Executing Court is not entitled to collect evidence when sufficient evidence is already on record: The High Court of Jammu & Kashmir and Ladakh at Srinagar
It is settled in law that the Executing Court has to decide only questions with regard to execution, discharge and satisfaction of the decree and cannot go behind the decree for the purposes of executing the same. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh at Srinagar while adjudicating the case of Abdul Gaffar Dar v. Mohammad Shafi Khan and others. [CM(M) No.25/2019] which was decided upon by the single judge bench comprising Chief Justice Pankaj Mithal on 13th August 2021.
The facts of the case are as follows. The petitioner/ decree holder has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu & Kashmir so as to assail the order dated 11.07.2019 passed by the Executing Court directing the SDM, Chadoora, to submit report in respect of certain points and restraining the parties from changing the nature of the suit property or from excavating any soil or clay from it till the report is so filed by the SDM Chadoora.. It is admitted on record that the injunction decree passed by the trial court is final and conclusive. In execution proceedings, the judgment debtors have not filed any objections allegedly under Section 47 CPC so as to object its execution. The Executing Court, therefore, has finally passed an order on 23.04.2019 and subsequently an order dated 23.05.2019 directing SHO P/S Chadoora to implement the decree as well as its earlier dated 23.04.2019. It is in connection with these orders that the SHO had to detain the judgment debtors and in such scenario prima facie he may not have committed any dis-obedience of the order of the court subjecting him to contempt proceedings.
The court perused the facts and arguments presented. it was of the opinion that “Thus, in the facts and circumstances, narrated above, I am of the opinion that the Executing Court went beyond its jurisdiction in passing the impugned order to the detriment of the decree holder and, therefore, the order passed by him cannot be sustained in law. It is, accordingly, set aside with the direction that the respondents/ judgment debtors would not excavate any soil or clay from any land muchless the kahcharai land except from using his own proprietary land 19 kanals 4 marlas survey no.908/1 & 1302 situate at Nowbugh Tehsildar Chadoora District Budgam”