1. The judgment debtor in a decree for mandatory injunction passed against him contends that the decree is inexecutable on the ground that the decree schedule property is incapable of identification. The said contention is raised despite suffering concurrent findings against him and the Special Leave Petition to Appeal before the Supreme Court having been dismissed. In such circumstances, when the petitioner seeks to reopen the issues which stand concluded by virtue of the binding adjudications rendered by the competent courts, this Court is constrained to subject the conduct of the petitioner to close judicial scrutiny while examining the merits of the contentions urged in the Original Petition.

2. Brief facts for the disposal of the original petition are as follows:

O.S No.1426/2013 on the file of the I Additional Munsiff’s Court, Ernakulam, was filed by the respondents/plaintiffs seeking a permanent prohibitory as well as mandatory injunction to remove the illegal constructions done over plaint B and C schedule properties. The question that fell for consideration before the trial court was whether the suit was maintainable, because essentially the grievance of the plaintiffs was whether the complaint regarding violation of the Building Rules could be entertained by the civil court. After a full-fledged trial, placing reliance on the two commission reports, Exts.C2 and C3 marked before the trial court, the court concluded that the construction made by the defendant beneath the canopy area (plaint C schedule property) is 73.27 square meters, whereas he was permitted to construct only 29.27 square meters as per the corporation permit and the excess area of illegal construction is 34.86 square meters. Ext.C2(a) sketch further clarifies the kind of illegal construction and encroachment effected by the defendant. This fact is further proved by the report of the expert engineer appended along with Ext.C2 report. With the material evidence on record, when the trial court analyzed the respective rights of the parties under Ext.A2 deed produced at the trial stage, inevitably it was held that what conferred was only an undivided share of 29.27 square meters on the second floor and hence, the defendant cannot act against the terms of Ext.A2. Resultantly, the suit was decreed directing the defendant to demolish and remove plaint B and C Schedule properties within a period of one month, failing which appropriate actions could be pursued by the plaintiffs. Before the appellate court it was contended by the petitioner/defendant that the suit itself is not maintainable and that the claim for mandatory injunction is time barred. Rejecting these contentions, the first appellate court held that the construction beyond the permitted extent of 29.27 square meters, namely 34.86 square meters, was illegal. This finding was supported by Exts.C3 and C3(a), as well as Ext.A5 order issued by the Deputy Director, LSGD (RV Section), which clearly showed that the defendant had violated the Building Rules. Ext.A4 letter also evidences the said fact. With these materials on record, the first appellate court rendered the findings in favour of the plaintiffs and dismissed the appeal. The matter was carried further before this Court in RSA No.6/25. By judgment dated 17.6.2025, this Court considered the question of maintainability and other contentions, including the question touching upon the extent of construction made by the petitioner/judgment debtor, and it was held that any construction beyond 29.27 square meters is impermissible. Aggrieved, the petitioner preferred SLP(C) No.21111/2025 before the Supreme Court which was dismissed by order dated 8.8.2025. Thus, the concurrent decrees became final. After the dismissal of the special leave petition, the execution petition, which had been closed in view of the interim stay granted by the first appellate court in AS No.109/22, was revived at the instance of the decree holders. Accordingly, notice was issued to the judgment debtor who appeared and raised a preliminary objection regarding the executability of the decree on the ground that the plaint schedule property is unidentifiable and therefore the decree is inexecutable. In view of the contention, the executing court directed the back records to be put up before it. On perusal of the back records, the executing court found that Ext.C2 report and Ext.C2(a) plan cover the issue and that since Exts.C2 report and C2(a) plan were granted approval by all courts, including the High Court, the judgment debtor cannot raise a question regarding the executability of the decree and accordingly directed execution of the decree in terms of Exts.C2 report and C2(a) plan. This order is challenged on multiple grounds, including the power of the executing court, to go behind the screen and investigate the extent of unauthorized construction.

3. Heard Sri.M.P.Ramnath, the learned counsel appearing for the petitioner/judgment debtor, and Sri.S.Sreekumar, the learned Senior Counsel appearing for the respondents/decree holders, assisted by Sri.Martin Jose.

