Judgment:
P.K. Bahri, J.
(1) This civil revision is directed against the orders dated 9th June, 1984 and 10th August, 1984 of Shri A.K. Srivastava, SubJudge, by which he had held that the execution petition moved by the petitioner/decree-holder is inexecutable and the plot in respect of which the decree for possession had been obtained by the petitioner/decree-holder does not exist at the spot and he allowed the objections of the respondent/judgment-debtor holding that the respondent/judgment-debtor is in possession of property A-47 in respect of which the decree-holder cannot get any warrants of possession in execution of the decree obtained by the petitioner/decree- holder against the respondent.
(2) The facts of the case in brief are that the petitioner/plaintiff had filed a suit under Section 6 of the Specific Relief Act against the respondent/ defendant for getting relief of possession in respect of plot measuring 200 sq. yards bearing No. V/B-64-B in Varinder Nagar bounded on East by service Lane, West by road, North by house No. WZ-213 and South by house No. WZ-218B as shown in the site plan which was filed Along with the plaint and was exhibited as Ext. P-2 situated in Khasra No. 781. It was averred in the plaint that the plaintiff/petitioner had purchased this plot from Ram Gopal vide Sale Deed dated 7th April, 1970 registered on 13th April, 1970 and the said plot was trespassed into by some other persons and he had filed a suit numbered 492 of 1973 against those persons, namely-Jagan Nath and Goverdhan Dass on 27th August, 1973 and the suit was decreed for possession against those persons on 13th February, 1975 and in execution of the said decree possession was taken and decree was satisfied on 4th January, 1980 and that thereafter the present respondent/defendant had taken illegal possession of the said plot necessitating the filing of the said suit, under Section 6 of the Specific Relief Act.
(3) The respondent/defendant contested the said suit on various pleas including that the decree obtained against Jagan Nath and Goverdhan Dass was fictitious one and on merits it was pleaded that the respondent/defendant had purchased the plot in question and had taken possession from the vendor. During the pendency of the suit the respondent/defendant moved an application under Order 6 Rule 17 of the Code of Civil Procedure with a view to amend the written statement in order to take the plea that the property in possession of the defendant/respondent bears Municipal No. A-47 but the said application was dismissed. A plea was also taken that suit was not properly valued for purposes of court fee and jurisdiction. Smt. Pratibha Rani, Sub-Judge, held that the suit should be valued for purposes of courtfee and jurisdiction at Rs. 21,000.00 and I am told that the necessary court fee was paid on the said valuation. Thereafter the suit was decreed by Shri V.K. Malhotra, Sub-Judge, in respect of the plot shown in the map, Ext. P-2. The execution application was moved by the petitioner/decree-holder for getting the possession of the said plot. The respondent/judgment-debtor filed objections under Section 47 of the Code of Civil Procedure pleading that the respondent/judgment-debtor is in possession of property bearing No. A-47 and was not liable to be dispossessed from the said property in execution of the decree for possession as the decree for possession did not pertain to the property in possession of the respondent/judgment-debtor. It appears that on 29th May, 1981 the Court recorded the statement of the counsel for the petitioner/decree-holder in which he mentioned that the decree-holder has nothing to do with property No. A-47 and the decree bolder would take possession only of the plot VB-64-B. Then statement of the counsel for the respondent/judgment debtor was also recorded in which he stated that the judgment debtor had no objection to the decree-holder getting possession of plot No.VB-64-B but he went on to state that the judgment debtor is in possession of property No. A-47 having following boundaries : East : Service Lane West : Road North: WZ-213or213-A South : House No. WZ-218-B (A-46) The Court without recording any clarificatory statement of the decree-holder whether the decree-holder is to get possession of the plot bounded as mentioned in the statement of the counsel for the respondent/judgment-debtor proceeded to pass the order that admittedly the judgment-debtor is owner of property A-47 and judgment-debtor has no connection with property VB-64-B and decree-holder has no concern with A-47 so he directed that the decree-holder shall not get possession of A-47 and warrants of possession be issued against property No. VB-64-B.
