Chinnammal vs Rajeswari

K. Kalyanasundaram, J.—This Civil Revision Petition is directed against the Order dated 8.9.2011 passed by the First Additional District Munsif Court, Erode in E.A. No. 39 of 2010 in E P. No. 46 of 2004 in O.S. No. 542 of 1998.

The Petitioner is the First Defendant in O.S. No. 542 of 1998. which was filed by the First Respondent, for Specific Performance and for recovery of possession of the Suit property.

After contest the Suit was decreed on 31.1.2000. The Decree-holder filed an Execution Petition before the Sub-Court Erode in E.P. No. 327 of 2000 and the same was transferred to the First Additional District Munsif and re-numbered as E.P. No. 46 of 2004. The Court had executed the Sale Deed in favour of the Decree-holder on 8.2.2007 in D. No.312 of 2007. Thereupon, the Decree-holder filed E.A. No.39 of 2010 to amend the description of the property in the Execution Petition contending that during the pendency of the Execution Petition, the Judgment-debtor had put up construction without her knowledge. The Application was resisted by the Judgment-debtor. However, the Executing Court allowed the Application. Aggrieved by the said Order, the present Civil Revision Petition is filed.

Mr. N. Manokaran, learned Counsel for the Petitioner submitted that the pleadings of the parties would show that on the date of the Suit superstructure was in existence in the Suit property But. the Decree-holder without seeking amendment in the Plaint, now, she has filed the Amendment Petition with the false averment that during the pendency of the Execution Petition, the superstructure was put up in the Suit property. The learned Counsel further submitted that the Decree-holder, without amending the Suit schedule and the Decree, cannot seek amendment of the Execution Petition.

On the other hand. Mr. Ma.P Thangavel, the learned Counsel for the First Respondent submitted that the Petitioner herein had entered into an agreement with the First Respondent on 8.5.1997 agreeing to sell the property for a sum of Rs. 40 000. The agreement was a registered one and on the date of Agreement, the Decree-holder paid a sum of Rs. 35,000 towards advance and after the Decree was passed on 31.1.2000, the Decree-holder deposited the balance amount and a sale deed was also executed in favour of the Decree-holder in the year 2007. It is further contended that only during the pendency of the Execution Petition, the Judgment-debtor has put up the superstructure. Considering the facts, the Executing Court has rightly allowed the Application.

The learned Counsel further submitted that even though the Defendants have contended in the Written Statement that on the date of the Suit there were six shops in existence in the Suit property, it was not established during the trial and there was no finding to that effect also. The learned Counsel further submitted that the Decree passed by the Trial Court has become final and as per the Decree, the First Respondent is entitled to recovery of possession.

In this context, it is relevant refer to the following Judgments:

(i) The Hon''ble Calcutta High Court, in a judgment reported in Rajendra Prasad Agarwalla v. Allahabad Bank, AIR 1987 Cal 262. has observed as follows:

"14. The above decisions unequivocally lay down the proposition that amendments to Execution Applications can be allowed in the interest of justice, even if and also at a stage when Order 21, Rule 17, cannot be invoked, by invoking the provisions of Sections 151 & 153 of the Code. Whether an amendment which seeks to change the nature and character of the Execution Application, can be allowed. As stated earlier, in the instant case the Execution Application initially filed was for realisation of the decretal dues and by the amendment and Decree-holder prayed for recovery of possession of the Suit lands. There is no manner of doubt that the amendment completely changed the nature and character of the Execution Application, and it was not one of those amendments which was of a technical nature or by which the Decree-holder sought assistance of the court for its execution in a different mode other than in which it was earlier prayed for as in the decisions cited above.

From the aforesaid decisions it is apparent that the principle is now well settled. An amendment of an Execution Application is not restricted to Order 21, Rule 17 only. Order 21, Rule 17, sub-rule (1) contemplates the situation when the Application is first filed. The purpose of the same sub-rule is to allow an opportunity to be given at the very onset of making such Application, so that formal defects of the nature specified in Rules 11 to 14 of Order 21, may be rectified. We need not go into any question of so-called the distinction between sub-rule (1) and sub-rule (4) of Rule 17 as pointed out by the learned Single Judge as it is not necessary to do so in the present case. In our opinion this Court has ample jurisdiction to allow an amendment of such Application though it is not covered by Rule 17. However, in allowing such amendment the Court has to consider whether it has the effect of substantially altering the character of the Execution proceedings. "

(ii) In Kassim Beevi v. Meeranchi Myteen Beevi, AIR 1987 Ker 226. it is held as follows.