4. Sri.M.P.Ramnath, the learned counsel appearing for the petitioner, challenged the sustainability of the impugned order passed by the executing court primarily on the ground that the executing court could not have gone behind the decree. According to the learned counsel, plaint B schedule property that is sought to be demolished is only an extent of 16 square meters. Therefore, the attempt made by the executing court to annex Ext.C2(a) plan along with the decree is impermissible since there was no order by the courts to annex Ext.C2(a) plan along with the decree. The attempt made by the executing court to enlarge the scope of the decree cannot be appreciated, is what the petitioner contends. In support of his contention, the learned counsel placed reliance on the decision of this Court in Sumathykutty Amma v. Sumangala Devi and Others [2009 (3) KHC 653] and Deepa Bhargava v. Mahesh Bhargava [(2009) 2 SCC 294]. He further pointed out that the attempt made by the executing court is beyond its powers under Section 47 of the Code of Civil Procedure.

5. Per contra, Sri.S.Sreekumar, the learned Senior Counsel appearing for the plaintiffs, took strong exception to the maintainability of the original petition. According to the learned Senior Counsel, the petitioner being a lawyer of this bar, could not have withheld the concurrent judgments rendered against him by filing the original petition. According to the learned Senior Counsel, the judgment of the first appellate court and the judgment of this court in RSA No.6/25 clearly show the extent of illegal construction made by the petitioner. The non-production of the judgments is intended to mislead this court. Referring to paragraph 17 of the judgment of this court in RSA No.6/2025, the learned Senior Counsel pointed out that this Court has categorically held that any construction beyond 29.27 square meters is impermissible and it is unauthorised. Therefore, when there is evidence to show that the extent of construction made beyond the permissible limit, i.e. 34.86 square meters, the contention raised regarding the inexecutability of the decree cannot be appreciated.

6. I have considered the rival submissions raised across the bar and perused the impugned order.

7. Before examining the rival contentions urged in the present Original Petition, this Court cannot but take note of the fact that the petitioner has consciously chosen not to produce the judgments rendered by the trial court, the first appellate court, and this Court in the second appeal, notwithstanding the fact that the contentions raised are inextricably connected with the findings recorded in those judgments. To test the correctness of the contentions urged, this Court was constrained to call for the Judge’s Papers in R.S.A. No. 6 of 2025.

8. To resolve the issue raised in the Original Petition, this Court needs to answer the following questions:

                  (a) Can the petitioner be permitted to raise the plea of inexecutability of the decree?

                  (b) Effect of the findings rendered by the trial court as well as the appellate court and this Court qua the decree.

                  (c) Whether notice under Order XXI Rule 32 of the CPC is required?

                  (d) Whether the procedure adopted by the executing court is sustainable?

                  (a) & (b) Question regarding the executability of the decree and the Effect of the findings in the suit, appeal and the second appeal.

9. The first two questions can be considered together since they are intrinsically connected. The principal contention advanced by the petitioner is that the decree is inexecutable on the ground that it does not state with precision the exact extent of the unauthorised construction liable to be demolished. This contention is urged notwithstanding the fact that the judgment and decree have attained finality upon their affirmation by this Court and the subsequent dismissal of the Special Leave Petition by the Supreme Court. The submission, therefore, cannot be examined in isolation but must necessarily be appreciated in the context of the findings rendered by the courts below, including this court which have attained finality.

10. The decree unequivocally directs the removal of all unauthorised constructions put up beyond the permissible extent of 29.27 square meters comprised in the B Schedule property. It is true that, at the time of institution of the suit, the plaint referred to the unauthorised construction beyond 29.27 square meters as measuring 16 square meters. However, such description cannot be viewed dissected from the issues that actually arose for adjudication before the trial court. The parties entered into trial with full knowledge of the controversy in issue, namely, whether the defendant was legally entitled to effect construction in excess of the sanctioned extent of 29.27 square meters. The dispute was thus not confined to the descriptive particulars contained in the plaint schedule but extended to the legality of the construction undertaken by the petitioner vis-à-vis the approved building plan and the applicable statutory prescriptions.

11. The sanctioned plan itself became the subject matter of scrutiny of the courts below. On every aspect, there exists complete concurrence amongst the statutory authorities as well as the courts that the petitioner had no legal entitlement whatsoever to construct beyond the permissible extent of 29.27 square meters. The petitioner was fully conscious of the proceedings initiated against him by the Kochi Municipal Corporation, wherein the competent authority had specifically found that the unauthorised construction measured 34.86 square meters is in excess of the sanctioned extent.

