Orissa High Court
Sri Ghanashyam Pradhan vs Sri Ram Pratap Khenria on 10 April, 2012
Equivalent citations: AIR 2012 (NOC) 352 (ORI.)
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
HIGH COURT OF ORISSA: CUTTACK
W.A. No.421 of 2011
This appeal arises out of a judgment dated 21.07.2011 passed by
learned Single Judge in W.P.(C) No.21538 of 2010.
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Sri Ghanashyam Pradhan,
Son of Late Somanath Pradhan
Resident of Cuttack Road,
Bhubaneswar, Dist: Puri (now Khurda)
and others.
... Appellants
-Versus-
Sri Ram Pratap Khenria ... Respondent
For Appellants : M/s. Mohitosh Sinha &
P.K. Mahali.
For Respondent : Mr. Sandipani Misra.
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA
AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 10.04.2012
B.N.MAHAPATRA,J. In the present Writ Appeal, the appellants, who were
defendants before the trial Court challenge the correctness of the order
dated 21.07.2011 passed by the learned Single Judge of this Court in
W.P.(C) No.21538 of 2010, wherein the learned Single Judge has directed
the trial Court to incorporate the boundary of schedule 'B' property in
the decree and further directed the Executing Court to execute the
amended decree though such a prayer has not been made in the writ
petition filed by the present appellants.
2
2. Case of the appellants in a nutshell is that respondent No.1
filed one declaratory suit bearing T.S. No.59/83 claiming right, title and
interest over the disputed land and praying for recovery of possession of
the same. In the said suit, judgment was passed by the Trial Court on
23.12.1998decreeing the suit and the decree of the trial Court was drawn on 23.01.1999. The present appellants challenged the judgment of the trial Court in T.A. No.8/7 of 2002/99 before the learned District Judge which was dismissed vide judgment dated 17.07.2002. The defendants- appellants carried the matter to this Court in Second Appeal, which was registered as RSA No.118 of 2002. In RSA No.118 of 2002, there was serious contest between both parties and various interim applications including appointment of receiver with regard to suit property were filed and various interim orders were also passed by the Court from time to time. This Court vide order dated 24.11.2006 passed an order appointing receiver and directing identification of the case land. Direction was also given to the Tahasildar and the Executive Engineer (R & B), Bhubaneswar to identify the land on the strength of Sabik ROR and Sabik map, but not on any other document. Subsequently, the defendants-appellants upon legal advice withdrew RSA No.118 of 2002 with a bona fide impression that if an appropriate petition is filed before the Executing Court that would protect their interest and execution case would be dropped. But, the Executing Court did not consider the main point touching the identity of the land and rejected the legal submission of the appellants and proceeded further with the Execution Case vide order dated 13.04.2010. 3 Being aggrieved by the order of the Executing Court dated 13.04.2010, CRP was preferred by the appellants before the learned District Judge, Khurda at Bhubaneswar and the learned District Judge also upheld the order of the learned Executing Court. Being aggrieved, the defendant- appellants filed a writ petition bearing W.P.(C) No.21538 of 2010 assailing the orders passed by the Executing Court and the Revisional Court. This Court vide judgment dated 21.07.2011 passed in W.P.(C) No.21538 of 2010 directed the trial Court, who passed the decree for correction of the decree by inserting the boundary and also directed the Executing Court to proceed with the Execution Case for delivery of possession of the Schedule 'B' property to the decree-holder by getting the same measured as per the boundary according to correction of the decree. Hence, the present appeal.
3. Mr. Mahitosh Sinha, learned counsel appearing on behalf of the appellants submitted that the impugned judgment of the learned Single Judge directing correction/amendment of the decree by incorporating the boundary of the suit plot in the decree after a lapse of more than 12 years is not sustainable in law. There was no motion at any point of time by the plaintiff to incorporate the boundary in the decree passed by the learned trial court even though series of litigations arising out of the self same suit are being fought by the parties. By virtue of the inherent powers, conferred u/s. 151, CPC, it cannot be deemed that a decree can be corrected after a lapse of more than 12 years when a substantial right has already accrued in favour of the judgment 4 debtors. The main crux of the litigation hinges upon the identification of the suit land and the plaintiff by giving a wrong description of his purchased land is bent upon to grab the land of defendants 1 to 3 which they are possessing since 1967 and have made improvement over the land by spending huge amount of money. They have also constructed residential houses and shop rooms on the said land. Faced with the difficulty to get the suit land identified, various exercises have been made for such identification including taking the assistance of Tahasildar and Executive Engineer (R&B), Bhubaneswar. There are clear judicial orders passed in the connected Second Appeal (RSA No. 118/2002) from time to time showing that the land is not identifiable. This Court while considering the case of the respective parties made an observation that in order to identify the suit land, two documents are very much vital i.e. the Sabik R.O.R. and Sabik Map, and the Hal map is to be kept out of consideration for identification of the land. During that point of time, question of correction of decree was never urged by the plaintiff. After more than 12 years when a substantive right has already accrued and vested in Defendants 1 to 3, their such right cannot be affected in the greater interest of justice, equity and good conscience.
