1. The facts of this case are that the respondent was a plaintiff in a case in which the appellant was defendant regarding a number of bamboo clumps and the land on which they stood. The matter was referred to arbitration and a compromise arrived at outside the Court, whereby it was declared that the defendant consented to a decree with regard to the lands in suit, the boundaries whereof are given in the registered deed of sale dated the 15th Bhadon 1315 F.S It was further stated in the petition of compromise that there was no necessity for any delivery of possession but that if the plaintiff did take out delivery he should pay the costs thereof. A decree was made upon the basis of this compromise and on 22nd September, 1915 an application was made for execution. After various orders of the Court indicating that care was taken to bring the application for execution into agreement with the decree, an order was made on 5th October, 1915 that delivery of possession be made and on 10th January, 1916 it was written: “Possession delivered. No objection raised, ordered that the case be dismissed.” On 25th July the judgment-debtor appeared in Court with an objection to the proceedings saying that delivery of possession had been made by the Court officer behind his back, and that under cover of it the decree-holder had three days before his petition trespassed upon land not covered by the petition of compromise. He further alleged that two clumps only had been awarded to the decree-holder and that under the terms of the compromise, delivery of possession was declared to be unnecessary. He therefore suggested that the execution proceedings were illegal and void, ultra vires, etc., and asked that they be entirely cancelled. On the case coming up before the learned Munsif he regarded the application as one under Section 151 of the CPC, and said:
“I am afraid the applicant cannot have equity on his side now. When he left his opportune moment to seek relief the Court cannot go behind the decree. On the other hand the decree-holder does not seem to have acted on bona fide grounds when he was given the khata No. 7 of the property in question he should have given the survey plot as well, but which he has not. However the applicant should seek redress in the Court of law by the regular suit. Under the circumstances of the case the application is dismissed and the parties bear their own costs.”
2. This order was taken in appeal to the District Court. The appeal was dismissed on the ground that it was not a proceeding under Section 47 of the CPC. In support of this view the argument advanced was that when the execution proceedings are no longer pending but are closed the Court has completely discharged its duty. It was suggested that the judgment-debtor having wasted ten months before coming to Court had put himself outside the sympathy of the Court. The learned Judge adds:
“The boundaries given in the decree are a little ambiguous in places and the judgment-debtor probably wants to take advantage of that now to dispute what land was actually given by the decree. I cannot believe that the insertion of the khata number together with the touzi number could have misled any one when the land was fully described in the execution proceedings, or that if this mistake could conceivably be made the judgment-debtors could so long have been ignorant of it. I do not think applicant can put in such an application after the proceedings have been completely closed and finished and I doubt very much his good faith in bringing it.”
3. It is urged in appeal that the Courts below have been entirely in error as to the point of view from which the case should have been regarded. The dictum in Fakaruddin Mahomed Ahsan v. Official Trust of Bengal(1) quoted with approval in Ram Saran Pande v. Janki Pande(2), to the effect that where a decree has been completely executed the Court executing the decree is functus officio, has not found complete favour in subsequent decisions. In the case of Duljeet Gorain v. Rewul Gorain(3) the Court was held bound to correct if it made a delivery of possession not in accordance with the decree. This view has been followed in such cases as that of Biru Mahata v. Shyama Churn Khawas(4). There is no doubt a distinguishing feature in the case of Collector of Jaunpur v. Bithal Das(5), but the general principle that the Court should correct its own mistake and not drive the parties to a subsequent suit was upheld. If indeed the Court officer did, in the proceedings on the order of 5th October, 1915, deliver possession without the knowledge of the judgment-debtor of lands not covered by the decree, the Court was required to correct the mistake on an application made by the judgment-debtor within the period of limitation. The learned Judge has, as we have indicated, dealt with the case also on the merits and decided that nothing in excess of the decree was delivered. We have had the order of the bailiff, his return thereon, and the original decree translated. We find that the bailiff, purported only to have delivered possession of the lands covered by the decree. There is no evidence at all on the record to show that this is not correct.
4. In the order to the bailiff is a verbatim copy of the boundaries of the lands awarded to the plaintiffs as given in the decree in the suit. If the lands upon which the alleged trespass by the decree-holder took place lie within those boundaries, there has been no trespass. If they fall outside those boundaries the trespass is a tort by the decree-holder independent of any proceedings in execution and his remedy lies by suit and not by application under S. 47. We therefore dismiss this appeal with costs. Hearing fee two gold mohurs.
V.S/R.K
5. Appeal dismissed.