Order 6

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Ex 192/25
HARI OM PANDEY Vs. VIMLA PANDEY
25.02.2026
Present: Ms. Bhavya Aggarwal, Ld. Counsel for the DH.
Ms. Divya Singhvi and Ms. Arya Kumar, Ld.
Counsels for the JD.
1. The present order addresses the objections filed by
the judgment debtor (JD) against the execution of
judgment and decree dated 08.07.2025.
BRIEF FACTS
2. The relevant facts necessary for adjudication of the
objections are set out herein below:
2.1 The plaintiff/decree holder (DH) instituted Civil Suit
No. 397/19 seeking permanent and mandatory injunction
alongwith mesne profits in respect of property bearing no.
4/99, Khichripur, Delhi-91 (hereinafter referred to as ‘the
suit property’).
2.2 It was pleaded that the suit property had been allotted
in 1976 to Late Sh. Bhagwat Pandey under the Jhuggi
Jhopri Removal Scheme of the Delhi Development
Authority (DDA) through the Slum and JJ Department. Late
Sh. Bhagwat Pandey, being unmarried and without
biological heirs, adopted the plaintiff through a registered
adoption deed dated 24.02.2014. Upon adoption, the
custody of the plaintiff was handed over to Bhagwat
Pandey and his name was reflected as his father in official
records.
2.3 On 24.03.2014, Bhagwat Pandey expired. The plaintiff
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performed his last rites as his adopted son. It was further
pleaded that during his lifetime, Bhagwat Pandey had
permitted his brothers, Late Shrinath Pandey and Nirankar
Pandey, to reside in the suit property as licensees. After
Bhagwat Pandey’s demise, the plaintiff/DH claimed to have
inherited the suit property as the sole class I legal heir and
thereby stepped into the shoes of the licensor.
2.4 In the written statement, the defendant no. 1
contended that it was Late Shrinath Pandey who had
permitted Bhagwat Pandey to reside in the property and
that the allottment stood in Bhagwat Pandey’s name only
because he was the eldest member of the family.
3. The suit was decreed vide judgment and decree dated
08.07.2025. The LRs of defendant no. 1 were directed to
handover peaceful and vacant possession of the suit
property and to pay mesne profits @ Rs. 3,000/- per month
from 01.04.2019 till delivery of possession.
4. The warrants of possession were executed and
possession of the suit property was handed over to the DH
on 08.10.2025. Thereafter, the present objections have
been filed by the LRs of the JD.
SUBMISSIONS
5. Ms. Divya Singhvi, Ld. Counsel for the LRs of JD,
advanced the following contentions:
5.1 The DH has not approached this court with clean
hands and has concealed material facts regarding the
ownership of the land. The original allotment in 1976 was
on a license basis, hence, Bhagwat Pandey was himself
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only a licensee and therefore, the plea that the JD was
residing as a licensee under him is untenable.
5.2 The JD and his family have been residing in the suit
property since inception and possessed water and
electricity connections in their names.
5.3 The adoption of the plaintiff is suspicious as Bhagwat
Pandey expired within one month of the adoption. It is
improbable that a 60 year old unmarried man would
suddenly adopt a 7 year old child.
5.4 The essential ingredients for claiming mesne profits
viz.— unauthorized possession and receipt of benefits or
profits due to such possession— have not been
established.
5.5 Reliance has been placed on the judgment of Hon’ble
High Court of Delhi in Sarvinder Singh and Anr. Vs.
Vipun Tandon1 and the judgment of Hon’ble Madras High
Court in Ramakka Vs. Negasam2.
6. Ms. Bhavya Aggarwal, Ld. Counsel for the DH,
advanced the following submissions:
6.1 The issues now sought to be raised were part of the
written statement and have already been adjudicated in the
judgment dated 08.07.2025.
6.2 The license of the defendant was terminated vide legal
notice dated 16.03.2019 (Ex. PW-1/4), after which the
occupation became unauthorized. The award of mense
profits @ Rs. 3,000/- per month was made after due
consideration.
Cont..
1 CS (OS) 2543/2015
2 1923 SCC OnLine Mad 303
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6.3 The objections are a dilatory tactic to prevent the DH
from enjoying the fruits of the decree.
ANALYSIS AND REASONS
7. I have heard the submissions and perused the record.
From the record of the proceedings, it is evident that the
objections now raised by the JD substantially replicate the
defence taken in the written statement and considered in
the judgment dated 08.07.2025. The JDs, despite having
sufficient opportunities, chose not to contest the suit or to
lead any evidence, and have now attempted to re-
introduce the same plea in the form of objections at the
stage of execution. It is settled law that issues which were
required to be contested/agitated during the trial cannot be
re-opened or re-agitated in execution proceedings. The
Hon’ble Supreme Court in Periyammal (Dead) through
LRs and Ors. Vs. V. Rajamani and Anr.3 held that
“64. A harmonious reading of Section 47 with
Order XXI Rule 1 implies that questions relating to
right, title or interest in a decretal property must
be related to the execution, discharge or
satisfaction of the decree. The import of such a
reading of the provisions is that only matters
arising subsequent to the passing of the
decree can be determined by an executing
court under Section 47 and Order XXI Rule
101. Such reasoning is reinforced by the
decisions of this Court in C.F. Angadi v. Y.S.
