When in execution a question arises as to the identity of the property of which possession has to be delivered to the decree-holder obviously such a question would relate to the execution of the decree and it would be for the executing Court to decide it as required by sub-section (1) of Section 47 of the Code, since it would not be possible for the decree-holder to get it determined by a separate suit, The proposition is so obvious so as not to need any authority. But no facts similar to High ones in the present case the Alahabad High Court in Rahim Buxv. Mohammad Shafi has held that in such cases it is for the execution Court to decide the question after taking such evidence as may be necessary as to what is the property of which possession has to be delivered. In this case also the executing Court would do well to hold a proper inquiry and determine the question with regard to the identity of the room which has to be delivered, to the applicant.Print Page
Bombay High Court
Madhukar Timbak Gore vs Vasant Ramkrishna Kolhatkar on 13 September, 1982
Equivalent citations: AIR 1983 Bom 277
1. This revision application raised an important yet interesting question with regard to the power and jurisdiction of the executing Court to pronounce on the validity of the decree sought to be executed by it. The facts giving rise to the present revision application briefly stated are as follows:
A house bearing Municipal House No. 13/12 consisting of four rooms and situated at Amravati originally belonged to one Maheboobkan. The applicant has taken one of these four rooms on lease form Maheboobihan for his dispensary in or about the year 1960. After the death of Maheboobkhan the ownership of the house changed hands and one Dhirajlal became owner on or about 15-6-1971. Dhirajlal obtained permission form the Rent Controller for terminating the tenancy of the applicant. The latter preferred an appeal against this order of the Rent Controller and that was said to be pending at the time when the present litigation started. During the pendency of that appeal Dhirajlal terminated the lease of the applicant and filed suit for ejectment being Regular Civil Suit No. 358. of 1973. That suit was also pending at the time when the present litigation started. The non-applicant acquired title to the suit house on or about 8-4-1974. It seems that he obtained vacant possession of three of the four rooms, the fourth being still occupied by the applicant as a tenant. It appear that after purchasing the house the nonapplicant stared, reconstructing it and in the process he removed a few tiles from the roof over the applicants room and also made a hole in the front wall. Felling aggrieved by this action on the part of the non-applicant and interference with his occupation as a lessee, the applicant instituted a suit being Regular Civil Suit No. 597 of 1974 in the Court of Third Joint Civil Judge, Junior Division at Amravati for injuction restraining the non-applicant from "making such construction to, or on the plaintiffs room, as to make eaves and rain and roof-water flow into the room" and also to restrain the non-applicant from disturbing the wall on the back of the room and making any further construction over the applicant's room. He also sought a mandatory injunction directing the non-applicant to replace the titles and so forth. This suit was instituted on 27-8-1974. Simultaneously with the presentation of the plaint, the applicant has also made an application for temporary injunction which was granted exparte on 28-8-1974. The non-applicant appeared in the suit and moved the Court for vacating the exempted parte interim injunction on 2-9-1974. However, before the non-applicant filed his written statement or the trial Court passed final order on the exempted parte interim injunction, the parties to the suit, namely the applicant and the non-applicant, on 29-10-1974 jointly filed an application under their signatures informing the Court that they had settled their dispute and set out the terms of compromise in the said application. By this application they prayed that decree should be drawn in terms of the compromise. Besides the applicant was also signed by their counsel. On the same day i. e. on 29-10-1974 the trial Court passed the following order on this application.
"Parties are present with their counsel. They admit the contents of this application as true. Hence a decree in terms of the compromise be passed against the defendants".
2. A more or less similar order came to be passed on the same day on the plaint and thus the suit was disposed of. Decree was drawn in terms of the compromise. Since they are relevant for the purpose of this revision application. I may quote the operative order of the decree in extenso:
"(1). That the defendants accept the plaintiff as his tenant of the room bearing M. C. House NO. 13/21 on Badneraroad, Amravati, which is at present in possession of the plaintiff.
(2) That the plaintiff agrees to shift to a room at the back side of the room occupied by him and wine ship owned by the defendants, to allow the defendants to carry out the necessary repairs such as laying a slab on the roof etc. in the said room occupied by the plaintiff.
(3) That the defendants agrees to carry out these repairs within four months' time from day the plaintiff hands over possession to him of the said room bearing municipal committee house No. 13/21, for the repairs. The possession is to be handed over to the defendants in 30-12-1974.