12. Given the tenacity with which the learned counsel for the petitioner has raised the issue of executability, this court feels it appropriate to consider the nature of the findings rendered by the trial court and the appellate court and this Court in the Second Appeal.

13. The specific contention advanced by the petitioner is that the alleged construction beyond 29.27 square meters must be confined only to an extent of 16 square meters as described in the B Schedule appended to the decree, and that any alleged unauthorised construction beyond the said extent cannot be brought within the purview of the execution proceedings. To test this contention, the executing court directed the production of the back records for its perusal and consideration. The petitioner takes serious exception to the procedure adopted by the executing court, contending that such a course was impermissible in law.

14. At first blush, the above argument may find appealing. However, on a close exploration of the facts leading to the passing of the judgment in RSA No.6/2025, it can be seen that the contention is totally misplaced. It is in this context that the conduct of the petitioner requires a deeper scrutiny. The non-production of the concurrent judgments rendered against him, including the one rendered by this Court, must be taken seriously.

15. A reading of the judgments rendered by the trial court, the first appellate court and that of this Court shows that the petitioner was fully aware throughout the proceedings about the precise nature, extent, and location of the unauthorised construction attributed to him. The findings rendered by the competent courts were after due consideration of the pleadings and evidence on record, and the same have attained finality. In such circumstances, the petitioner cannot be permitted to reopen the issues which already stood conclusively determined, by raising a fresh objection at the stage of execution. For the sake of convenience, this Court feels it appropriate to extract the findings of the appellate court in paragraphs 14, 15 and 16 of the judgment, which was impugned before this Court in RSA No.6/2025.

                  “14. Ext.A3 is the award of Lok Adalath. It shows that compromise statement filed herewith and award passed in terms of compromise. The compromise shall form part of the award. Ext.A4 is the letter given by the Deputy Secretary LSGD (RB Section), Trivandrum. It shows that the appellant has constructed illegal construction over his building which situates in Sy.No.1985/3 of Kanayannur Village, Kochi Corporation and he has been directed to demolish the illegal construction and the demolition has to be informed to the Government. Ext.A5 is another letter issued by the Deputy Secretary LSGD (RB Section). It shows that the appellant has violated the Building Rules and made illegal construction.

                  15, Ext.B1 is the written statement with counter claim in 0S.No0.603/2011. Ext.B2 is the postal receipt with respect to the review petition filed by the appellant dated 01.04.2022. Ext.B3 is the award of 0.8 603/2011 which shows that they have settled the matter. On perusing Advocate Commission Report it can be seen that the plaint C schedule property is the terrace of the plaint B schedule property. It has the same floor area as that of the other floors of the building on the plaint A schedule property with a three-foot wall all around and on that wall and at the same length there were Aluminum fabricated glass windows. The roof was made of Aluminum roofing sheets. On the northern side of the building of the plaint A schedule property there was a stair case. The stair case ends at the top most portion of the building and it was locked with an iron gate. At the south west end of the terrace, a cabin was made with plywood. It has a door and glass windows. At the north east end of the terrace there was a toilet with plastic door and concrete walls. Ext.C2 and C2(a) also show the same facts. Ext.C3 and C3(a) is the Inspection Report of the Executive Engineer who has assisted the Advocate Commissioner. It shows that there are 8 RGC Columns for the plaint schedule building. The structural support of the whole building is through 8 columns, beams and slabs connecting it. The case of the respondents is that after passing Ext.A3 award the appellant enclosed the terrace portion of the 2™ floor beneath the canopy with iron grills and sheets and also put up an iron door blocking the entrance to the terrace on the top of 2™ floor which is scheduled as the C schedule. The respondents have admitted that they have given permission to the appellant to construct canopy and whatever other constructions made beyond the permission given was illegal. The available facts suggest that the appellant has made constructions beyond the given permission.

