DAMODARDAS JAMNADAS ZAWAR DIED THROUGH HIS LRS NARAYANDAS DAMODARDAS ZAWARversusVINOD BANSILAL TRIPATHI

2026:BHC-AUG:38692


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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                                                     District: Jalgaon


                                   WRIT PETITION NO.5977 OF 2023

                     1.     Damodardas s/o Jamnadas Zawar
                            (died through his legal heirs)

                     1A.    Narayandas s/o Damodardas Zawar,
                            Age: 68 years, Occu: Business,
                            R/o 148, Bhavani Peth,
                            Jalgaon, Dist. Jalgaon.

                     1B.    Smt. Sarjubai W/o Damodardas Zawar (died)
                            since deceased petitioner no.1A is only
                            the legal heir of the deceased 1B.
                                                                    …..PETITIONER
                                                                    (Decree holder)
                                   VERSUS

                            Vinod s/o Bansilal Tripathi,
                            Age: 50 years, Occu: Jotish Karyalaya,
                            R/o 149, Bhavani Peth,
                            Jalgaon, Dist. Jalgaon.
                                                                  …..RESPONDENT
                                                                 (Judgment debtor)

                     ______________________________________________________
                     Mr. S. B. Yawalkar, Advocate for the petitioner
                     Mr. G. V. Wani, Advocate for respondent-sole
                     ______________________________________________________

                                      CORAM                 : AJIT B. KADETHANKAR, J.
                                      RESERVED ON           : 21ST AUGUST, 2026
                                      PRONOUNCED ON         : 27TH AUGUST, 2026
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JUDGMENT :- (Per Court)

1.    Preface:

      While deliberating on the controversy arisen on account

of variance between Judgment and Decree, the Honorable

Supreme Court in a case reported at 2003 (1) SCC 197

(Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan and ors.) held

that a Decree must be in conformity with the Judgment. That

means, there must not be any variance between the operative

part of the judgment and the decree. For that at paragraph

No. 10 of the judgment, observed thus:


             10. Certain provisions of the Code of Civil
      Procedure, 1908 may be noticed. Order VII Rule
      1 CPC requires the plaintiff to give sufficient
      particulars of the relief, which the plaintiff
      claims. Order XX requires a judgment to contain
      all the issues and findings or decision thereon
      with the reasons therefor. The judgment has to
      state the relief allowed to a party. The
      preparation of decree follows the judgment. The
      decree shall agree with the judgment. The
      decree shall contain, inter alia, particulars of
      the claim and shall specify clearly the relief
      granted or other determination of the suit. The
      decree shall also state the amount of costs
      incurred in the suit and by whom or out of what
      property and in what proportions such costs are
      to be paid. Rules 9 to 19 of Order XX are
      illustrative of contents of decrees in certain
      specified categories of suits. The very obligation
      cast by the Code that the decree shall agree
      with the judgment spells out an obligation on
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        the part of the author of the judgment to clearly
        indicate the relief or reliefs to which a party, in
        his opinion, has been found entitled to enable
        decree being framed in such a manner that it
        agrees with the judgment and specifies clearly
        the relief granted or other determination of the
        suit. The operative part of the judgment should
        be so clear and precise that in the event of an
        objection being laid, it should not be difficult to
        find out by a bare reading of the judgment and
        decree whether the latter agrees with the
        former and is in conformity therewith. A self-
        contained decree drawn up in conformity with
        the judgment would exclude objections and
        complexities arising at the stage of execution.


       In the case in hand, Petitioner’s suit for eviction and

possession came to be dismissed. Relief was granted only

observing, ‘It is declared that the disputed passage is meant

for the access of inhabitants of Western block ’. While decree

was prepared in Marathi, it was recorded as “असे ठरवून देण्यात

येत आहे की, वादग्रस्त पॅसेज हा पश्चिमेकडील ब्लॉकला लागून असलेला रस्ता

पूर्व वत सुरू करावा.”