(4) That the defendants agrees to continue the plaintiff as tenant in the new renovated room as before and to put him back in possession of the said room, after the intended repairs are carried out by the defendants.
(5) That the plaintiff agrees to pay Rs. 50/- p.m. as rent inclusive of Rupees 40/- inclusive of all taxes, to the defendants after he is put back in possession of the renovated room, after the completion of repairs within 4 months as agreed above. The plaintiff agrees to pay rent to the defendants at Rs. 40/- p.m. for the occupation for the room in which he is to be temporality shifted on 30-10-1974 till he is put back in possession of the renovated old room bearing M. C.H. No. 113/21.
(6) If the defendants fails to put the plaintiff back in possession of the said room bearing M. C. High. No. 13/21 the plaintiff shall be entitled to put back in possession of the said room though the court in execution of this decree.
(7) the defendants agrees not to joint in the Reg. C. S. No. 358/73 which is pending in the Court of the 5th Jt. Civil Judge Junior Dn. Amravati filed by his predecessor-in-title Shri Dhirajlal Jagjiwandas Sangani of Amrravati.
(8) The parties will bear their own costs".
I may mention here that though the plaint refers to an map having been annexed to it, I did not find any such map in the record of the suit which is before me.
3. It appears that the applicant shifted to the room on the back side and the non-applicant carried out the repairs. However, the non-applicant did not put the applicant in possession of "the new renovated room" as required by Clauses 4 of the decree. The application, therefore, on 24-6-1975 filed an application from executing the decree by delivering possession of the said room to him. To this application he annexed a document which purported to describe by maters and bounds and dimensions the room of which he was seeking possession in execution. The executing Court directed a warrant of possession to be issued under Court. 21, R. 35 the Code of Civil Procedure (hereinafter referred to as 'the Code) on 27-8-1975. Accordingly warrant was issued but in was returned unexecuted with the endorsement of the bailiff that it could, not be executed because the description of the room which was shown by the application to the bailiff did not tally with the description which was given in the warrant, since in the description of the room in the warrant it was shown that there were titles over it while on the room shown by the applicant there was slab. In short, therefore, the bailiff did not executed the warrant because the room which the applicant showed to him was not the same as described in the warrant. This warrant was placed before the Court on 27-10-1975 and on the same date the non-applicant appearing in the execution proceeding and raised objections to the decree being executed on several grounds. Inter alia he contended that the applicant had deliver possession of the old room to him out of Court under the compromise and since the suit itself was for mandatory injuction, no decree regarding delivery of possession back to the application could be passed in that suit and that that compromised was nothing but an agreement between the parties and it cannot merge into an executable decree of the Court. Thus, according to the non-applicant, the executed Court had no jurisdiction to issue warrant for possession. He also contended that the old room which was in possession of the applicant had been completely demolished and a new room with larger dimensions had been constructed in its place and hence the applicant could not seek possession of any area larger than what he was in occupation prior to the reconstruction. He also contended that after reconstruction he had offered possession of the room with the earlier dimensions to the applicant but the latter refused to keep it and hence he had let it out to someone else. He lastly contended that the executing Court had no jurisdiction to put the applicant in possession of the old room since it did not exist at all. Needless to say that the applicant sought to meet these objections by giving his own reply. He also filed another document in which he gave description of the renovated room.
4. The executing Court by its order pass on 5-11-1977 held that the decree was not executable firstly on the ground that the terms of the compromise contained in the decree did not relate to the suit which was for permanent injunction and such a decree could not be made because of the provisions contained in Court. 23, R. 3 as it stood then. Secondly the executing also held that the decree could not be executed also for the reason that the house to which it related was not in existence. In this view of the matter the executing Court dismissed the application for execution and it is against this order that the present application has been filed.
5. Mr. V. P. Kukdey, the learned counsel for the applicant, submitted that the executing Court could not go behind the decree and pronounce on its validity simply because according to it is did not conform to the provisions of Court. 23, R. 3 of the Code. According to Mr. Kukdey the executing Court could go behind the decree only if it had been passed by a Court inherently lacking jurisdiction to do so but it cannot refuse to execute a decree simply because according to it the trial Court while passing it had overlooked certain provisions of the Code. According to Mr. Kukdey, this would amount to investing the executing which appellate powers to sit in judgment over the decree itself, which cannot be permitted by law. With regard to the second ground on which the executing Court held the decree to be inexecutable Mr. Kukdey submitted that the executing Court had to establish the identity of the property possession of which was to be delivered by making necessary inquiry if there was any doubt a decree without any such inquiry.