                  16. The another contention raised by the learned counsel of the appellant is that the appellant has constructed the 2™ floor as per the approved plan. The O.S 603/2013 which was filed by the appellant to recover the amount borrowed by the deceased and in the said suit the respondents have filed counter claim. In the Ext.B1 counter claim the respondents have admitted that the construction is over and appellant took possession of the 2™ floor and as well as the 3 floor of the building. The case of the appellant is that the respondents are estopped from contending otherwise than as admitted in Ext.B1 counter claim. The construction made by the appellant beneath the canopy area in plaint G schedule property is 73.27 Sg.Mtr. As per the available facts there is illegal construction in plaint B schedule which is over and above the area of 29.27 square meter as per the Corporation permit work out to 34.86 square meters. Ext.  C2(a) sketch further shows the illegal construction  and encroachment effecied by  the appellant in the 2nd floor of the building. As per C2(a) sketch construction made by the appellant beneath the canopy area as 73.27 sq.Mtrs.  The available documents and evidence suggest that the appellant has  made illegal construction  for  which the respondents have not given any permission nor it is permissible  as per  the rules.  In  the said circumstances the appeal filed by the appellant has no merit and is liable to be dismissed. No interference is called for. The issues are answered accordingly.”

16. Turning to the judgment of this Court in RSA No.6/2025, in paragraph No.17, this Court specifically dealt with the contention of the petitioner as to whether he is permitted to construct over and above 29.27 square meters. Paragraphs 17 and 18 of the judgment are extracted hereunder:

                  “17. There cannot be a doubt, that question as regards the construction of a document will qualify itself as a substantial question of law. A deeper analysis of Sale deed (Ext.A2) is required to be done, in order to find as to whether, the predecessor of the plaintiffs had transferred any absolute right over the plaint schedule properties to the defendant. The schedule to Ext.A2 reads as under:-

                  “1/3rd of impartible undivided share in the land having an extent of 1.31 Ares equivalent to 3.140 Cents comprised in Sy.No.1989/3 in Ernakulam Village obtained by the Vendor by virtue of Settlement Deed No.2627/72 registered at SRO, Ernakulam and to complete the second floor of the building having a super built up area of 29.27 Meter Square with sunshade, staircase and canopy over the " roof of the second floor of the building and to use the common areas and all rights.”

                  Still further, the intention of the parties as gathered from the reading of Ext.A2 would show that what is intended to be transferred in only an undivided impartible share over 1.31 Ares of land in Survey No.1989/3. The relevant portion of Ext.A2 is extracted as under:-

                  “AND WHEREAS the Vendor has agreed to sell and relying on the aforesaid assurance of the Vendor, the Purchaser has agreed to purchase 1/3 impartible undivided share in 1.31 Ares equivalent to 3.140 Cents in Sy.No.1989/3 in Ernakulam Village and to construct second floor with staircase and canopy on the third floor in Ernakulam Village together with all improvements in the property for a total sale consideration of Rs.4,10,000/- (Rupees Four Lakhs Ten Thousand Only.

                  NOW THIS DEED WITNESS as follows: In pursuance of the said agreement and in consideration of a sum of Rs. 4,10,000/-(Rupees Four Lakhs Ten Thousand Only) paid by the Purchaser to the Vendor, the receipt of which the Vendor hereby admits and acknowledges, the entire Sale consideration thus FULLY SATISFIED, the Vendor does hereby transfer, convey, assign and deliver possession of 1/3rd undivided share in the landed property and to complete 29.27 Meter Square on the second floor of the building with sunshade and incidental constructions and use common areas unto the Purchaser by way of absolute sale all estate, right, title, interest, claims and privileges in the second floor more particularly described in the schedule hereunder, together with all improvements thereon all easements and other similar rights appurtenant thereto and together with the benefits of all covenants and indemnities to which the Vendor is entitled to in respect thereof AND TO HAVE AND TO HOLD the said undivided share in the property with all improvements thereon unto and to the use of the Purchaser absolutely and forever with exclusive title, possession and enjoyment. The Vendor hereby agree with the Purchaser to complete second floor of the building by collecting men and materials in the open premises around the building without any hindrance or interruption from the Vendor and the Vendor shall in no way interfere with the right of the Purchaser for construction.”