"When there was mis-description in the agreement of sale about the boundaries of the properly agreed to be sold and this discrepancy was noticed by the Court passing the Decree for Specific Performance, the execution of the Decree could not be opposed on the technical plea of mis-description of the property, when there was no dispute as to identity of the property agreed to be sold. In the case of this nature, the Executing Court is bound to carry out and implement its Decree in accordance with its tenor which in turn would imply that the property should be correctly described with the proper boundaries. It is not as if by doing so the Court is traversing beyond the decree or causing any prejudice to any of the parties or conveying property not agreed to be conveyed."

(iii) In Kalipada Sinha v. Mahalaxmi Bank, AIR 1996 Cal 585. it is held as follows.

"5. Mr. Sen on behalf of the Applicant has taken us through various provisions of the Civil Procedure Code and has argued that Execution proceedings are separate proceedings from a Suit and neither Order 21, Rule 16, nor Section 151 or 153 of the Civil Procedure Code applies. The matter is set at rest by a Bench decision of this Court in, Rohini Kumar Roy v. Krishna Prasad Roy, 1935 (39) Cal. WN 1144. In that case, the question arose about the power of the Court to amend an Execution Application. The very same objections were made, viz., that no such power existed in the Executing Court since the amendment could only be done under Order 21 Rule 16 or 17 and under no other provisions of law. The objections were overruled and it was held that the Court had inherent power under Sections 151 & 153 of the code of Civil Procedure to allow amendment of the Petition for execution of the Decree in the interest of justice. In our opinion, it would be a strange proposition that Section 23 of the Companies Act, 1956 should enable a Company in its new name to continue any legal proceeding but that the Executing Court should be without any power to allow it to do so, in the case of Execution proceedings which were pending. In our opinion thus point has no substance and has been rightly rejected."

(iv) In a Judgment reported in Chloride India Ltd. v. District of Judge, Puri, AIR 1997 Ori. 135, it is held as follows:

"16. By amendment Opposite Party No. 3. inserted only that description which was given in the HRC. Petition and in respect of which, House Rent Controller passed the Order of Eviction. It appears that original Execution Petition did not contain any detailed description of the premises in question The Decree-holder-opposite Party No.3 did not change or alter or substitute any description, but merely supplied the description to rectify an omission. If the Decree-holder had sought to introduce a description different from the description given in the H.R.C. Petition the Judgment-debtor- Petitioner might have a legitimate grievance. In the facts and circumstances of the present case the description introduced by amendment is in conformity with the description given in the H R.C Petition. Thus, the Executing Court did not commit any error in allowing the amendment and the I District Judge rightly rejected the Petitioner''s Application under Section 115, C P C."

(v) In Ravinder Kaur v. Ashok Kumar, AIR 2004 SC 904 (1). it is observed as follows

"Therefore, raising a dispute in regard to the description or identity of the Suit Schedule property or a dispute in regard to the boundary of the Suit Schedule property is only a bogey to delay the eviction by the abuse of the process of Court. Courts of law should be careful enough to see through such diabolical plans of the Judgment-debtors to deny the Decree-holders the fruits of the Decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system."

The decisions would show that the Executing Courts in appropriate cases have to order amendment exercising power under Section 151 in the interest of justice and entertaining hyper-technical objections of defeated Judgment-debtors would encourage frivolous litigations.

Undisputedly, the Petitioner is a party to the registered Sale Agreement dated 08.05.1997. The Sale Agreement would reveal that on the date of the Agreement, the Suit property was a vacant land. The Plaintiff has filed the suit in the year 1998. Though the defendants have contended that the superstructure was in existence, they failed to prove the allegations. The Petitioner, who is the party to the registered Sale Agreement cannot now turn round and contend that the superstructure was in existence on the date of suit to defeat the right of the Decree-holder from enjoying the fruits of the Decree.

In the case on hand, admittedly, the Specific Performance Decree passed in favour of the Respondent has attained finality. There is no dispute with the identity or boundaries of the property. However, the Petitioner put up a shed in the Suit property, with a diabolic plans to frustrate the Decree holder from taking possession of the property.

Keeping in mind the principles laid down in the Judgments referred above, I am of the view that the Executing Court rightly allowed the Application in the interest of justice. The amendment does not change the nature and character of the Execution Petition. Hence, I do not find any grounds to interfere in this Revision.

In view of the above findings, the Revision Petition is dismissed with cost of Rs. 5.000. Consequently, connected Miscellaneous Petition is closed.