6. On the other hand, Mr. V. C. Daga, the learned counsel for the non-applicant submitted that on the face of it the trial Court could not have passed the decree since it dealt with the matters which did not relate to the suit and thus there was a clear contravention of Court. 23, R. 3 of the Code. According to Mr. Daga, if the trial Court had passed such a decree, it would be without jurisdiction and such a decree would be a nullity which cannot be executed in executing proceedings. Mr. Daga also submitted that the decree itself did not clearly state the room of which the applicant was entitled to possession and because of this vagueness in the decree the executing Court, was within its right to refuse to execute it.
7. Before I go to consider the rival contentions of the parties I may reproduce Court. 23, R. 3 of the Court as it stood before its amendment in 1976:
"Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by the any lawful agreement or compromise Court whether the defendants satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromises or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit".
It may be stand her that under the amendment of 1976, the words "so far as it related to the suit" as occurring in the rule earlier were substituted by the words "so far as it relates to the parties to the suit, whether or not the subjectmatter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit". By this amendment a proviso and explanation has been added to this rule but we are not presently concerned with them. Since the decree in the present case had been passed in 1974, the matter would have to be adjudged on basis of the rule as it stood prior to its amendment in 1976. It is needless to say that heavy reliance is sought to be placed by the non-applicant as also by the executing Court on the words, "so far as it relates to the suit" occurring at the end of the said rule.
8. In Kiran Singh v. Chaman Paswan the Supreme Court observed that it is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of executions and even in collateral proceedings and that a defect of jurisdiction, whether it is pecuniary or territorial, or whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.
9. However, in Hira Lal v. Sri Kali Nath the Supreme Court observed that the validity of a decree can be challenged in execution proceeding only on the ground that High Court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seizing of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendants was dead at the time the suit has been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. However, later on in this judgment the Supreme Court observed that objection as to local jurisdiction of a court does not stand on the same footing as an objection to competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction, but on the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S. 21 of the Code of Civil Procedure. The facts in Hira Lal's case would how much light on High controversy before maintenance and it would, therefore, be advantageous to note the facts and the ruing of the Supreme Court thereon at this stage. The appellants in that case had engaged the services of the respondent to acquire shares in certain mills at Agra. After the bargain was concluded and the appellant had purchased shares, the respondent instituted a suit in Bombay in the original side of this Court after obtaining its permission under Clause 12 of the Letters Patent for recovering his commission amounting to one lakh of rupees. The suit was referred to an arbitrary who gave award in favour of the respondent decreeing his claim for Rupees 75,000/- only. It seems that the appellant challenged the award before the High Court but it held that there was no defect in it and that there was no legal misconduct on the part of the arbitrator. The objections of the appellant were, therefore, dismissed and the decree was passed in terms of the award. It was transferred to the District Court at Agar for execution and when the respondent instituted execution proceeding in that Court, the appellant objected to the execution under Section 47 and 151 of the Code on a number of grounds one of them being that that Court had no jurisdiction to entertain the suit and to make the award a decree of the Court as no part of cause of action had arisen within its territorial jurisdiction. In short, therefore, it was contended by the appellant that the decree was passed without jurisdiction and hence it was inexecutable. The executing Court repelled this contention. The appellant failed in his appeal to the Allahabad High Court and ultimately the matter cam up before the Supreme Court on a certificate of fitness. It was on these facts that the Supreme Court made the above observations. However, a particular passage from the judgment of the Supreme Court which is relevant for out purpose may be reproduced:
"Having consented to have the controversy between the parties resolved by reference to arbitration though Court, the defendant derived himself of the right to question the authority of the Court to refer the matter to arbitration or of the arbitrator to render the award. It is clear, therefore, that the defendants is estopped from challenging the jurisdiction of the Bombay High Court to entertain the suit and to make the reference to the arbitrator. he is equally estopped from challenging the authority of the arbitrator to render the award."
10. In Sunder Dass v. Ram Parkash , relying on its earlier decision in the case of Kiran Singh and Hira Lal , the Supreme Court laid down the law in the following terms (at page. 1204):--
"Now, the law is well settled that an executing Court cannot go behind the decree not 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 wherever and wherever it is sought to be enforce 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 no decree at all".
