Order 7

Order Details: COPY OF ORDER
Pdf Text: 29 EX 187/25
ASH MOHAMMED Vs. MOHD ILLYAS
08.05.2026
Present: None for the DH.
Sh. Nishant Sharma, Ld. Counsel for the JD.
Put up for orders at 4:00 PM.
Pranat Kumar Joshi
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts,
Delhi/08.05.2026
At 4:00 PM.
Present: None.
Order on objections filed by JD
1. JD has moved the instant application under Section 47 of
the Code of Civil Procedure, 1908 (hereinafter ‘CPC’) seeking
dismissal of execution petition no. 187/2025.
2. JD would submit in his application that decree and
judgment dated 17.11.2025 was obtained by DH by playing fraud
upon the court and JD has challenged the same in appeal. He
would further submit that DH had no locus to file the suit and
estoppel could not have applied against JD in the suit
proceedings. JD also challenges the ownership of DH over the
suit property and submits that DH was merely a rent collecting
agent for one Mr. Chand Mohd. He would further submit that
decree obtained by fraud is a nullity, hence, instant execution
petition must be dismissed.
3. Ld. Counsel appearing on behalf of JD would submit that
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there was contradiction between the statement of DH made in
plaint and the one made during cross-examination. Ld. Counsel
would further argue that as an agent DH could not have sued for
possession and Section 116 Indian Evidence Act has no
application on such factual scenario. Ld. Counsel would further
submit that the relationship of landlord and tenant was never
established between the parties.
4. Per Contra, Ld. Counsel for DH directly argued upon the
application. Ld. Counsel for DH would submit that all the
arguments being made in the present application were raised
before Ld. Trial Court which had dealt with all these contentions.
Ld. Counsel would further submit that the fallacy of arguments
raised by JD would be exposed by reading the judgment. Ld.
Counsel for DH would further submit that the executing court
cannot go behind the decree and the questions already raised and
settled by trial court should not be revisited by executing court.
5. I have heard the rival contentions and bestowed my
anxious consideration to the material placed on record.
6. The law regarding Section 47 is clear. The mandate of
Section 47 CPC is that executing court must decide all objections
regarding the decree and no fresh suit is permissible for the same.
However, the jurisprudence which developed regulates the
unfettered exercise of powers of executing court. It is no longer
res integra that an executing court can neither travel behind the
decree nor sit in appeal over the same or pass any order
jeopardising the rights of the parties thereunder. It is only in the
limited cases where the decree is by a court lacking inherent
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jurisdiction or is a nullity that the same is rendered non est and is
thus unexecutable.
7. Let us now advert to the facts of the case. The judgment
dated 17.11.2025 has clearly dealt with the above-mentioned
objections raised by JD. As a defendant therein, JD had stepped
into the witness box and even before trial court his defence was
to deny the ownership of the DH (plaintiff therein) and assert that
the owner of suit property was one Mr. Chand Mohd. The
judgment clearly mentions in paragraph no. 19 that JD had
admitted paying rent to DH after 1998 and had also admitted the
rent receipts. Thus, it is established beyond doubt that all the
objections raised herein have been comprehensively dealt with
by the Ld. Trial Court. In my considered opinion, reagitating
same grounds before executing court is not permissible because it
falls outside the limited mandate of this court. This court cannot
go behind the decree and has to satisfy the same unless apparent
lack of inherent jurisdiction is shown.
8. In view of the above, the instant application is dismissed.
No order as to costs.
9. Matter be listed for further proceedings on 04.07.2026.
Pranat Kumar Joshi
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts,
Delhi/08.05.2026
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