                  18. Read as may, this Court could not find any clause conferring absolute right title and interest in favour of the defendant to do such activities beyond the permissible limit of 29.27 Sq.Mtrs. on the second floor. At any rate, construction beyond the second floor is completely prohibited inasmuch as the defendant derived right title and interest over 1/3rd undivided share of the property with right to construct building to an extent of 29.27 Sq.mtrs alone. Therefore, the argument of learned Senior Counsel for the appellant that going by Ext.A2, the defendant has absolute right over the entire second floor of the building cannot be appreciated under any circumstances. Equally so, this Court is also not impressed by the argument of the learned Senior Counsel that the fact that drawings in approved plan shows the entire second floor and hence the appellant is entitled to construct the entire floor. The appellant cannot raise such an argument contrary to the condition specified in the sale deed. Therefore, the trial court and the first appellate court have properly construed Ext.A2 and arrived at a right conclusion. Accordingly, the question of law is answered against the appellant.”

17. Thus, the petitioner very well knew that 34.86 square meters is the unauthorised construction made by him, which has been clearly spelled out in the proceedings before the courts below and the findings rendered against him. In such circumstances, this Court is of the view that the petitioner cannot raise the contention that any construction beyond 16 square meters found under B schedule cannot be touched in execution of the decree. One must remember that, as against the findings of unauthorised construction by the officials of the Corporation, the petitioner had invoked his remedy under the provisions of the Kerala Municipalities Act, 1994 by preferring an appeal before the Tribunal for Local Self Government Institutions and the same was unequivocally withdrawn. Therefore, as on today, the unauthorised construction made by the petitioner stands at 34.86 square meters. The contention to the contrary is liable to be rejected.

18. Another aspect of the matter which requires to be taken note of is that the petitioner had assailed the judgment rendered in RSA No.6/2025 before the Supreme Court of India, wherein he had specifically questioned the executability of the decree. Pursuant to the request made by this Court, Sri.Ramnath, the learned counsel for the petitioner, made available a copy of the Special Leave Petition preferred by the petitioner before the Supreme Court. A cursory reading of paragraph 5.1 under the heading "Grounds" in the said Special Leave Petition unmistakably discloses that a specific ground was taken to the effect that, the finding regarding the alleged unauthorised construction measuring 34.86 sq. meters is manifestly erroneous, it being humanly impossible to erect a structure of such dimensions on the second floor of the subject property. The aforesaid contention, which bears directly upon the question of the executability of the decree, had thus already been projected before the Supreme Court. For reference, paragraph 5.1 of the Special Leave Petition is extracted hereinbelow:

                  “Para 5.1. It is submitted that as per respondents herein/plaintiffs, the ground and 1st floor have an approved sanction for 45.34 meter square each while the 2nd floor belonging to the petitioner herein has an approved area of 29.27 square metre only. As is clear from the 3rd commission report dated 28.05.2019 in IA No. 3965 of 2018 in OS No. 1426 of 2013 of the Munsiff’s Court, Ernakulam, the structural support of the whole building is through eight RCC columns and the beams and slabs connecting it. Admittedly, there is no aerial violation on the 2nd floor and all floors are of the same size (as is also clear from the photographs of the entire building produced by the petitioner herein as additional documents. If that be so, the finding of the advocate commissioner in his second report dated 31.05.2018 (on the basis of which the courts below have directed to demolish the 2nd floor of the petitioner herein), that the second floor has a total area of 80.22 sq. m. and an illegal construction of 34.86 sq. m. is erroneous, unsustainable and illogical as it is humanly impossible to build a structure of that size in second floor of the present plot without aerial violations, especially when all floors are of the same size. The maximum area of the 2nd floor could have only been 45.34 metre square only i.e. the same size as that of ground and first floors. An alternative situation would be that all the floors (i.e. including ground and first floors) are 80.22. sq. m., in which case the ground and the first floor belonging the respondents herein/plaintiffs are nothing but illegal and unauthorized constructions and the same are also liable to be demolished. However, even the same cannot be possible as such a building cannot be built on the ground floor of a plot with a size of 3.140 cents. The only other alternative available is the proper conclusion that the 2nd Advocate Commissioner along with the alleged export submitted an erroneous report with an erroneous plan, leading to the erroneous impugned judgment.”

                  Further, in para 5.8. a specific ground is raised regarding the vagueness or improper identification of the plaint B Schedule property by the Advocate Commissioner. Para 5.8 reads as under:

                  “Para 5.8- It is submitted that the High Court failed to consider that the Plaint B Schedule property is vague and not properly identified by the Advocate Commissioner. As per the respondents, the petitioner herein could construct only 29.27 sq. m. in the 2nd floor but he constructed more. However, when the building plan itself is not on record and when the respondents had not described the location of the unauthorized construction in the B schedule of the plaint, it is a mystery as to how the advocate commissioner and expert engineer prepared a sketch of the alleged unauthorized construction. The said identification by the Advocate Commissioner is a mere guess work as the 29.27 sq. m. could have been anywhere in the entire 2nd floor. The basic document to demarcate the same was never brought on record by the respondents herein/plaintiffs. It is also submitted that the suit could have been decreed only on the strength of the pleadings and evidence produced by the respondents herein/plaintiffs and not on any lapse on the part of the petitioner herein/respondents. However, the courts below failed to even follow this basic principle of evidence and burden of proof.”

19. Thus, when the issue that fell for consideration before all the courts, including the Supreme Court, was whether the petitioner had put up any unauthorised construction beyond the sanctioned extent, and the said question having been answered against the petitioner on the basis of the materials placed on record, there is no justification in permitting the petitioner to reagitate the very same issue under the guise of challenging the executability of the decree. The contention advanced in this regard is, therefore, rejected.

(c) Whether fresh notice under Order XXI Rule 32 CPC is required?

20. An incidental issue which requires to be addressed by this court is whether notice under Order XXI Rule 32 is required to be issued to the petitioner. The contention raised by the petitioner is that the petitioner has not been issued with a notice under Order XXI Rule 32 by the executing court. Order XXI Rule 32 reads as under :

                  “ORDER XXI- Execution of Decrees and Orders,

                  Payment under Decree

                  xxx xxx xxx

                  32. Decree for specific performance for restitution of conjugal rights, or for an injunction.—

                  (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced 1[in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both.

                  (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.

                  (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

                  (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of 2[six months] from the date of the attachment no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

                  (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

                  Explanation.—For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.”

                  It is pertinent to note that the execution petition was instituted in the year 2022, in which a notice was ordered and the judgment debtor entered appearance. At that stage, in view of the interim order of stay granted by the first appellate court, the execution proceedings were closed, granting liberty to the decree holders to seek revival of the execution petition upon final adjudication of the appeal. The question that arises for consideration is whether the non-issuance of a fresh notice under Order XXI Rule 32 of the Code of Civil Procedure would vitiate or adversely affect the rights of the judgment debtor in proceeding with the execution. This Court is unable to accept the said contention for the reason that the execution proceedings were not dismissed or terminated on merits, but were merely closed with an express liberty reserved to the decree holders to revive the same after conclusion of the appellate proceedings. Therefore, once the execution petition stood revived upon the decree attaining finality, the judgment debtor cannot insist upon issuance of a fresh notice under Order XXI Rule 32 as a condition precedent for continuation of the execution proceedings. At best, what is required is an intimation regarding the revival and restoration of the execution proceedings.

21. The petitioner was fully aware that upon dismissal of RSA No.6/2025 and the subsequent dismissal of the Special Leave Petition before the Hon’ble Supreme Court, the decree had attained finality and that he was under a binding obligation to comply with the mandatory injunction granted by the trial court and affirmed by the superior courts.

22. The object and purpose of issuance of notice under Order XXI Rule 32 of the Code is to afford an opportunity to the judgment debtor before coercive measures, such as detention in civil prison or attachment of property, are resorted to for enforcement of a decree for specific performance, restitution of conjugal rights, or an injunction. Such notice cannot be construed as creating a fresh opportunity to the judgment debtor to avoid compliance with a decree which has already attained finality.

23. In the present case, the decree directing removal of unauthorised construction was upheld by this Court in the second appeal, and the challenge thereto before the Hon’ble Supreme Court also failed. In such circumstances, the contention of the judgment debtor that he must once again be served with a notice under Order XXI Rule 32 before being required to comply with the decree is devoid of merit. The requirement of notice under the said provision would arise only when the decree holder seeks to invoke the punitive measures contemplated under Order XXI Rule 32 upon the failure of the judgment debtor to obey the decree. In other words, Order XXI Rule 32 does not contemplate issuance of a separate notice calling upon the judgment debtor to comply with the substantive directions contained in a decree for mandatory injunction, which has already been affirmed by the appellate forums. The decree, upon attaining finality, becomes enforceable, and the obligations flowing therefrom are required to be complied with forthwith, subject only to any further proceedings available in law.