4. The dispute touching the boundary of the suit land is a vital legal point as raised in the W.S. filed by the defendants and by applying the principle of constructive res judicata as envisaged in Section 11, CPC, it shall be deemed that the learned courts below purposefully omitted the boundary while drawing the decree. When there is a serious 5 dispute touching the boundary of the suit land and the learned trial court with conscious judicial mind did not incorporate the boundary in the decree, it shall be deemed that the decree suffers from no infirmity and at this belated stage it is not proper to make correction in the decree when admittedly the order has not been passed by the appellate court. The matter touching identity of the suit land is a serious dispute which can be gone into and resolved in an Execution Proceedings at the instance of the judgment-debtors by filing a petition under Section 47 of the Code of Civil Procedure. This right of judgment-debtors or their representatives being available to them, they have every right to resist the execution case. The right of the judgment-debtors or their representatives to file a petition under Section 47, CPC, which is available to them, will be seriously affected if the decree is allowed to be corrected in the writ petition arising out of the execution case. The connected writ petition, which was filed by defendants 1 to 3, arises out of the Execution Proceedings and not the suit. Alternatively, the defendants have prescribed their title in respect of the land in question with reference to the boundary now directed to be incorporated in the decree inasmuch as with reference to the boundary, the claim over the land shall be deemed to have been made only with effect from 21.07.2011, which is completely a new claim not allowed by the learned courts below while passing the decree.
5. Learned Single Judge has passed the impugned judgment ignoring the clear judicial order dated 09.09.2009 passed in R.S.A. 6 without affording the defendants sufficient opportunity of being heard. Correction of decree after more than 12 years would give a strong handle to the plaintiff to exercise his claim over the defendants' land which was never purchased by him particularly when the mouzas are different. If the impugned judgment is allowed to stand, it would lead to further serious factual dispute and there will be serious miscarriage of justice. It would also affect the right of the defendants 1 to 3 to exercise their legal remedy as available to them under various other provisions of Sections 51 and 53, T.P. Act. When a party has acquired a substantial right under an erroneous decree, amendment of the said decree is not permissible. In view of the clear report of the Tahasildar that the case land could not be identified, the appellants were advised to take appropriate objection before the Executing Court for dismissal of the Execution Case on the ground that the decree was not executable.
6. Per contra, Mr. Sandipani Mishra, learned counsel appearing for the plaintiff-Respondent submitted that the present writ appeal is not maintainable against the order of learned Single Judge, who has exercised the supervisory power under Article 227 of the Constitution of India. Writ Appeal lies against the order passed by the learned Single Judge in exercise of jurisdiction under Article 226 of the Constitution of India and not against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution. Learned Single Judge while refusing to exercise the certiorari jurisdiction under Article 226 of the Constitution, directed for correction of the decree. Therefore, learned 7 Single Judge has exercised the supervisory jurisdiction under Article 227 of the Constitution for which the writ appeal is not maintainable. In support of his contention, learned counsel placed reliance on a decision of the Full Bench of this Court in the case of Mahammed Saud and others v. Dr.(Maj) Shaikh Mahfooz and another, AIR 2009 Orissa (FB) 46, wherein this Court has held that writ appeal will not lie against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution.
7. Mr. Mishra, further submitted that the decree is to be drawn in conformity with the judgment. Order 20, Rule 6(1), CPC specifically provides that the decree should agree with the judgment. In the plaint, the boundary of suit 'A', 'B' & 'C' Schedule property has been described. But in the schedule of decree, the boundary of the A, B & C Schedule property has been omitted. Such omission being clerical in nature and is not in conformity with the judgment, the same is liable to be corrected, specifically when no fault can be attributed to the plaintiff for such omission. Moreover, in the second appeal the judgment debtors have raised the question regarding identity of the suit 'B' Schedule property in absence of the boundary description in the decree. Any objection to execution, discharge or satisfaction of the decree is to be dealt with under the provisions of Section 47, CPC. After considering the objection of the judgment debtors, the learned Executing Court has rejected the same. The judgment debtors challenged the said order in revision which was also rejected on merit. The judgment-debtors challenged both the 8 orders of the courts below before this Court in W.P.(c) No.21538 of 2010. After considering the matter on merits, this Court refused to interfere with the orders of the courts below. Since an objection has been raised before this Court in the said writ petition that in absence of boundary of 'B' Schedule property, the decree is not executable, this Court directed to incorporate the boundary of 'B' Schedule property as available in the plaint so that the decree will be in conformity with the judgment. The impugned judgment being passed in the writ petition arising out of the proceedings under Section 47, CPC, the same is valid in the eye of law as the writ petition cannot be said to be a collateral proceedings. The directions given by the learned Single Judge in W.P.(C) No.21538 of 2010 do not constitute amendment of the decree. On the contrary, the same is clarification/correction of the decree based on records. Such a mistake can be rectified at any stage for execution of the decree, as the decree holder cannot be denied the fruits of the decree by such clerical mistake.
