Banshi Lal v. Gauri Bai (Deceased)

: Mr. Mohd. Afroz Athar, Advocate appears through Video Conferencing. For Respondents : Mr. Anshul Tiwari, Advocate. (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) 2 Order on Board 18/06/2026

2. With the consent of learned counsel for the parties, the matter is heard finally. Instant civil revision has been filed by the petitioners/ plaintiffs seeking following reliefs :- “ (I) Call for the records of the Execution Case No. 04/2025 in the Court of learned Civil Judge, Senior Division, Gariyaband; (ii) Set aside the order dated 30-10-2025 passed by the 1 st Civil Judge, Senior Division, Gariyaband in Execution Case No. 04/2025 (Annexure P-10. And / or (iii) Pass such other order as the Hon’ble court may deem fit and proper.

3. Learned counsel appearing for the petitioners would submit that vide judgment & decree dated 05.05.2017 (Annexure P-2), learned Civil Judge, Class - 01, Gariaband, District Gariaband declared that plaintiffs namely, Banshilal, Bhagirathi & Shukhdeo and defendant No. 2 – Bhagwati (Petitioner No. 4 herein) & defendant No. 3- Bhagwanteen (petitioner No. 5 herein) were having title and possession of half share of suit land i.e. 50% whereas defendant No. 1/respondent No. 1 - Gauri Bai (dead) through legal heirs were having title and possession of remaining half share i.e. 50% of suit land. Thus, only title and possession of the parties were declared vide said decree, but learned Executing Court /First Civil Judge, Senior Division, Gariyaband vide impugned order dated 30.10.2025 passed in Execution Case No. 04/2025 exceeded the decree and directed for partition between the parties in aforesaid manner, whereas, no decree of partition was granted by the trial Court. Hence, he prays that impugned order dated 30.10.2025 be set aside holding it to be illegal. 3

4. In reply, learned counsel for the respondents would submit that in compliance of the impugned order dated 30.10.2025, Tahsildar, Chhura, District Gariaband vide order dated 18.02.2026 in Revenue Case No. 201511220700035/aav-27 / Year 2025- 26 has executed impugned order passed by the Executing Court, therefore, this civil revision has become infructuous, rather the petitioners/plaintiffs may challenge the order dated 18.02.2026 passed by the Tahsildar, Chhura, District Gariaband (C.G.).

5. I have heard learned counsel for the parties and perused the material available on record.

6. Vide judgment & decree dated 05.05.2017 (Annexure P-2), learned Civil Judge, Class -1, Gariaband, District Gariaband has granted following decree in favour of the plaintiffs:- “01. oknhx.k vkSj izfroknh dzekad& 02 vkSj 03 rFkk izfroknh dzekad &01 xkSjhckbZ xzke jlsyk rglhy Nqjk ftyk xfj;kcan N‐x‐ fLFkr oknxzLr Hkwfe [kljk uacj 44 {ks=Qy 4‐37 gsDVs;j ds la;qqDr LoRok/kkjh ,oa vkf/kiR;/kkjh gS A oknxzLr Hkwfe esa pSuflag ds okfjlku oknhx.k vkSj izfroknhx.k dzekad& 02 vkSj 03 la;qDr :i ls rFkk izfroknh dzekad&01 xkSjhckbZ] vk/ks&vk/ks va’k ds LoRok/kkjh gS A

02. oknhx.k ,oa izfroknhx.k viuk&viuk okn O;; ogu djsaxs A

03. vf/koDrk 'kqYd izekf.kr gksus ij vFkok lwph vuqlkj tks Hkh U;wu gks fn;k tkos A

7. Perusal of aforesaid declaration made by learned trial Court shows that only declaration of title and possession of plaintiffs and defendants (respondents / petitioners herein) were made by the trial Court, no decree of partition of the suit land was granted. But vide impugned order dated 30.10.2025 in pursuance of aforesaid decree, learned Executing Court further directed that as per aforesaid decree, suit property be partitioned between the parties, whereas the decree was only limited to the declaration of title & possession of the suit land and no decreee of partition of the suit land was granted by the trial Court. Thus, it is clear that 4 impugned order passed by the Executing Curt had exceeded the decree granted by the trial Court.

9. It is trite law that Executing Court cannot go beyond the decree. Hon’ble Supreme Court in the matter of Maurice W. Innis vs. Lily Kazrooni @ Lily Arif Shaikh1 relying upon various judgments has observed as under :- “25. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors.2, 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 Prakash3. 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 1 2 3 2026 SCC OnLine SC 554 (1970) 1 SCC 670 (1977) 2 SCC 662 5 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 [AIR 1954 SC 340 and Seth Hiralal Patni v. Sri Kali Nath [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.”

10. As has been observed in preceding paragraphs, no decree of partition was granted by the Trial Court, but vide impugned order 30.10.2025, Executing Court passed order for partition of suit land between the parties in compliance of aforesaid decree passed by the Trial Court, which is clearly against the law laid down by the Apex Court in afore-cited cases.

11. Though impugned order dated 30.10.2025 has been complied with by the Tahsildar, Chhura, District Gariaband (C.G.) vide order dated 18.02.2026, but since order passed by the Executing Court itself is against the settled principle of law, therefore, order passed by the Tahsildar, Chhura, District Gariaband in compliance of impugned order cannot prevent this Court from setting aside illegal order dated

30.10.2025 passed by the Executing Court / First Civil Judge, Senior Division, Gariyaband, hence, contention raised by learned counsel for the respondent in this regard is also not sustainable. 6

12. In view of above, impugned order dated 30.10.2025 passed by Executing Court / First Civil Judge, Senior Division, Gariyaband in Execution Case No. 4 /2025 {Gauri Bai (dead) through her legal heirs vs. Banshilal & others) is set aside.

13. Accordingly, the civil revision is allowed and the Executing Court is directed to execute the decree in its terms and tenor.

14. Pending interlocutory application (s), if any, stands disposed of. Sd/- (Naresh Kumar Chandravanshi) Judge