ORDER Poonam Srivastava, J.
1. Heard Shri Sunil Vashisth counsel for the petitioners and Shri Vivek Chaudhary counsel for the plaintiff respondent.
2. This writ petition arises out of execution proceedings. The plaintiff-respondent instituted two suits. In Original Suit No. 873 of 1987, the relief claimed was for mandatory injunction against the petitioners and also for removal of gate fixed by the defendant petitioners on the land in question. The suit No. 1127 of 1990 was also instituted for removal of the gate fixed by the defendants. Simultaneously, the petitioners also instituted two suits. In Original Suit No. 164 of 1990, the relief claimed was for a decree of mandatory injunction directing the plaintiff respondent to close his door which he had opened towards the wall marked with the letter Aa, Ba, Da and also for a decree of permanent injunction restraining him to interfere in the possession over the property which was a passage shown in the map. Second Original Suit No. 1107 of 1990 was for a decree of permanent injunction to restrain the defendant from damaging the gate All the four suits were clubbed together and decided by the common judgment and order dated 13.10.2000. The suits of the petitioners were dismissed and the suits of the plaintiff respondent was decreed. The petitioners were directed to remove the gate and restore the passage. The judgment and decree passed in four suits by common judgment, were challenged in appeal by means of four separate Appeal Nos. 322 of 2000, 323 of 2000, 324 of 2000 and 325 of 2000 and the same was confirmed. No second appeal has been preferred against the said judgment. The respondent filed execution in which the petitioners filed objection under Section 47 read with Section 151, C.P.C. In the said objection, the main question raised was that no issue was framed in the suit pertaining to legality or illegality of the gate in question and in absence of framing such issue, no decision on the said controversy should be given, therefore, the decree was not executable. The objection under Section 47 of C.P.C, was dismissed against which the petitioners preferred Civil Revision No. 134 of 2005 which has also been dismissed. Both the judgment and orders dated 22.9.2005 and 23.3.2005, passed in execution proceedings are impugned in this writ petition.
3. Shri Sunil Vashisth has placed reliance upon the decision in the case of Smt. Kaniz Fatima (deceased) and Anr. v. Shah Naim Ashraf, AIR 1983 All 450, wherein the Division Bench of this Court has ruled that non-framing of issues on certain pleas raised by the party, the finding on such plea cannot be made foundation of decision on any other plea merely because evidence was led on former plea. This decision was in first appeal where one of the parties was trying to take the benefit of certain evidence, which was adduced in respect of altogether different plea. In the instant case, the first appeal was dismissed and no second appeal was preferred against the said judgment and, therefore, the principle laid down in the said decision is of no help to the petitioners. This objection was raised for the first time in the execution proceedings and It is settled principle of law that no court can go behind the decree. The judgment passed in four original suits has been annexed as Annexure-2 to the writ petition. In the Original Suit No. 873 of 1987, eight issues were framed, and in Original Suit No. 1127 of 1990 also eight issues were framed. Issue No. 6 was clearly in respect of unauthorized gate on which specific finding has been recorded. In the circumstances it cannot be said that no issue was ever framed on the question of gate. Similarly in Original Suit No. 1127 of 1990, issue No. 1 was in relation to the ownership and possession of the disputed gate and therefore the objection raised by the petitioners has no force. The suits of the petitioners were dismissed whereas the suits of the plaintiff was decreed by common judgment and also appeal filed against the same having been dismissed, the common judgment has become final, therefore, the courts below have committed no illegality in dismissing the objection under Section 47 read with Section 151, C.P.C. I do not find any merit in the argument of the petitioners. The only question raised was since no issue was framed on the legality or illegality of the gate, the decree cannot be executed which is on the face of record is a wrong assertion by the petitioners as in two suits issues have been framed regarding legality and illegality of the gate.
4. For the reasons discussed, the writ petition lacks merit and is dismissed.