Hirannayya reported in (1972) 1 SCC 191 and
Vasudev Dhanjibhai Modi v. Rajabhai Abdul
Rehman reported in (1970) 1 SCC 670, wherein it
has been held that while determining a question
under Section 47, an executing court cannot go
behind the decree and question the correctness
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3 2025 SCC OnLine SC 507
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of the same.
65. What flows from the position of law, as
aforestated, is that the issues that ought to
have been raised by the parties during the
adjudication of the original suit cannot be
determined by the executing court as such
adjudication may undermine the decree itself.
This Court in Rahul S. Shah v. Jinendra Kumar
Gandhi reported in (2021) 6 SCC 418 has held
that the benefit of Section 47 cannot be availed to
conduct a retrial causing failure of realisation of
fruits of the decree. The relevant portion of the
judgment is reproduced below:
“24. In respect of execution of a decree,
Section 47 CPC contemplates adjudication
of limited nature of issues relating to
execution i.e. discharge or satisfaction of
the decree and is aligned with the
consequential provisions of Order 21 CPC.
Section 47 is intended to prevent
multiplicity of suits. It simply lays down
the procedure and the form whereby the
court reaches a decision. For the
applicability of the section, two
essential requisites have to be kept in
mind. Firstly, the question must be the one
arising between the parties and secondly,
the dispute relates to the execution,
discharge or satisfaction of the decree.
Thus, the objective of Section 47 is to
prevent unwanted litigation and dipose of
all objections as expeditiously as possible.
25. These provisions contemplate that
for execution of decrees, executing
court must not go beyond the decree.
However, there is steady rise of
proceedings akin to a retrial at the time
of execution causing failure of
realisation of fruits of decree and relief
which the party seeks from the courts
despite there being a decree in their
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favour. Experience has shown that
various objections are filed before the
executing court and the decree-holder
is deprived of the fruits of the litigation
and the judgment-debtor, in abuse of
process of law, is allowed to benefit
from the subject-matter which he is
otherwise not entitled to.
26. The general practice prevailing in the
subordinate courts is that invariably in all
execution applications, the courts first
issue show-cause notice asking the
judgment- debtor as to why the decree
should not be executed as is given under
Order 21 Rule 22 for certain class of
cases. However, this is often misconstrued
as the beginning of a new trial. For
example, the judgment-debtor sometimes
misuses the provisions of Order 21 Rule 2
and Order 21 Rule 11 to set up an oral
plea, which invariably leaves no option with
the court but to record oral evidence which
may be frivolous. This drags the execution
proceedings indefinitely.
27. This is antithesis to the scheme of
the Civil Procedure Code, which
stipulates that in civil suit, all questions
and issues that may arise, must be
decided in one and the same trial. Order
1 and Order 2 which relate to parties to
suits and frame of suits with the object of
avoiding multiplicity of proceedings,
provides for joinder of parties and joinder
of cause of action so that common
questions of law and facts could be
decided at one go.”
(Emphasis supplied)
66. In the present case, the appellants have
pleaded in their plaint that the respondent Nos.
1 and 2 respectively were impleaded therein
as defendants as they were in possession of
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the suit property. However, the respondent
Nos. 1 and 2 chose not to contest the suit
despite being aware of the prayer of the
appellant for delivery of possession of the suit
properties. They could have filed a joint
written statement stating that they are
cultivating tenants at the stage of the original
suit itself, but rather raised the said issue in
the form of objections at the stage of
execution.
67. Furthermore, the respondent Nos. 1 and 2
failed to produce any documentary evidence as
regards their claim of being cultivating tenants,
even at the stage of their Section 47 application.
Instead, they filed for registration of their names in
the cultivation account of the suit property only in
2008 and prayed for retrospective inclusion of
their names from 1974. While the Revenue
authorities declined the retrospective inclusion of
the respondents’ names as cultivating tenants
from 1974, it allowed for their inclusion in the
cultivation account of the suit property starting
from 2008 onwards. The revenue authorities also
ordered for grant of certificate to the respondent
Nos. 1 and 2 certifying that they were in
possession of the suit property from 1974 on the
strength of the “no objection” provided by the
vendors.”
8. The dispute concerning the allotment, validity of
adoption and entitlement to mesne profits already stood
adjudicated in the original proceedings. The executing
court cannot re-examine or re-visit the issues as doing so
would undermine the decree itself. Any defence or plea
which ought to have been raised or established in the suit
cannot subsequently be introduced by way of objections in
execution.
9. Accordingly, the objections are found to be devoid of
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merit and are accordingly dismissed.
10. Ld. Counsel for the JD submits that the judgment and
decree dated 08.07.2025 has also been challenged in
appeal (RCA DJ No. 3/26).
11. Ld. Counsel for the DH submits that no stay order is
operating against the decree and requests for issuance of
warrants of attachment for recovery of mesne profits.
12. Upon filing of PF within a week, warrants of
attachment be issued qua the movable properties of JD for
the NDOH. The DH shall appear before the Ld. ACJ, for
appointment of bailiff on 16.03.2026. The warrants of
attachment shall be returnable on 08.04.2026. Concerned
SHO is directed to provide necessary police aid to the
bailiff.
13. DH is directed to ensure that there is no stay against
the order sought to be executed and DH shall file an
affidavit to this effect at the time of filing of PF.
(AYUSH SHARMA)
CIVIL JUDGE/EAST
KKD COURTS/25.02.2026
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