24. That apart, on dismissal of RSA No.6/2025 on 17.06.2025, the petitioner was obliged to comply with the mandatory injunction under the decree. In any event, upon dismissal of the Special Leave Petition on 08.08.2025, there remained no impediment whatsoever to the enforcement of the decree. Therefore, this Court is of the considered view that the objection raised by the petitioner that in the absence of a fresh notice under Order XXI Rule 32 of the Code of Civil Procedure, the execution proceedings cannot be proceeded with, is legally untenable and is accordingly rejected.

(d) Whether the procedure adopted by the executing court is proper?

25. This question assumes significance since according to the petitioner, there exists a serious discrepancy in the decree, which according to the petitioner renders the decree inexecutable. B and C schedules of the decree read as under:

                  “PLAINT B SCHEDULE

                  All those piece and parcel of unauthorized construction made by the defendant in the 2™ floor of the building in the plaint A schedule over and above 29.27 meter square having total area of 16 meter square and also the canopy over the same.

                

                  All those piece and parcel of unauthorized construction of iron grills and sheets on the top of the 2™ floor beneath the canopy enclosing the terrace portion and also the iron door put blocking passage to the top of the 2™ floor with all rights and improvements therein.

                 

                  True, the plaintiffs have shown the extent of unauthorised construction as 16 square meters. This Court has already found that the petitioner was aware of the nature of unauthorised construction made by him on the second floor. It is beyond cavil that the trial court had accepted Exts.C2(a) and C3(a) plans. Merely because the trial court failed to append the plans along with the decree is no ground to avoid the decree and the petitioner cannot take advantage of the same.

26. However, what is contended before this Court is that executability of a decree can be questioned by the judgment debtor by invoking the jurisdiction under Section 47 of the Code of Civil Procedure and that the executing court cannot go beyond the decree.

27. True, the scope of enquiry under Section 47 CPC by an executing court is limited and circumscribed. A reading of the provision indicates that an executing court may entertain an objection as to the executability of a decree only in exceptional circumstances, such as where the decree is a nullity, void ab initio, or incapable of execution in law either on account of the decree having been passed in disregard of a statutory prohibition or due to a subsequent change in law rendering the decree inexecutable.

28. Though Section 47 confers jurisdiction upon the executing court to determine all questions relating to execution, discharge, or satisfaction of a decree, such jurisdiction is subject to the limitations prescribed under the Code, including the restrictions contained in Order XXI Rule 2 and sub-rule (3) thereof. Therefore, the general power conferred under Section 47 must yield to the extent of the special provisions governing execution proceedings. An objection as to the executability of a decree cannot be permitted to be raised repeatedly and must be taken at the earliest available opportunity.

29. The contention advanced before this Court is that the executing court has exceeded its jurisdiction by going beyond the decree. Though the settled principle of law is that an executing court cannot go beyond the decree, the said principle does not prohibit the executing court from interpreting the decree for the purpose of understanding its true scope and effect. In order to ascertain the actual import of the decree, the executing court is entitled to examine the pleadings, the reliefs claimed in the suit, and the reasoning contained in the judgment which culminated in the decree. Otherwise, the expression "all questions arising between the parties" occurring in Section 47 CPC would be rendered meaningless.

30. The expression "all questions arising" must necessarily include all questions which properly arise in relation to execution, discharge, or satisfaction of the decree and which arise between the parties to the suit or their representatives. Though the general rule remains that an executing court cannot travel beyond the decree, there are recognised exceptions where the executing court may refuse to execute the decree in the form presented, particularly when clarification of the decree becomes necessary for its effective implementation.

31. In Bhavan Vaja v. Solanki Hanuji Khodaji Mansang [(1973) 2 SCC 40], the Hon’ble Supreme Court held that an executing court is entitled to examine the proceedings leading to the decree to ascertain its true meaning and, if necessary, construe the decree in a manner that gives effect to the intention of the court which passed it.

