(In the matter of an application under Article 227 of the Constitution v. Baldeo Prasad Gupta

--- Present: HON’BLE MR. JUSTICE P.P.BHATT. By Court: The petitioner, by way of filing this writ petition under Article 227 of the Constitution of India, has prayed for quashing and setting aside the order dated 11.03.2010 passed by the learned Sub-Judge, 1st at Jamtara in Execution Case no. 02/1997, whereby, the petition filed by the decree holder dated 06.10.2007 has been allowed with a direction to pay Rs.1,60,200/- to the present petitioner-defendant. A direction was also given to the petitioner to deposit the said amount within 30 days from the date of the order.

Heard the learned counsel for the petitioner as well as respondent appeared in person and perused the impugned order as well as materials placed on record.

From perusal of record, it appears that after hearing the parties, this Court vide order dated 01.07.2010 directed the petitioner to deposit a sum of Rs.10,000/- within two weeks from the date of order and on deposit of such amount the further proceedings of Execution case No.02 of 1997 pending in the court of Sub-Judge-I, Jamtara was ordered to be stayed.

Learned counsel for the petitioner submitted that the executing court has not properly considered the objection raised by the petitioner in Execution Case No.02 of 1997 wherein the petitioner has raised the question of law that though the respondent-plaintiff has not filed any cross objection in appeal preferred by the present petitioner, the appellate court allowed the additional claim without any basis.

It appears that the court below while dealing with the execution case rejected the objection as the present petitioner has not preferred any appeal. It is settled position of law that executing court can not go beyond the judgment and decree. In the instant case the first appellate court's judgment and decree is under execution.

Learned counsel for the petitioner in support of his submission has referred to and relied upon the judgment reported in (2003) 9 SCC 606 (Banarsi and Others Vs. Ram Phal). I have perused the decision cited by the learned counsel for the petitioner but looking to the facts and circumstances of the present case, it does not help to the petitioner's case.

On perusal of the order of the executing court, it appears that it is well reasoned order. The finding of the first appellate court has not been challenged either in revision or second appeal, therefore, the Executing Court is bound by the judgment of the appellate court.

Petitioner is directed to deposit the awarded amount before the executing court within one months from the date of the order otherwise the executing court shall proceed further to recover the same in accordance with law.

With the aforesaid observations writ petition stands dismissed. Jharkhand High Court, Ranchi Dated: 11th July, 2013. Saket-/ NAFR. (P.P. Bhatt, J.)