11. From the observation of the Supreme Court in the above cases it would, therefore, appears that the executing Court could go behind the decree if the decree sought to be executed is a nullity for lack of inherent jurisdiction in the Court passing it. As to what could be termed as "lack of inherent jurisdiction" was illustrated and explained in Hira Lal's case.
12. A case on more or less similar facts as before maintenance had come up for consideration before a learned single Judge of this Court in Ambalal v. Somabhai (AIR 1944 Bom 46). It would be better to understand the decision therein. In that case the plaintiff were the owner for S. Nos. 14/1 and 135/2+1/1 and the defendants owned S. Nos. 141/2, 135/2 and 135/1/2 while S. No. 135/1/3 belonged jointly to the plaintiff and the defendants. The plaintiff claimed a right of way though the defendant's S. No. 135/1/2 to go to their filed, S. No. 135/2+1/1 while the defendants on their part claimed a right of way though the plaintiff's S. Nos. 135/2+1/1 and 141/1 to go to their S. No. 135/1/3. Since each of them dispute the right of the other, the plaintiff filed a suit for declaration of their right of way and injuction restraining the defendants from obstructing them in its use and also restraining the defendants from going though their S. Nos. 135/2+1/1 and 141/1. The suit ended in compromise decree providing that the defendants should sell to the plaintiff their S. Number 135/1/1 and their interest in S. Number 135/2/3 for Rs. 900/- to be paid before 27th Apr. 1941 and that no receipt of the said amount the defendants should pass registered sale-deed in favour of the plaintiff and deliver possession. The compromises application was singed by the plaintiff themselves. The pleader for the defendants alone singed it on their behalf purposing to act on an authority to compromise the suit, When the defendants came to know about the compromise, they protested by making an application under Section 151 of the Code to have the decree set aside on the ground of the fraud and also on the ground that their pleader had no authority to enter into compromise. That application was rejected and the defendants were referred to a suit. The plaintiff then deposited Rs. 900/- in Court and filed an application for execution in the executing Court to obtain sale-deed from the defendants and recover possession of their lands in execution of the compromise decree. The defendants objects to the decree being executed on two grounds, viz., that their counsel had no authority to compromise the suit and that the compromise itself was also outside the scope of the subject-matter of the suit. The executing Court held that it could not go behind the decree and hence directed the defendants to execute the sale-deed in according with the terms of the decree. Appeal to the District Court was dismissed and thus the matter came to this Court in second appeal. In the present revision application we are not concerned with the view which the learned single Judge took with regard to the authority of the pleader for the defendants to compromises the suit. However, the learned Judge exhaustively dealt with the contention of the defendants that the decree was inexecutable inasmuch as it embodied the terms which were foreign to the subject-matter of the suit and thus beyond the scope of Order 23, Rule 3. The learned single Judge devoted his attention to the expression "so far as it relates to the suit" occurring in Order 23, Rule 3 and considered its impact on the jurisdiction or power or competence of the Court passing the decree on the basis of compromise. It would be apt to reproduce the observations which the learned single Judge made in this behalf.
The expression "so far it relates to the suit", in Order 23, Rule 3, is certainly wider than the expression, "so far as relates to so much of the subject-matter of the suit as is dealt with by the compromise", which occurred in Section 375 of the former Code, and the matters which may not, strictly speaking, be the subject-matter of the suit itself as brought may yet "relate to the suit". Whether the compromise relates to the suit or not is a question which the Court which tries the suit has jurisdiction to decide. Even in case where a part of the compromise does not, strictly speaking, related to the suit and nevertheless the Court decides that it does relate to the suit and incorporates if into the operative portion and passes a decree in terms of it, the decree is not a nullity and not one passed without jurisdiction, but would be binding upon the parties to the decree, and its validity cannot be questioned in execution proceedings of that decree not can any title derived under it be attacked. As observed in ILR 55 All 775 : (AIR 1933 All 649), it is the duty of the Court under Order 23, Rule 3, to see that although the whole of High compromise between the parties is recorded, the operative portion of the decree is confined to that part only which elates to the suit. But it does not necessarily follow that if the Court does not strictly follow this direction, it is action without jurisdiction. There is a great different between want of jurisdiction and erroneous exercise of it".
Further on the learned single Judge observed as under:
".............. it may be taken as well settled that the objection that one of the terms of a compromise decree was outside the scope of the suit is not one for the executing Court to consider. If the Court was not right in including that terms in the operative part of the decree, it should have been challenged either by way of review or by way of appeal but the executing Court cannot go behind the decree".
