 16/08/2025, contending that although the suit was instituted for possession of suit property, that is NMC House No. 98-B, decree is sought to be executed against NMC Property No. 98 and 98-A as well.

It will be pertinent to state that the petitioner / judgment debtor had also filed a suit against the respondent / decree holder claiming ownership over suit property i.e. NMC House No. 98-B and NMC Property No. 98-A. The said suit was dismissed by the learned Trial Court. Regular Civil Appeal No.254 of 1984 preferred by the petitioner / judgment debtor was also dismissed vide judgment and decree dated 31/03/1994. Second Appeal No. 11 of 1996 also came to be dismissed by this Court vide judgment dated 05/12/2007. In fact, Second Appeal preferred by the respondent / decree holder, that is Second Appeal No. 440 of 1994 and Second Appeal No. 11 of 1996 filed by the petitioner / judgment debtor came to be decided by a common judgment.

It must also be stated that Special Leave Petition No. 4243 of 2014 filed by the petitioner / judgment debtor was also dismissed by the Hon'ble Supreme Court.

The learned Executing Court has held that since suit for declaration of ownership filed by the petitioner / judgment debtor was dismissed right up to the Hon'ble Supreme Court, the petitioner / judgment debtor cannot claim any right, title, or interest over the other two house properties, that is NMC House No. 98 and 98-A, and as such, the decree holder was entitled for possession of the said two properties in addition to the suit property, and accordingly ordered issuance of warrant of possession with respect to all three properties.

It will also be pertinent to state that the present respondent / decree holder had also filed a suit for declaration and permanent injunction against the petitioner / judgment debtor, one Vinod Kewalram Rokde, and the respondent No. 4, being Regular Civil Suit No. 841 of 2016. The said suit came to be disposed of as withdrawn vide order dated 06/08/2016. In the said suit, the respondent / decree holder had stated that the petitioner / judgment debtor was making construction over the adjoining land bearing NMC Property No. 98. Decree was sought for a declaration that construction raised by the petitioner / judgment debtor was illegal, along with a decree for mandatory injunction for removal of the said construction. It is therefore apparent that even according to the respondent / decree holder, construction over adjoining land bearing Property No. 98 was raised prior to 03/08/2016 i.e. the date of institution of RCS No.841 of 2016.

The learned Advocate for the petitioner contends that the learned Executing Court has gone beyond the decree by ordering issuance of warrant of possession with respect to two other properties which are not subject matter of the suit. The learned Advocate did not raise any objection with respect to issuance of warrant of possession with respect to suit property bearing House No. 98-B. The learned Advocate would contend that merely because suit for declaration of ownership filed by petitioner / judgment debtor was dismissed, would not entitle the respondent / decree holder to obtain possession with respect to property which does not form subject matter of suit for possession which is decreed in favour of respondent / decree holder.

Per contra, Mr. Dhande argues that the learned Executing Court was fully justified in issuing warrant for possession with respect to adjoining land bearing NMC House No. 98. His contention is that the petitioner / judgment debtor had clandestinely made encroachment by way of construction over Property No. 98, which resulted in obstruction to the suit property, and therefore the learned Executing Court had the jurisdiction to order delivery of possession with respect to the said adjoining land bearing Property No. 98, although the same is not the suit property.

Mr. Dhande has placed reliance on judgments of this Court in the case of Iqbal Hussain s/o Ali Hussain (died) through L. Rs. Syed Ahmed Hussain s/o Ali Hasan and another vs. Municipal Council, Purna, reported in (2015) 6 Mh.L.J. 833, and Ashok Hari Gawali (Died) through Lrs. v/s Girish Gulabchand Bhate and Others, reported in (2019) 1 AIR Bom R 469 in support of his contention.

Mr. Dhande, however, does not dispute that warrant of possession is erroneously issued with respect to Property No. 98-A. He has restricted his arguments to justify issuance of warrant of possession with respect to Property No. 98.

It is not in dispute that the suit was instituted only for possession of Property No. 98-B. Although the respondent / decree holder is also owner of Property No. 98, the said property was not subject matter of suit for possession. The decree is not passed with respect to Property No. 98. It is well settled that an Executing Court is supposed to execute the decree the way it stands and that it is not open for the Executing Court to travel beyond the decree.

In view of the aforesaid settled legal position, the order issuing warrant of possession to the extent of Property Nos. 98 and 98-A, which are not the suit properties, cannot be sustained and is liable to be quashed by maintaining the order to the extent of issuance of warrant of possession qua the suit property, that is Property No.98-B.

It must also be stated that the learned Executing Court has rejected the application for amendment of the execution petition. Having refused to grant permission to amend the execution petition, by which prayer for issuance of warrant of possession with respect to adjoining land bearing Property No. 98 was sought to be incorporated, the learned Executing Court could not have ordered issuance of warrant of possession with respect to the said land.

As regards the judgment in the case of Iqbal Hussain s/o Ali Hussain (Supra), in the said case, a categorical finding was recorded that after filing of the suit for possession, the judgment debtor had committed encroachment over additional area of land. When the measurement was carried out, the judgment debtor was found to be in possession of 12 R additional land. The said encroachment blocked the passage and created obstruction to access the suit property. It is in this context that this Court has held that it was open for the Executing Court to pass a decree for removal of encroachment over the additional portion of land as well. It was held that such power was implicit in the Executing Court.

The ratio of the said judgment would not be applicable to the present case. The boundaries of the suit property will demonstrate that the suit property is abutting a main road which is situated alongside its northern boundary. There is nothing to infer that right of entry to the suit property is blocked by virtue of the construction/encroachment made by the judgment debtor on Property No. 98, which is situated alongside eastern boundary of the suit property.

In the case of Ashok Hari Gawali (Supra), possession was taken from the judgment debtor in the execution proceedings and the same was delivered to the decree holder. However, the judgment debtor took a stand that decree for possession was not executed and the judgment debtor forcibly occupied the suit property after execution of the warrant for possession. The decree holder applied for issuance of warrant of possession again. A contention was raised by the judgment debtor that the decree stood satisfied according to the decree holder in view of execution of warrant of possession and that once the decree was executed and satisfied, the Executing Court did not have jurisdiction to order issuance of fresh warrant of possession. The said contention was rejected by this Court and the order of issuance of warrant of possession was upheld.

The ratio of the said judgment cannot be made applicable to the facts of the present case. The judgment debtor has not committed fresh encroachment over the suit property after execution of warrant of possession. The decree holder is seeking possession of a property which is not subject matter of the suit which is decreed in his favour, which was not the situation in the case of Ashok Hari Gawali (Supra).

It must also be stated that although the respondent / decree holder has contended that possession of the adjoining land is taken and construction is raised in the year 2022, he had instituted a suit for removal of construction over Property No. 98 in the year 2016 itself. The contention that encroachment and illegal construction is raised in the year 2022 is not sustainable on this count.

In the result, the petition deserves to be partly allowed in the following terms: