Shiv Kumar Sharma vs Ist Additional District Judge and Others

D.K. Seth, J.—Order dated 14.4.1981 passed by Munsif, Kasipur in Civil Execution Case No. 63 of 1966 affirmed by the order dated 31st October, 1981 passed by the Additional District Judge, Ist Court, Nainital, in civil revision No. 72 of 5:39 PM 1/27/20111981 are the subject-matter of challenge in the present writ petition. Mr K. L. Grover, learned Counsel for the Petitioner while assailing the said order contends that by virtue of the aplication for amendment of the application for execution, the Respondent No. 3 had got the decree amended. According to him, the executing court cannot go behind the decree. It has no power to amend the decree. According to him, in the present case the amendment of the boundaries of the suit property of which delivery of possession was sought to be executed renders the suit property to be a different one from that for which decree was passed. According to him, the decree having become inexecutable because of the reason of identifiability of the suit property, the execution must fail and the same cannot be revived, by means of amendment for identifying the suit property in the application for execution without obtaining amendment of the decree by the court which had passed it. According to him, the decree having been affirmed, it is the High Court''s decree which is executable. The decree could be corrected, therefore, only by the High Court and the executing court cannot do it. It has to execute the decree as it is. The change in the boundaries sought to be brought into being by means of amendment is unwarranted and beyond the competence of the executing court. For the purpose of delivery of possession, Commissioner was appointed by the executing court. It appears from the report of the Commissioner that on the basis of the boundary given in the decree, the suit property is not identifiable and as such, the decree is inexecutable. In such circumstances, therefore, the lacuna could not be filled up by way of amendment. Therefore, according to him, the order dated 31.10.1981 passed by the learned Additional District Judge, Nainital, affirming the order dated 14.4.81 passed by the learned Munsif cannot be sustained and should be set aside.

In support of his contention, he has relied upon the decision in the case of AIR 1948 180 (Privy Council) . In the said case, the partition of a village was decreed. After more than half a century when the said partition was sought to be obtained in execution of the decree, it was found that the village was so inexplicably mixed up with other village that it was impossible to find out with reference to any contemporaneous record as to which land constituted the village in question and the decree-holders were unable to identify the village. Therefore, the decree-holders were not entitled to get in execution proceeding an order for possession of the village. While dealing with the said case, it was observed that the executing court had chalked out a means for identifying the same, though, the same has to be based on surmises. Their Lordship of the Privy Council had observed after working on the basis of the figures given that the Appellants were directed to get Joint possession which they might get partitioned subsequently. Therefore, such a proposition amounting to passing a fresh decree for Joint-possession which the executing court was not competent to pass. This decision, to my mind, does not help Mr. Grover, so far as the present case is concerned as would appear from the observations made hereinafter.

Mr. Grover next relies on the decision in the case of Mt. Hasina Begum and Others Vs. Abdul Hafiz, . The said case deals with Section 152 of the Code of Civil Procedure. It was held that an amendment allowing correction of the description of the property which completely alters the plaint and the decree and also the deed on which the plaint is passed, cannot be said to be a correction of clerical mistake in the judgment and cannot be allowed u/s 152 of the Code of Civil Procedure. In my view, this ratio also does not help Mr. Grover. Inasmuch as in the present case, the application is not one u/s 152, CPC for correction of the decree. Therefore, the ratio of the said case cannot be attracted. Mr. Grover then relied on the decision in the case of Kistoormall and Others Vs. Sattar Mohamed and Others, . In the said case, there was a mutual mistake of parties which extended into the decree. There was no mistake on the part of the Judge. The rectification of such mistake could not be made in the execution proceedings. The remedy is by way of separate suit. The facts of the present case is distinguishable from the facts of the said case. The ratio decided cannot be attracted to the facts of the present case. It is not mutual mistake in the decree and it is not a case of correction of the decree on such ground. Therefore, the said case also does not help Mr. Grover. Relying on the decision in the case of Collector of Customs, Calcutta Vs. East India Commercial Co. Ltd., , Mr. Grover contends that since the decree was ultimately affirmed by the High Court, it is only the High Court which can modify the same. The decree of the lower appellate court having merged in that of the High Court, the executing court cannot correct the same. Relying on the said judgment, Mr. Grover submits that the executing court has no Jurisdiction to correct the application for execution which virtually amounts to correct the decree itself.

In the facts and circumstances of the present case admittedly, the Commissioner who was directed to deliver possession was unable to identify the property and had accordingly submitted a report. Thereupon, an application was made for amending the description of the boundary of the suit property. It is the case- of the Respondent No. 3, that by means of such amendment in the description of the boundary, the boundary is not being changed and the suit property is not being substituted or replaced neither any excess property is being sought to be executed. According to him, the boundaries as were given in the description of the property, was required to be re-defined. It is the same boundary which is being described differently because of the changes in the possession of the respective properties on the boundary of the suit property on account of subsequent creation of title and raising of construction. It has been alleged that the property belonging to one has been sold to the other who has made construction. Therefore, the purpose of identifying the same property the description of the boundary is being amended by means of incorporating the name of the subsequent owner in the place and instead of that where the boundary was described.

Admittedly, executing court has jurisdiction to allow amendment of the execution application, if occasion so. arises. It is for the executing court while allowing the amendment to find out that by means of such amendment, it is not purporting to amend the decree and that it is not purporting to go behind the decree. The executing court cannot go behind the decree. While amending the description of the boundary, it is for the executing court to find out as to whether by means of such amendment, the description of the property is being changed or the property is being substituted. If without changing the suit property, the same can be identified by means of re-defining the boundary, such amendment can very well be allowed. It is for the judgment-debtor to show that by reason of such amendment, the property is being substituted, or that some other property is being sought to be taken possession of in execution of the decree. It is for him to show that it is not an amendment of the application in execution but is virtually an amendment of the decree itself. Now the orders impugned as recorded, there has been nothing shown by the judgment-debtor that some other property is being included or that property in excess is being sought to be executed. If the area is not increased and the property could be identified otherwise; but only the boundaries are being re-defined properly, in that event amendment re-defining the boundaries cannot be treated to be amendment of the decree or going behind the decree. Inasmuch as it would be the same property in respect whereof the decree has been passed which is being sought to be taken possession of in execution of the said decree. It is for the trial court to find out on the basis of the materials placed before it. If on the basis of the description given in the plaint and in the decree taking aid of the documents adduced in evidence on which the right is based and other descriptions available on record, if the property can be identified, then the Court can undertake such exercise. Only the boundaries as described having undergone a change, though the property can be identifiable otherwise, does not render the decree inexecutable or the executing court incompetent. It is the duty of the executing court to execute the decree and to make all endeavour to identify the property on the basis of the materials on record. In allowing such amendment, the executing court has to take care that it is not passing some other decree instead of the decree existing. It appears from the translation made at the bar that originally the northern boundary was described-" In North-Plaintiffs garden". The same is re-defined "garden of the Plaintiff (decree holder) which has been sold to Sri Ramesh Chand and Sri Om Prakash on 31st December, 1971." The eastern boundary was described originally as "In East-garden and shop of Plaintiff" and the same was sought to be re-defined as "towards East- shop of Plaintiff (decree holder) now in place of garden, there is house of Sri Ramesh Chand". The Western boundary was defined as "In West- garden of Plaintiff. The said description is being re-defined as "In Western side, there is garden which has been sold to Sri Ramesh Chand and Sri Om Prakash by sale-deed dated 31st December, 1971". The Southern boundary was described as "shop of Umesh Kumar and finally in South road of the Municipal Board". The same is re-defined as "In South-road of Municipal Board, Kashipur, Nainital and on some part shops of Umesh Kumar". Therefore, it is abundantly clear that it is a simple case of re-defining the boundaries with the change of passage of time.

Rule 35, Order XXI of the CPC casts a duty upon the executing court to enforce the decree for delivery of immovable property. It also contemplates removal of any person bound by the decree who refuses to vacate the property. A decree has to be executed. Simply by reason of changes in the description of the boundary without any change in the boundary itself, the decree cannot become inexecutable. Even if possession of the whole cannot be delivered, even then a part possession can also be delivered. If third party interest is affected, his remedy is provided under Order XXI, Rule 99 or 100 of the Code of Civil Procedure. However, the judgment-debtor has no responsibility to defend third party interest. A judgment-debtor is bound by the decree. He may resist the decree by any means. All resistance may not be genuine. Therefore, it is for the executing court to find out the property. Since the rights have been decided, no further suit can be instituted. In the present case, the suit property is not being changed or substituted.

Now the execution is being objected by the judgment-debtor which can be done only u/s 47 of the Code. The objection of the judgment-debtor is to the executability of the decree itself. Now all disputes u/s 47 are to be decided by the executing court. Similarly, even third party interest can also be gone into under Order XXI, Rules 99 and 100. Under Rule 101 of Order XXI, all questions relating to the right, title or interest in the property arising between the parties to a proceeding on an application given under Rule 97 or Rule 99 or their representatives relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have Jurisdiction to decide such questions. Rule 101 deals with the question within the meaning of Rules 97 and 99. Therefore, any jurisdiction of the Court executing the decree for deciding the dispute between the parties are recognised. Sub-rule (3) of Rule 35 empowers the executing court to put the decree-holder into possession in the manner mentioned therein. All this goes to show that the decree has to be executed. If the execution got defeated by simple objections and the executing court if considered powerless to decide such objections, in that event, an unworkable situation would arise leading to serious complications. The people will lose faith in the Justice-dispensing system if the same is confined within the tentacles of technicalities in such a manner, a situation which is grave enough to be taken care of. While executing the decree for the purpose of delivering possession, all matters incidental or ancillary or necessary orders for effective enforcement of the decree for possession can be passed. The executing court has power even to remove obstruction or super-structure.