       14 years post the Decree, the Petitioner filed execution

proceedings u/o XXI of the Civil Procedure Code 1908 against

the respondent on the pretext that the disputed passage be

restituted for usage.
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      The Executing Court observed that the Decree prepared

in Marathi is not as per the operative part of the Judgment.

That, the judgment has granted merely declaratory relief for

which execution is not permissible, and even otherwise the

execution was time barred. Hence the Petitioner is before this

Court.

2.    Rule. Rule made returnable forthwith. At the instance of

the parties, the petition is heard for final disposal.


3.    Facts of the case:


3.1   Petitioner filed Regular Civil Suit No.452 of 1993

against the respondent in the court of learned Civil Judge

Junior Division, Jalgaon seeking following relief.

      Suit reliefs:

      (i)   Possession of the suit property mentioned
      at paragraph No.1 of the plaint;

      (ii) It be declared that the access for block
      standing at Western side of the suit property is
      through a 5 X 12 ft. passage.

3.2   Suit was partly decreed. Decree for eviction and

possession of the suit tenement was refused. However, it was

declared that the disputed passage was meant for the access of

inhabitants of the Western block. Operative part of the
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judgment at clause 3 reads thus: It is declared that the

disputed passage is meant for the access of inhabitants of

Western block’.

3.3    Decree was drawn pursuant to the judgment which

cited in Marathi as असे ठरवून देण्यात येत आहे की, वादग्रस्त पॅसेज हा

पश्चिमेकडील ब्लॉकला लागून असलेला रस्ता पूर्व वत सुरू करावा.


3.4    Challenge to the Judgment and Decree reached to this

Court in Second Appeals. However, none of the appellate

court interfered with the findings recorded by the Trial Court.

Findings of the Trial Court hold the field even today.

3.5    On this backdrop, contending that the respondent have

obstructed the access through the disputed passage, the

Petitioner invoked Order XXI of the Civil Procedure Code 1908

for execution in the year 2018 vide Regular Darkhast

(Execution Petition) No.560 of 2018.

3.6    The respondent opposed the application. Upon hearing

the parties, learned Judge of the executing court pleased to

reject the application. Hence the Petitioner is before this court.
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4.    Submissions:

4.1   Mr. Siddharth Yawalkar, learned advocate would

submit that the reasoning applied by the Executing Court to

reject the application is not correct.

4.2   He would submit that the Decree is not merely a

declaratory decree. His thrust is on the the words used ‘meant’

and ‘access’ in clause No.3 of the operative part of the

Judgment and Order passed in the suit.

4.3   According to Mr. Yawalkar, the term ‘meant’ coupled

with the object – ‘access’ means the disputed passage is

permitted for ingress and egress of the Petitioner, and hence

the decree is purely executable.

4.4   His further submission is that the decree is absolutely in

consonance with the judgment and order. That, the executing

court erringly drew inference that there is difference between

the judgment and the decree.

4.5   Last but not the least, Mr. Yawalkar submits that if

execution is not allowed the in given set of facts, the decree

shall be redundant. With this, learned advocate for the

Petitioner prays to allow the Writ Petition.
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4.6   Mr. Yawalkar relies upon judgments and orders

reported at (i) AIR 2011 SC 952 (Hari Ram Vs. Jyoti Prasad

and   ors.),   (ii)   AIR   1945   Bombay    20      (Vyasacharya

Madhavacharya and Ors. Vs. Daji Baba and Ors) , (iii) AIR

1973 SC 2065 (Parkash Chand Khurana Vs. Harnam Singh

and ors.) and (iv) AIR 2007 SC 514 (Sankar Dastidar Vs. Smt.

Banjula Dastidar and anr.).

4.7   Mr. Girish Wani, learned advocate for the respondent

supports the finding and the reasoning recorded by the

Executing Court. He submits that the executing court has

rightly expressed that there is variance in the judgment and

decree taking to the reduction of the verdict of the Court into

Decree in Marathi.

4.8   Mr. Wani adds that apparently clause 3 of the operative

part of the Judgment and Order is nothing but a declaratory

decree, and in no case it gives rise to an execution within the

meaning of Order XXI of the Civil Procedure Code 1908. With

this, Mr. Wani prays to dismiss the Writ Petition.
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5.    Consideration:

5.1   I have heard both learned advocates for the respective

parties. From the rival arguments, I framed following moot

issues to answer:

      (i)     Whether the Executing Court has gone behind
              and beyond the Decree?
      (ii)    Whether the Decree is in conformity with the
              judgment?
      (iii)   Whether the decree is an executable decree?

5.2   Decree follows the Judgment. Judgment speaks about

the relief prayed in the plaint. As recorded above in the case

of Lakshmi Ram Bhuyan (supra) by the Honorable Supreme

Court, the Decree must be in conformity with the operative

part of the judgment on which the Decree is passed.

5.3   In the case in hand, operative part clause No.3 issues

declaration that the disputed passage is “meant” for “access”

to the Western side of the block. Much stress has been given

by Mr. Yawalkar on these two words. He submits that the

word ‘access’ means ingress and egress. So also, ‘meant’ means

entitlement. There is no reason to disagree with such

arguments. However, still such declaration is merely a

declaration simplicitor.
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5.4    While the Judgment speaks thus, the Decree is passed in

Marathi which says that the disputed passage be restituted for

the use of the decree holder (असे ठरवून देण्यात येत आहे की,

वादग्रस्त पॅसेज हा पश्चिमेकडील ब्लॉकला लागून असलेला रस्ता पूर्व वत सुरू

करावा.)

5.5    Order XX Rule 6 of the Civil Procedure Code 1908

clause (i) says that the Decree must be in accordance with the

Judgment clearly specifying the relief granted or other

determination of the suit.

5.6    An execution can not be sought for relief which was not

even prayed in the plaint. The prayer is merely for a

declaration. For seeking execution against breach of any

prohibition, there must be a prohibitory decree i.e. an

ancillary prayer for injunction must be coupled with the

prayer for the declaration of a right. Declaration of right is one

thing, while for execution against infringement of such right

or for implementation of the declaration, a decree of

injunction would be necessary.

5.7    This necessitates now to look into the Chapter VI of the

Specific Relief Act 1963 which speaks about declaratory

decree. It reads thus:
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                       CHAPTER VI
                  DECLARATORY DECREES
      34. Discretion of court as to declaration of
      status or right.—Any person entitled to any
      legal character, or to any right as to any
      property, may institute a suit against any person
      denying, or interested to deny, his title to such
      character or right, and the court may in its
      discretion make therein a declaration that he is
      so entitled, and the plaintiff need not in such
      suit ask for any further relief:
      Provided that no court shall make any such
      declaration where the plaintiff, being able to
      seek further relief than a mere declaration of
      title, omits to do so.
      Explanation.—A trustee of property is a “person
      interested to deny” a title adverse to the title of
      some one who is not inexistence, and for whom,
      if in existence, he would be a trustee.
      35. Effect of declaration. —A declaration made
      under this Chapter is binding only on the
      parties to the suit, persons claiming through
      them respectively, and, where any of the parties
      are trustees, on the persons for whom, if in
      existence at the date of the declaration, such
      parties would be trustees.
5.8   On conjoint reading of Section 34, 35 of the Specific

Relief Act 1963, and Order XXI of the Civil Procedure Code

1908 it is manifest that a declaratory decree unclad of any

coercive or directive command, can not be put in execution.