(4) It is the case of the decree-holder that the judgment-debtor later on raised certain constructions on the plot in dispute. The objections of the judgment-debtor came to be dismissed vide order dated 23rd December, 1981 of Shri A.K.Srivastava, Sub-Judge, and it was held by him that the plot in respect of which the decree for possession had been passed can be easily identified from the map and the boundaries given in the said map and the plan and thus the judgment-debtor could not be allowed to say that the said plot bears Municipal No. A-47. The warrants of possession were directed to be issued and be executed by breaking open the locks and the doors. Civil Revision No. 630 of 1981 was filed by the judgment debtor against the order of the learned Sub-Judge by which the objections were dismissed which came to be dismissed by order of N.N. Goswamy, J. on 9th August, 1982 in which it was clearly held that the warrants of possession can be issued against the plot which had been clearly described in the plan filed in the suit. inspire of the matter becoming final, the judgment-debtor/respondent did not give possession. It appears a suit for declaration and injunction was filed by the judgment-debtor which was later on withdrawn, The decree-holder had filed an application for grant of police aid which was granted and thereafter the decree-holder moved an application under Order 21 Rule 35 of the Code of Civil Procedure for getting the vacant possession of the plot after demolishing the structure raised on the plot by the judgment-debtor/respondent during the pendency of the execution proceedings. The Respondent/judgment debtor again filed objections to that application taking similar pleas and Shri Ashok Srivastava, Sub-Judge, again took up the matter and thought it fit to make a spot inspection and he after carrying out certain measurements at the spot gave the opinion that the plot No. VB-64/B is not identifiable at the spot and thus he dismissed the execution application of the decree-holder and upheld the objections of the respondent/judgment-debtor.
(5) I have heard the arguments of learned counsel for the parties and have carefully gone through the whole record.
(6) In para I of the plaint it was mentioned by the petitioner/plaintiff that the plot, subject matter of the said suit, measures 200 sq. yards and bears plot No. V/B-64/B bounded as follows :- East- Service Lane West- Road North- House No. WZ-213 South- House No. WZ-218B The plan Ext. P-2 which was proved in the suit by the petitioner/plaintiff also depicted the said plot in red colour giving the same boundaries. It is pertinent to mention that the respondent/judgment-debtor had given the same boundaries of the property which according to him bears Municipal No. A-47. The Municipal number of the property in dispute was not given in the suit by the petitioner/plaintiff. It is obvious that the Coloniser had given different. plot numbers and had sold the plots giving those plot numbers and it is only later on that the Municipal Corporation have come into picture and have given Municipal numbers. The glaring and important fact which must be kept in mind is that the boundaries of the plot in dispute were given in the plaint in clear terms and the plot was also delineated with complete boundaries in the plan filed Along with the plaint which was also proved. The suit of the petitioner/plaintiff was decreed for possession under Section 6 of the Specific Relief Act in respect of the said plot. It is not disputed by Bawa Charan Singh, learned counsel for the respondent that if the possession is to be delivered in accordance with the plan only then there is no difficulty in petitioner's/decree-holder getting the possession. That was the only question which the Executing Court was competent to go into. The Executing Court had no jurisdiction to go beyond the decree for possession passed in favor of the petitioner. It is important to note that the respondent/judgment-debtor admits that he is in possession of the plot having the same boundaries as given in the plaint as well as in the map filed Along with the plaint. The respondent/judgment-debtor (sic) is harping on that the said plot bears Municipal No. A-47 and not V/B-64/B. There is nothing special or important in the number. What was important was as to what plot had been the subject matter of suit filed by the petitioner/plaintiff seeking possession under Section 6 of the Specific Relief Act and that plot was completely identifiable from the map as well ai the boundaries given therein. The houses located on the North and South bear the Municipal Numbers and in between the two houses i.e. WZ-213 and WZ-218-B lies the plot in respect of which the decree for possession was passed and on the East and West there are service Jane and the road. So the Executing Court bad no jurisdiction whatsoever to go into the question whether the said plot bears Municipal No. A-47 or not. However, the confusion was allowed to be created by the lapse of the decree-holder/petitioner himself when his