13. In my opinion, what has been ruled by the Court in Ambala's case, (AIR 1944 Bom 46) squarely governs the facts of the present case since the facts are more or less identical. I respectfully agree with the decision of the learned single Judge in Ambala's case.
14. It is not disputed that the non-applicant had joined the applicant in requesting the trial Court passed the decree at the trial Court passed a decree in terms of the compromise. It is appears that the trial Court passed the decree at the invitation of the parties to the suit including of the parties to the suit including the non-applicant. Apparently the non-applicant did not subsequently challenge the validity of the decree in appeal or by way of review on the ground that it included certain terms which did not relate to the suit. He did not try to get that par of the decree set aside under which he was required to put the applicant back in possession of the renovated room. On the other hand, he took the recourse to the decree in taking possession of the previous tenement form the applicant and thus derived advantaged under the decree. Question is, could it not be said that he was estopped from challenging the validity of the decree itself in execution proceedings when the applicant way trying to the enforce the term in the decree with regard to putting him back in possession of the renovated room. It is in this connection that the observation of the Supreme Court in Hira Lal's case with regard to estoppel become relevant. In this connection may also refer to a decision of a Division Bench of the Alahabad High Court in Nizam Uddin v. Ikramul Haq (AIR 1947 All 143.) In that case in a suit for perpetual injunction restraining the defendants from interfering with the plaintiff possession over certain property and in the alternative for possession a decree in terms of the compromise was passed under which one of the defendants agreed to transfer certain property to the plaintiff by way of exchange for the property which that defendants was allowed to retain in his possession. Under the compromise the parties were to execute and get a registered deed of exchange. When the defendants did not abide by the terms of the compromise decree, the plaintiff stated execution proceedings against them and inter alia it was contended before the executing Court that the decree was not capable of execution since the trial Court had overstepped its power under Order 23, Rule 3 of the Code. Repelling this contention the Division Bench made the following observations:
"It was the duty of judgment-debtor as much as that of the decree-holder to see that a proper decree was firmed by the Court and that the operative portion of the decree expressed the real intention of the parties. The jurisdiction-debtor never raised an objection, at the proper time, to the frame of the decree. He acquiesced in the decree being passed in the matter in which it was passed in and he took benefit thereunder. The question of the framing of the decree is a mater relating to producer. In these circumstance therefore, we cannot rip up the transaction which is 18 years old at the invitation of a party who has not only lain asleep upon his right, assuming there were any, but has also gained material benefits under the transaction. We shall not, therefore, linger over the question whether the decree was framed by the Court, which passed it, in strict compliance with the provisions of O. 23, R. 3, Civil P. C. "
These observation would apply with equal force to the facts of the present case. The fact that the decree in Nizam Uddin's case was challenged as inexecutable after a long lapse of time would not, in my opinion, make difference for the application of principle which has been laid down in that case.
15. I Vishun v. Ramachandra (AIR 1932 Bom 466) and Umiashankar v. Shivashankar (AIR 1944 Bom 399) (2)) Division Benches of the Court have held that the extraneous matter, if so intimately connected with the subject-matter of the suit that it would be really a consideration of the agreement or compromise, the words "so far as it relates to the suit" are sufficiently wide to embrace such matter. Following this proposition High Andhra Pradesh High Court in Seth Harak Chandas v. Huderabad State Harak Chandas v. Hydrabad State Ban has held that the fact that the compromise relates to the property not the subject-matter of he suit is not in all cases decisive of the question. whether the compromise does not relate to the suit and that all terms which from the consideration for the adjustment of the matters in dispute, whether they form the subject-matter of the suit, or not, become elated to the suit and can be embodied in the decree. Now here we find that the terms of the decree that the non-applicant would put the applicant in possession of the renovated room was a consideration for the applicant to vacate the room originally occupied by him, for the time the non-applicant wanted to carry out the repairs. As a matter of fact, the non-applicant agreed to consider the applicant as a tenant in respect of the renovated room in a bid to obtain possession from him for carrying out the repairs. Now if that was the consideration for taking possession of the room from the applicant, it cannot be said to be executed in the execution proceeding could not be a matter related to the suit.