In case the judgment-debtor taking advantage of the change of situation, by reason whereof the same boundary as described In the plaint having taken a different shape because of the title to the lands, or the nature or character of lands situated on the boundary of the said property had changed its face or appearance and by reason whereof, if the execution is obstructed on the ground that the suit property cannot be identified by description given in the plaint by the judgment-debtor is also an obstruction to the execution of the decree by the judgment-debtor and refusal to deliver possession. Therefore, such obstruction or refusal can very well be removed by the executing court provided the same does not alter, amend, substitute the suit property; if it is only a case of mere identification by re-defining the same boundaries in the present appearance. When the changes in the description of the boundary have taken place during the pendency of the suit, the same can be included by means of amendment by re-defining the boundary which does not substitute the suit property. The decree-holder cannot be compelled to file a separate suit merely because during the pendency of the suit, the description of the boundary had undergone a change. Inasmuch as it is the same boundary which is being described in line with the changes which had undergone in the same manner of old wine in new bottle. It is for the executing court to determine such question on the basis of the materials on record placed before it, taking care that it is not amending the decree but the same is only a consequential situation.

In the case of Jai Narain Ram Lundia v. Kedar Nath Khetan and Ors. AIR 1956 SC 359, it has been held:

The executing court has to see that the Defendant gives the Plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance, nobody but the Court executing the decree can determine it.

It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so, u/s 47, Code of Civil Procedure, it can only be determined by the Court executing the decree. And as for the first Court''s conclusion that it could not decide these matters because it was not the Court that passed the decree, it is enough to say, as the High Court did, that Section 42 of the Code expressly gives the Court executing a decree sent to it the same powers in executing such decree as if it had been passed by itself.

In the case of C.T.A. Ct. Nachiappa Chettiar v. M.G. Ramaswami Pillai AIR 1964 Mad 236, it has been held:

If there is no injustice to the other side, and the amendment of pleadings or enlargement of reliefs of extension is necessary for the purpose of determining the real question in controversy between the parties, the amendments should be permitted and not refused. In the present case, learned Counsel for the Appellant concedes that the prayer for execution by way of arrest which is the remedy which really concerns the judgment-debtor and the grant of which might work hardship to him, will not be pressed, we record that undertaking. Since execution is limited to the relief of attempted attachment of sums due to the judgment-debtor from a third party, as urged, there is no injustice whatever to the judgment-debtor. Further, this is the essential matter in controversy, since the decree-holder states only recently came to his notice, and he could not move for garnishee proceedings earlier. Consequently, we allow the appeal and the execution application but recording the undertaking relinquishing arrest as a relief in the execution.

The said view was based on the observation in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., and in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , wherein their Lordships of the Supreme Court have laid down the liberal criteria that should guide the court in permitting such amendments, whether of pleading in a suit or of pending execution proceedings in the interest of Justice.

In the case of B. Gangadhar Vs. B.G. Rajalingam, , their Lordships of the Hon''ble Supreme Court were pleased to lay down as follows:

Rule 35 (3) of Order XXI itself manifests that when a decree for possession of immovable property was granted and delivery of possession was directed to be done, the court executing the decree is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or super-structure made pendente lite. The exercise of incidental, ancillary or inherent power is consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgment-debtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any constructions on the property pending suit, the decree-holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the court. Otherwise, the decree becomes inexecutable driving the Plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceedings.

In the present case, both the courts have found that it is the same suit property which is being re-defined and the judgment debtor has not been able to show that any other property is being substituted or the property in excess that has been decreed is being sought to be executed. These findings have assumed the character of facts concluded by concurrent finding with which this Court in exercise of writ Jurisdiction is very slow to interfere.

For all these reasons, I find substance in the submission of Mr. Rajesh Tandon in support of the impugned orders. I have been unable to persuade myself to agree with the view of Mr. Grover, learned Counsel supporting the Petitioner challenging the impugned orders.

In view aforesaid, Mr. Grover has not been able to make out a case of violation of fundamental principles of law in the present case as has been laid down while defining the scope of Jurisdiction under Article 226 of the Constitution in matters arising out of the orders passed by the Civil Court particularly by the revisional court in a revision u/s 115 of the Code of Civil Procedure, in the case of Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad and others, so as to warrant interference with the impugned judgment.

In the result, this writ petition fails and is accordingly dismissed. There will, however, be no order as to costs.