counsel went on to make a statement before the Executing Court that the decree-holder had nothing to do with the property bearing Municipal No. A-47. It appears that it was not brought to the notice of Court that the petitioner/decree-holder was claiming possession of the plot bearing the same boundaries which was subject matter of the suit in which the decree was passed. At any rate the objections of the respondent/judgment-debtor were dismissed by Shri Ashok Srivastava after giving opportunity of hearing to both the parties. The matter was taken up by the respondent/judgment-debtor in High Court by filing a Civil Revision which also came to be dismissed. It is not understood how the Executing Court could have re-opened the issue and come to a different conclusion. There was no need for the Executing Court to have inspected the spot and carried out measurements in order to locate the plot No.VB/64-B without bothering to see the boundaries mentioned in the plaint as well as in the plan in respect of which the suit stood decreed. In the report prepared by Shri Ashok Srivastava, Sub-Judge, nothing has been mentioned as to why the plot could not be located by its boundaries. At any rate the impugned order could not have been made by the learned Sub-Judge when similar objections have already been dismissed by him after contest between the parties. The said order operated as rest judicata between the parties in any event.
(7) Counsel for the respondent/judgment debtor vehemently argued that the petitioner/plaintiff had played mischief inasmuch he had given the description of the plot and boundaries in the first suit filed against Jagan Nath and Goverdhan Dass differently and also in the map filed in execution of that decree again in contradiction with the boundaries given in the plaint and had taken possession in execution of that decree of a plot which was not subject matter of that suit. The Executing Court could not have gone into this question at all. If there was any such mischief by the decree-holder the respondent/judgment-debtor had the opportunity to contest the suit on merits filed under Section 6 of the Specific Relief Act and take all these points in that suit. After the suit for possession had been decreed against the respondent/judgment-debtor under Section 6 of the Specific Relief Act pertaining to the plot as delineated in the map and in paragraph I of the plaint, the Executing Court could not go beyond the said decree and the property so described in the said plan, Ext. P-2, became part of the decree. The Executing Court had to just execute the decree and give possession of the said plot to the petitioner/plaintiff and no objection could be entertained on behalf of the respondent/judgment-debtor on the point that the said plot in possession of the respondent bears Municipal No. A-47 or not. The fact remains that the plot which was clearly described and delineated in the plaint as well as in the map has to be given possession of the decree holder/petitioner in execution of the said decree, because the plot in respect of which the decree had been passed could be clearly identified by its boundaries and the question of whether plot bears any Municipal number or not is of no importance as far as the matter pending before the Executing Court was concerned. The impugned order hence cannot be sustained. However, learned counsel for the respondent/judgment-debtor has argued that it is on account of a confusing statement given by counsel for the decreeholder on 29th May, 1981 before the Executing Court that the decree-holder had no concern with the property bearing No. A-47 which led the respondent/ judgment-debtor to withdraw the suit filed in the Civil Court and the decree holder should be estopped from going back from that statement. The fact that the respondent/judgment-debtor had withdrawn his particular suit on some mis-apprehension does not mean that the decree-holder is stopped from executing the decree because the boundaries of the plot in respect of which the suit had been decreed clearly make the plot identifiable and the boundaries of the plot were known to the respondent/judgment-debtor from the 'date he contested the civil suit. Hence he could not have been misled by any mis-representation made by counsel for the decree-holder by giving a statement that the decree-holder had no concern with property bearing Municipal No. A-47. So, the decree-holder/petitioner is not estopped from, executing the decree in respect of the plot which is quite identifiable from its boundaries. I hence allow this civil revision petition and set aside the impugned orders and direct that the execution petition of the decree-holder be restored to its original number and warrants of possession be issued and possession be delivered with the aid of the police after demolishing the structure existing at the spot and the respondent/judgment-debtor would be entitled to remove 'malba'. The petitioner/decree-holder shall have costs in this civil revision petition. Counsel fee is fixed at Rs. 1,000.00.