Dev Kumar Mishra vs Urmila Devi

Manoj Misra, J.—Supplementary affidavit filed today, is taken on record.

Heard learned counsel for the revisionist and perused the record.

The present revision has been filed by judgment-debtor against the order dated 09.02.2017 passed by the Additional District Judge, Court No.5, Allahabad by which the objection of the revisionist, under Section 47 CPC, in respect of executability of decree passed in S.C.C. Suit No.48 of 2012, has been rejected.

A perusal of the record would reveal that S.C.C. Suit No.48 of 2012 was instituted by the plaintiff-respondent (herein after referred to as decree-holder) for the following reliefs:-

"(i) a decree for Rs.57500 as rent, prop., water tax, electricity charges and cost of notice against the defendant;

(ii) ejectment of the defendant from the premises detailed at the foot of the plaint and for vacant possession;

(iii) future damages from the date of suit till the date of possession;

(iv) cost of the suit;

(v) any other relief which the Court deem fit and proper."

The suit premises was described at the foot of the plaint as:- "A Hall and latrine towards South of the said house no.7P/5/1, Tashkand Marg, Civil Lines, Allahabad in the middle side measuring 12ft x 21ft situated at second floor.

The said suit was decreed by judgment and decree dated 17.11.2016. The operative portion of the judgment dated 17.11.2016 is being reproduced herein below:-

"okfnuh dk okn izfroknh ds fo:) cdk;k fdjk;k] vuqikfrd tydj o vuqikfrd fo|qr pktZ] [kpkZ uksfVl] f[klkjk ,oa csn[kyh ds lUnHkZ esa lO; vKkIr fd;k tkrk gSA izfroknh dks vknsf''kr fd;k tkrk gS fd og okfnuh }kjk nf''kZr cdk;k fdjk;k vuqikfrd tydj o vuqikfrd fo|qr pktZ] [kpkZ uksfVl rFkk Hkfo"; ds [kkyh djus ds fnukad rd dk f[klkjk dh /kujkf''k vnk djds iz''uxr ifjlj 30 fnu ds vUnj [kkyh djds dCtk n[ky okfnuh dks ns nsosA"

Pursuant to the aforesaid judgment, a decree was drawn. The front page of the decree disclosed the reliefs sought by the plaintiff as follows:-

"(i) That a decree for Rs.57500 as rent, prop. water tax, electricity charges and cost of notice be passed against the defendant.

C. Fee 472 of Rs.57500/-

(ii) That the defendant be ejected from the premises detailed below at the foot of this plaint and vacant possession thereon be delivered to the plaintiff through Court.

C. Fee 4007.50 valued at Rs.48,000/- (one years rent)

(iii) That future damages from the date of suit till the date of possession be awarded to the plaintiff. Court fee of this relief shall be paid at the time of execution.

(iv) That cost of the suit be awarded to the plaintiff against the defendant.

(v) Any other relief which the Court deem fit and proper be granted."

On the second page of the decree it was provided as follows:-

"okfnuh dk okn izfroknh ds fo:) cdk;k fdjk;k] vuqikfrd tydj o vuqikfrd fo|qr pktZ] [kpkZ uksfVl] f[klkjk ,oa csn[kyh ds lUnHkZ esa lO; vKkIr fd;k tkrk gSA izfroknh dks vknsf''kr fd;k tkrk gS fd og okfnuh }kjk nf''kZr cdk;k fdjk;k vuqikfrd tydj o vuqikfrd fo|qr pktZ] [kpkZ uksfVl rFkk Hkfo"; ds [kkyh djus ds fnukad rd dk f[klkjk dh /kujkf''k vnk djds iz''uxr ifjlj 30 fnu ds vUnj [kkyh djds dCtk n[ky okfnuh dks ns nsosA"

The above decree was put to execution by filing Execution Case No.1 of 2016 in which an objection was filed by the revisionist under Section 47 CPC which was registered as Misc. Case No.18 of 2017. The objection raised by the revisionist was that the decree does not describe the property and, therefore, the same cannot be executed and since the execution court cannot go behind the decree, it would have no jurisdiction to ascertain the property in respect of which the suit had been decreed. The court below rejected the objection by the impugned order.

The learned counsel for the revisionist, relying on a decision of the Jharkhand High Court in Lokmanya Prasad v. Jamila Khatoon and others: 2010 AIR (Jharkhand) 77, has contended that where the decree does not disclose the premises from which eviction has been directed, the same cannot be executed though it is open to the decree holder to seek for correction of the decree under Section 152 of the Code of Civil Procedure. In addition to above, the learned counsel for the revisionist has also submitted that the trial court has failed to frame the necessary issue in respect of identity of the premises under tenancy and, therefore, the decree passed by the court below was not legally valid.

I have considered the submissions of the learned counsel for the revisionist and have perused the judgment cited by him. In the instant case, though the decree itself does not, in detail, disclose the premises as it has been disclosed in the plaint but the decree cannot be read in isolation inasmuch as it clearly recites the relief sought in the plaint which discloses that ejectment was sought from the property described at the foot of the plaint and the same reference to disputed property is found in the judgment of the trial court as also in the second page of the decree

As it is clearly mentioned in the first page of the decree that the disputed premises is what has been mentioned at the foot of the plaint, the decree, by way of reference, does describe the suit property.

The judgment cited by the learned counsel for the revisionist is distinguishable because from a bare reading of the said judgment, it appears that in that case the specific description of the suit premises was not provided in the plaint or even in the schedule attached to the plaint. Whereas in the present case the suit property has been clearly specified and described in the plaint. Accordingly, the stand taken that the decree does not describe the suit property therefore is not executable cannot be accepted.

In so far as the submission that the court below has failed to frame the issue in respect of identity of the premises is concerned, that cannot be accepted because the plaint specifically describes the suit property. Moreover, once the decree has been passed, the execution court cannot go behind the decree to take into consideration the aforesaid plea.

Under the circumstances, this Court finds no good reason to interfere with the order passed by the court below. The revision is dismissed.