32. That apart, the power of the executing court under Section 47 of the Code of Civil Procedure, 1908 does not enable the judgment debtor to raise objections which were available to him during the original proceedings. The jurisdiction under Section 47 cannot be invoked as a substitute for an appeal or as a means to reopen issues which have already attained finality. A judgment debtor cannot, under the guise of questioning executability, seek a reconsideration of matters which stood adjudicated by the competent courts.

33. The principle that an executing court cannot go behind the decree must be understood in the context of the facts of each case. The restriction applies to cases where the executing court is called upon to examine the correctness, legality, or merits of the decree or to determine whether such a decree ought to have been passed. However, where the question relates to ascertaining the true scope, identity, or effect of the decree, the executing court is empowered to examine the relevant materials and attendant circumstances.

34. In the present case, it is an admitted position that, at the time of institution of the suit, the extent of unauthorised construction was 16 square meters, whereas during the course of trial, the evidence established that the actual extent of unauthorised construction was 34.86 square meters. The failure to incorporate the entire extent in the decree, despite the findings rendered by the trial court, can only be treated as an accidental omission or clerical error. Such an omission cannot be permitted to defeat the substantive rights declared by a competent court.

35. That apart, the defect being one arising from an inadvertent omission in the court record, the same is capable of being corrected in exercise of the powers under Sections 152 and 47 of the Code of Civil Procedure. The determination of the precise description and extent of the decretal property is undoubtedly a question relating to execution, discharge, and satisfaction of the decree within the meaning of Section 47 CPC. No party can be permitted to frustrate or render ineffective a decree passed by a competent court merely because of an accidental slip or omission occurring in the drafting or preparation of the decree.

36. In Pratibha Singh & Anr. v. Shanti Devi Prasad & Anr. [(2003) 2 SCC 330], the Hon’ble Supreme Court held that a decree passed by a competent court should not, as far as possible, be allowed to be defeated on account of an accidental slip or omission. The Court recognised that in appropriate cases, the executing court can invoke the jurisdiction under Section 47 CPC to ensure that the decree is effectively implemented and that the intention of the court which passed the decree is not frustrated by a technical defect.

37. Applying the aforesaid principles to the facts of the present case, this Court is of the considered view that the petitioner/judgment debtor was fully conscious of the nature and extent of the unauthorised construction attributed to him. The concurrent findings rendered by the trial court, the first appellate court, this Court, and the Hon’ble Supreme Court clearly establish that the extent of unauthorised construction beyond 29.27 square meters was, in fact, 34.86 square meters. In such circumstances, it is impermissible for the petitioner, at the stage of execution, to contend that the decree is confined only to an extent of 16 square meters. Further, on a careful scrutiny of the findings recorded by the executing court in the impugned order, this Court finds that the executing court was fully justified in examining the attendant circumstances and in rectifying the accidental omission committed in not appending Ext.C2(a) plan along with the decree. The approach adopted by the executing court is consistent with the principles laid down by the Hon’ble Supreme Court in Pratibha Singh (supra). Therefore, the contention of the petitioner that the executing court has exceeded its jurisdiction by going behind the decree is wholly misconceived and cannot be accepted in the facts and circumstances of the present case.

38. In view of the foregoing discussion, this Court is constrained to observe that the conduct of the petitioner does not inspire confidence. The petitioner was fully conscious of the legal consequences arising from the concurrent findings of fact and the decrees passed against him. Despite the same, he chose to pursue further proceedings by raising an untenable objection as to the alleged inexecutable nature of the decree, thereby necessitating the institution of the present original petition. Ideally, this Court should have imposed exemplary cost on the petitioner for the extent of suppression made in this Original Petition. But, considering the fact that the petitioner is a member of this bar, this Court feels that a certain amount of latitude can be extended to him. Hence, this Court deems it appropriate not to impose any costs.

39. For the reasons discussed hereinabove, this Court is of the considered view that the petitioner has failed to establish the existence of any jurisdictional error, material irregularity or any other infirmity warranting correction in exercise of the power under Article 227 of the Constitution of India. The Original Petition, being wholly bereft of merit, stands dismissed. Consequently, the interim order stands vacated. The executing court is free to proceed with the execution and take it to a logical conclusion.