5.9   Mr. Yawalkar’s argument on the point of ‘meant for

access’ that it itself has injunctive value needs to be looked

from the perspective of Chapter VIII (Section 38 and 39) of

the Specific Relief Act 1963, which read thus:
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                      CHAPTER VIII
                 PERPETUAL INJUNCTIONS

38. Perpetual injunction when granted.—(1) Subject to the
other provisions contained in or referred to by this Chapter,
a perpetual injunction may be granted to the plaintiff to
prevent the breach of an obligation existing in his favour,
whether expressly or by implication.
(2) When any such obligation arises from contract, the court
shall be guided by the rules and provisions contained in
Chapter II.
(3) When the defendant invades or threatens to invade the
plaintiff’s right to, or enjoyment of, property, the court may
grant a perpetual injunction in the following cases, namely:
—
(a) where the defendant is trustee of the property for the
plaintiff;
(b) where there exists no standard for ascertaining the
actual damage caused, or likely to be caused, by the
invasion;
(c) where the invasion is such that compensation in money
would not afford adequate relief;
(d) where the injunction is necessary to prevent a
multiplicity of judicial proceedings.
39. Mandatory injunctions.—When, to prevent the breach of
an obligation, it is necessary to compel the performance of
certain acts which the court is capable of enforcing, the
court may in its discretion grant an injunction to prevent the
breach complained of, and also to compel performance of
the requisite acts.


5.10   Going litera legis Section 38 and 39, the subject-matter

execution which is lodged with a perception that the Decree in

hand has an injunctive value, its executability depends upon

whether any obligation is created by the Decree or not. No

such obligation is created by the subject-matter Decree.
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5.11    In the given circumstances, neither there is implied

injunction nor applicability of the doctrine of intendment is

satisfactorily established by the Petitioner. Execution is sought

in the form of implementation of an injunction. Unless the

decree was supported with a decree of injunction, such Decree

stands deficit or inadequate. I have gone through the reliefs

prayed in the Exhibit-1 of the suit i.e. the plaint. No relief is

sought for any sort of injunction. Hence, in fact the suit itself

is deficit of adequate and necessary prayer.

5.12 The Executing Court rightly observed that ascertaining

Decree with the operative order of the Judgment does not

mean that the Executing Court has traveled beyond and

behind the decree. In view of above, I do not subscribe to the

submission of Mr. Yawalkar that the Executing Court traveled

beyond and behind the Decree while rejecting the execution

petition.

5.13   The findings of the Executing Court as regards to the

limitation issue are well reasoned. I came across the finding of

the Executing Court that the Decree holder did not adduce

any evidence or explanation as to why the execution was not

filed within 12 years from the date of decree. Nothing
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convincing is produced before this court to take exception to

the finding of the Executing Court on the point of limitation.

5.14 In view of above, with due respect I record the

judgments     reported at AIR 2011 SC 952 and AIR 2007

SC 514 which speak about continuous cause of action, as are

relied upon by Mr. Yawalkar won’t be applicable to the case in

hand.

        I have no reason to disagree with the observations made

by this Court in the case reported at AIR 1945 BOMBAY 20,

but on facts I have held that the Executing Court has not gone

beyond the Decree. In fact, in view of the law laid down by

the Honorable Supreme Court in the case of Lakshmi Ram

Bhuyan (supra), the Executing Court is justified in passing the

impugned order. In the case of Parkash Khurana reported at

AIR 1973 SC 2065, principle is laid down that identification of

a party’s right contingent to occurrence of an event does not

make it declaratory. It is also held that existence of a provision

for execution in the decree is not a condition precedent for

executability of a decree. Such is not the case in hand.
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        Here the decree itself is deficit and inadequate to have

any execution value and injunctive value. Hence, the last

citation is also of no avail to the Petitioner.

6.      For the reasons recorded above, I do not find any

infirmity in the order passed by the Executing Court.

7.      Conclusion :

        From the above discussion, I have arrived at conclusion

that no case is made out to interfere with the impugned order

passed by the Executing Court. My findings to all the issues

framed for consideration answer in negative. However, the

Petitioner may take up such legal proceeding for appropriate

relief to safeguard the right decreed by the Trial Court, as are

permissible in law.

          Hence I pass the following order.

                                ORDER

        I.       Writ Petition stands dismissed.

        II.      Rule stands discharged.



                                        ( AJIT B. KADETHANKAR, J. )
Rushikesh/2026