16. Mr,. Daga, the learned counsel for the non-applicant drew my attention to the two decision of the Calcutta High Court in Bhusan Chandra v. M/s. Bengal Coal C. O. B.. Ltd. and Trilok Chand v. Dayaram as also a decision of the Allahabad High Court in Baby Nandan v. Mt. Sumitra . I do not see how the decision in Bhusan Chandra's case helps the non-applicant. It is true that some observations in Trilok Chand's case may support the non-applicant. But I have already pointed out above that the view taken by this Court in Ambala's case (AIR 1944 Bom 46), with which I administration in agreement, it different from what has been held in Tailok Chand's case. Babu Nandans case is an authority merely for the propositions that the fact that the judgment-debtor has not taken place in defendants in the original suit that it was not legally maintainable in the Civil Court would not be a bar to raising the plea for the validity of the decree on the ground of want of jurisdiction in execution proceeding. I do not see how these observations would come into play in this case.
17. From what I have observed above it would be clear that it is not at all possible to say that the trial Court lacked inherent jurisdiction while it directed the decree to be drawn in terms of the compromise and particularly to the matters which did not relate to the suit. Since, as pointed, above, it did not inherently lack the jurisdiction to do so, it cannot be said that the decree as passed was inexecutable.
18. This then brings me to the second ground on which the executing Court has refused to execute. the decree, viz., that the identity of the property of which the applicant was seeking possession was not established. It is true that the decree as drawn does not give the description of the room of which the non-applicant was supposed to put the applicant in possession under Clause 4 of the decree, after repairs. Now in this respect. on would have to look to all the terms of the decree and the background in which the compromise was arrived at. It does not appear that there was any dispute with regard to the identity of the room which the applicant was occupation prior to his handing it over to the non-applicant for repairs or renovation. Clause 2 of the decree specifically states that the application would shift to a room on the back side to enable the non-applicant to carry out the necessary repairs such a laying slab on the room. "in the said rooms occupied by the plaintiff ". Clause 3 further provides that the non-application was to carry out the repairs within four months from the date the applicant would hand over possession to him and further clause 4 says that the non-applicant agreed to continue the appellant as his tenant in the new renovated room as before and to put him back in possession of the said room after the intended repairs had been carried out. From all these clause in the decree it is abundantly clear that what was intended was that the applicant was to hand over possession of his previous tenement to the non-applicant who, after putting up a slab on the roof and carrying out other necessary repairs, would hand it over back to the applicant. In these circumstance it is difficult to see how it could be said that the decree was not clear as to the room of which the applicant was to be put in possession in pursuance was of Clause 4 thereof. It should have been clear to the Court that what the decree required the applicant to put in possession was the old room as renovated by the non-applicant while renovating the room has so much changed the dimension and description that it does not agree with the description given in the suit. But the decree cannot be frustrated on this ground when the non-applicant had solemnly entered into a compromise and asked the Court to make it a part of the decree. If the Court found that proper description of the property which was to be delivered to the applicant was not available from the record, it was its duty to ascertain it by making a proper inquiry. Obviously the executing Court has not made any effect in this direction.
19. When in execution a question arises as to the identity of the property of which possession has to be delivered to the decree-holder obviously such a question would relate to the execution of the decree and it would be for the executing Court to decide it as required by sub-section (1) of Section 47 of the Code, since it would not be possible for the decree-holder to get it determined by a separate suit, The proposition is so obvious so as not to need any authority. But no facts similar to High ones in the present case the Alahabad High Court in Rahim Buxv. Mohammad Shafi has held that in such cases it is for the execution Court to decide the question after taking such evidence as may be necessary as to what is the property of which possession has to be delivered. In this case also the executing Court would do well to hold a proper inquiry and determine the question with regard to the identity of the room which has to be delivered, to the applicant.
20. Mr. Daga, relying on the decision of the Supreme Court in Managing Director v. Ajit Prasad Tarway, and Sher Singh v. Joint Director of Consolidation , submitted that since on jurisdiction error was committed by the executing Court, this Court cannot interfere with the impugned order in its revisional jurisdiction. I administration only say that in holding that the decree was in executable the executing Court has refused to exercise the jurisdiction which, as pointed about, vested in it and hence this Court would be within the power to quash the impugned order.
21. Besides the above two grounds the non-applicant had raised other objections to the execution of the decree which have not been decided by the executing Court. This is would, have to do.
22. In the result the revision application is allowed. The order passed by executing Court on 5-11-1977 is hereby set aside and the executing Court is hereby directed to dispose of the execution possession in the light of the observations made above and in accordance with law. Costs of the revision application shall be costs be costs in the execution proceedings.
23. Revision allowed.