Ayub Khan v. Chandra Prakash(Since Deceased)

Mr. Rakesh Kumar, for the petitioner. BY THE COURT: Heard learned counsel for the petitioner.

Judgment-debtor has preferred this writ petition challenging impugned order dated 08.03.2011 passed by executing court, whereby his objection petition has been dismissed.

It appears that a suit for specific performance was filed way back in the year 1986, wherein ex-parte decree was passed against the defendant. Thereafter an application under Order 9 Rule 13 C.P.C. was filed, which was dismissed, but High Court allowed the appeal and set aside the ex-parte 2 S.B. Civil Writ Petition No. 4422/2011 decree passed by the trial court. However, again the defendant did not appear and again ex-parte decree was passed on 17.03.1999. Present execution petition is pending for execution of decree dated 17.03.1999.

From the impugned order it appears that earlier one objection petition was filed by the present petitioner in the executing court, which was dismissed. Again present objection petition was filed on the ground that executing court has wrongly directed decree holder to give description of the property in dispute and in pursuance of the said direction, description of the property in dispute has been submitted by decree holder, which is not correct, therefore, he has apprehension that the property, which is not in dispute, will be made subject matter of the suit property by the executing court. Executing court rejected the objection petition by detailed order.

Executing Court has observed that present objection petition has been filed to delay the proceedings. So far as apprehension of the petitioner, that executing court is going beyond the decree, 3 S.B. Civil Writ Petition No. 4422/2011 is concerned, the same does not appear to be correct. It is settled law that executing court will not go beyond the decree. In these circumstances, I find that the reasons assigned by the executing court/court below appear to be absolutely justified and no interference in the same is called for by this Court.

The Hon'ble Supreme Court in Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte and another (AIR 1975 Supreme Court 1297), held, the High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it. 4 S.B. Civil Writ Petition No. 4422/2011

The Hon'ble Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim (AIR 1984 Supreme Court 38), held, that in exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal.

In view of above discussions, I do not find any merit in this writ petition and the same is, accordingly, dismissed in limine. (Narendra Kumar Jain),J. Manoj S.No.11.