Sukhdev Soni (died) per L.Rs. vs Ramesh Chandra Sarda

D. Appa Rao, J.—This is an appeal, by the Judgment Debtor, against the order of the learned Senior Civil Judge, Vikarabad, Ranga Reddy District, in E.A.No. 37 of 2002 in E.P.No. 14 of 1991 in O.S.No. 589 of 1997, dated 04-04-2003, wherein, the learned Senior Civil Judge reversed the order of dismissal and allowed the execution approving the draft sale deed.

The respondent herein filed a suit in O.S.No. 589 of 1977 against R-1 (sic. first appellant) one Sukhdev Soni, since died, for Specific Performance of Agreement of Sale, dated 16-08-1974, marked as Ex.A-1 in the suit. The suit was decreed in part, against which, an appeal was preferred by the defendants, and Cross-Objections were filed by the plaintiff. Ultimately, the High Court, in C.C.C.A.No. 1110 of 1981 and Cross-Objections, decreed the suit for the entire suit property, bearing Door No. 7-4-55 and 7-4-68 and also for delivery of possession.

Pursuant to the decree, the Decree Holder filed E.P.No. 14 of 1991 for execution of sale deed mentioning the house numbers as 7-4-55 and 7-4-68 to 71 with following boundaries:

East: Main road leading to Railway Station

West: Lane

South: House of Gopikishan

North: House of Icharaj Bai Sarda

When the Judgment Debtor opposed the said description and pointed out that the agreement does not pertain to the property mentioned as 7-4-69, 70 and 71 and that the western boundary shown as "lane" was never agreed to be sold. On that the very decree holder filed E.A.No. 46 of 2001 for amendment in conformity with the agreement as well as the suit. The petition was allowed as house numbers are concerned but in regard to the western boundary, no amendment was ordered. However, the main E.P. was dismissed by order dated 23-11 -2002 on the ground that the decree of the Court is not in regard to the entire house and there was no order in regard to delivery of possession. The Decree Holder filed the E.A.No. 37 of 2002 to review the order on the ground that it is an error apparent on the face of the record.

The learned Subordinate Judge after considering the contentions of both the sides opined that:

It is to be mentioned herein that admittedly, boundaries are mentioned for the suit properties which are 7-4-55 and 7-4-68, in the plaint, and both the parties filed the certified copies of the plaints and they are available in the file. So, the boundaries mentioned in the plaint are regarding the suit houses only. May be, by mistake, the boundaries are not mentioned in the decree. Therefore, it can be said that the boundaries mentioned in the plaint are the boundaries for the schedule properties, though they are not mentioned in the decree. The contention of the Judgment Debtor is that the boundaries given cover all properties and therefore decree is not executable. The duty of the execution Court is only to adhere to the Judgment and decree and it cannot go beyond the decree and judgment. When the Hon''ble High Court of A.P. held that the Decree Holder is entitled to the decree for the entire schedule properties which are D.No. 7-4-55 and 7-4-68, within the boundaries mentioned in the plaint, and Decree Holder is entitled to deliver the possession of those properties, this Court has no other go except to see that the decree is executed as it is.

So after going through the entire material on record, this Court is of the opinion that the Order dated 23-11 -2002 in E.P.No. 14 of 1991 is passed without considering the Judgment of the Hon''ble High Court of A.P. in C.C.C.A.No. 110 of 1981 and it is an error on the face of it and the Order is liable to be reviewed. I hold that the E.P.No. 14 of 1991 is liable to be allowed as prayed for.

Aggrieved by the said order, the Judgment Debtor preferred this appeal contending that the order of the lower Court is contrary to law and not in conformity with the terms of the decree. It ought not to have entertained the execution petition itself as it is contrary to the terms of the original decree. The execution petition was filed in respect of the properties which were not mentioned in the decree. The boundaries do not tally. It covers not only the suit property but also the adjacent properties which are not subject matter of the suit. The draft sale deed is contrary to the orders passed in E.A.No. 46 of 2001, dated 25-9-2001. The trial Court ought to have rejected the very execution petition itself.

The point that arises for consideration is whether the draft sale deed was in consonance with the decree, the plaint and the agreement of sale.

There is no dispute in regard to the schedule mentioned in the agreement of sale dated 16-8-1974. The Judgment-Debtor agreed to sell the property bearing D.Nos. 7-4-55 and 7-4-68, as per the boundaries mentioned as stated below.

North: House of Smt. Icharaj Bai Sarda.

South: House of Ramjiwan Gopikishan Baldava

East: Main Road

West: House of Sukhdev Soni

At this juncture, it has to be noted that Sukhdev Soni the very Judgment Debtor, since died, has executed the agreement. Obviously, a perusal of the agreement shows that he owns five houses bearing House Nos. 7-4-55 and 7-4-68 to 71. Out of them, he sold away 7-4-55 and 7-4-68. Obviously, he having property on the western side he has shown his name as a western boundary holder. However, when the plaintiff filed the suit, he mentioned the following boundaries in the plaint schedule:

North: House of Smt. Icharaj Bai

South: House of Ramjivan Sarda, Gopikrishna, Baldva

East: Main Road

West: Way (after striking the name of Sukhdev Soni)

It is very important to note that there is a correction in regard to the western boundary. The name of D-1 Sukhdev Soni was struck off, and in its place ''way'' is mentioned.

Ultimately, the High Court granted decree in the suit directing the defendants to execute sale deed. When the plaintiff sought for execution of a registered sale deed by the Judgment Debtor, he mentioned the above schedule in the execution petition, by adding three more house numbers, which were already referred to. The other house numbers were deleted on the ground that there was a mistake. The decree holder asserts that the western boundary was correct and need not be corrected.

The learned Counsel for the respondent-Decree Holder contends that in view of the fact that in the plaint, the western boundary was shown as ''way'' and that there was no objection taken in the written statement, nor there was any pleading to that effect, the Judgment Debtors are not entitled to canvass the said question in the execution petition. At any rate one cannot go beyond the decree.

The learned Counsel for the appellants-Judgment Debtors on the other hand contends that the correction that was shown in the plaint was not shown in the copies furnished to him. Had there been such a correction, they would have taken a plea to that effect. At any rate, in the very decree, the schedule was not mentioned. He was unaware as to the correction, in the western boundary. Had there been such a correction, he would have questioned. In fact, when the decree was not passed in regard to other house numbers 7-4-65, 70 and 71, and when the mistake was pointed out, it was corrected. Now the Decree Holder intends to grab the property belonging to him under the guise of mistaken description as to the western boundary.

Since there was a correction in the western boundary in the plaint and the very same thing was not carried into the decree, the Judgment Debtor may not be able to know that there was a correction in the western boundary. Even the plaintiff cannot go beyond the agreement. When the agreement clearly mentions that the Judgment Debtor''s property is on the west, he cannot turn round and say that there is a ''way''. Had there been a change of ownership from the date of agreement or change in the boundary, it should be pleaded in the plaint. I reiterate a specific pleading could have been made in this regard. In the absence of such pleadings, by innocuously correcting the schedule, he can not take benefit. It does not lie in the mouth of Decree Holder to contend that the western boundary is a ''way''. The Decree Holder intends to take the property, what was not mentioned in the agreement of sale. I do not think that the correction in the plaint is by mistake. It is want only made. The Decree Holder can not be permitted to take the advantage and under the guise of correction cannot have the property beyond the contract, which he entered under the agreement of sale Ex. A-1.

15.The learned Counsel for the respondent-Decree Holder, relying on a decision reported in Sheodhyan Singh and Ors. v. Musammat Sanichara Kuer and Ors. AIR 1961 SC 540 contended that the boundaries prevail over the numbers. There is no dispute as to the proposition. If there is a misdescription, the boundaries always prevailed over area.

In the case on hand, there is no dispute in regard to the extent of the property or the identity of the property. The mistake is in regard to the description of western boundary. Since the very Judgment Debtor owns properties on the west and he intends to sell the property to the plaintiff Decree Holder as per the schedule noted in the agreement, he could not have mentioned it as ''way'' when his properties are situated on the west. By introducing such a correction in the plaint, he cannot take altogether a different property. In cases of this nature, the Court has to necessarily see the entire case record and find out the real property, which in fact was never in question. In view of the fact that there was correction in the plaint, which is contrary to the agreement schedule, and not shown in the decree schedule, it has to be held that the mistake is not bona fide. Therefore, the Decree Holder is entitled to take property as per the schedule mentioned in the agreement and not beyond. If this is permitted, the parties may introduce some other properties under the guise of correction. By perusing the entire record, I am in full agreement with the contention taken by the Judgment Debtor that he did not sell the property as mentioned in the corrected plaint schedule. In fact, the judgment debtor has no objection if the decree is executed as per the boundaries mentioned in the agreement.

As I could see, the schedule mentioned in the agreement is not faithfully carried in the plaint schedule. There is no schedule property appended to the decree. Since the corrected plaint schedule was not supplied to judgment debtor, there is no occasion for him to notice about this correction. In order to see that substantial justice is done to the parties, the courts are bound to see the entire record and correct the mistake. The very purpose of inviting objections by Order 21 Rule 34 C.P.C., is to see that no prejudice is caused to the judgment debtor. The sale deed necessarily must conform to the property that is being sold. The decree holder in the instant case is not faithful in describing the western boundary in the draft sale deed. He wanted to take undue advantage over the judgment debtor by altering the boundary.

In the result, the appeal is allowed in part setting aside the order dated 4-4-2003 in E.A.No. 37 of 2002 in E.P.No. 14 of 1971 in O.S.No. 589 of 1997 on the file of the Senior Civil Judge, Vikarabad, Ranga Reddy District. The respondent-Decree Holder is directed to correct the western boundary in conformity with the schedule mentioned in the agreement of sale Ex.A-1, in the draft sale deed and on such correction, the E.P. could be proceeded according to law. No costs.