8. Correction of the decree does not take the judgment-debtors by surprise nor the same will cause any prejudice to them (judgment- debtors) as they have contested the suit knowing fully well about the identity of the suit property as per its description and boundary given in the plaint. The judgment-debtors had also taken specific plea of acquisition of title over the suit property by adverse possession. The Court has ample power under Section 152,CPC as well as under inherent jurisdiction under Section 151, CPC to correct the clerical mistakes in the decree without any application being filed to that effect. In support 9 of his contention, Mr. Mishra, learned counsel for the respondent-decree holder relies upon decisions of the apex Court in the cases of Niyamat Alli Molla v. Sonargon Housing Co-operative Society Ltd. And others, AIR 2008 SC 225 and Tilak Raj v. Baikunthi Devi (D) by L.Rs., AIR 2009 SC 2136. The plea taken in the writ appeal that by incorporation of boundary of the "B" Schedule property in the decree, the accrued right of the defendants-appellants is being taken away is nothing but misleading and not entertainable. Concluding his argument, Mr. Mishra submitted for dismissal of the writ appeal.
9. On the rival contentions of the parties, the following points fall for consideration by this Court:
(i) Whether the present appeal is maintainable?
(ii) Whether the learned Single Judge after lapse of 12 years from the date of passing of the decree is justified to issue direction to the trial Court which passed the decree to correct the same incorporating the boundary and to direct the Executing Court to proceed with the execution for delivery of possession of the Schedule 'B' property to the decree-holder by getting the same measured as per the boundary after correction of the decree though such a prayer has not been made in the writ petition filed by the present appellants ?
10. The point No.(i) is with regard to maintainability of the writ appeal. Admittedly, the writ petition before the learned Single Judge was filed challenging the order dated 23rd. July, 2010 passed by the learned District Judge, Khurda in C.R.P. No.08 of 2010 confirming the order 10 dated 13.04.2010 passed in Execution Case No.109 of 1999 by the learned Civil Judge (Sr. Division), Bhubaneswar. Taking into consideration the back-ground of the case and various orders passed by the subordinate Courts and this Court, leaned Single Judge came to the conclusion that he did not find any error apparent in the orders passed both by the Executing Court and the revisional court, which have been impugned in the writ petition filed by the appellants so as to quash the same by issuing a writ of certiorari urging various tenable grounds. However, as the boundary of the Schedule 'B' land mentioned in the plaint has been omitted in the decree, the trial court which passed the decree is directed to correct the said decree by including the boundary within a period of two weeks from the date of production of certified copy of the order of this Court in the writ petition filed by the appellants. On correction of the decree, the Executing Court is directed to proceed with the execution for delivery of possession of the Schedule 'B' property to the respondent/decree holder, after getting the same measured as per the boundary. If it finds that as per the boundary the 'B' Schedule land is more than Ac. 0.072 decs., the Executing Court shall confine the said plot to Ac.0.072 decs. If, however, the property is less than Ac.0.072 decimals, such less property shall be delivered to the decree holder as per the boundary. The Court further observed that while measuring the land, the learned Executing Court will take necessary help of the concerned police authority for causing effective measurement of the 'B' Schedule property at the time of delivery of possession. 11
11. Admittedly, when the writ petition was filed under Articles 226 & 227 of the Constitution of India and the learned Single Judge in his judgment has issued some directions to the learned trial Court and Executing Court, which are in the nature of mandamus, the writ appeal against such judgment is maintainable.
12. At this juncture it would be beneficial to refer the decision of the Hon'ble Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai and others, AIR 2003 SC 3044, held as under:
"19. Thus, there is no manner of doubt that the orders and proceedings of a judicial Court subordinate to High Court are amenable to writ jurisdiction of High Court under Art. 226 of the Constitution.
20. Authority in abundance is available for the proposition that an error apparent on face of record can be corrected by certiorari. The broad working rule for determining what is a patent error or an error apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hegde and others v. Mallikarjun Bhavanappa Tirumale (1960) 1 SCR 890. It was held that the alleged error should be self-evident. An error which needs to be established by lengthy and complicated arguments or an error in a long drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the Tribunal, authority or Court but may not substitute its own findings or directions in lieu of one given in the proceedings forming the subject-matter of certiorari.
21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command 12 the inferior Court or Tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior Court has committed any of the preceding errors occasioning failure of justice.
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24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and others v. Smt. Radhikabai and another, (1986) Supp SCC 401. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
25. Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has 13 been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.
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29. The Constitution Bench in L. Chandra Kumar v. Union of India and others, (1997) 3 SCC 261, dealt with the nature of power of judicial review conferred by Article 226 of the Constitution and the power of superintendence conferred by Article 227. It was held that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution and on the High Courts under Articles 226 and 227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. A recent 14 Division Bench decision by Delhi High Court (Dalveer Bhandari and H. R. Malhotra, JJ.) in Criminal Writ Petition Nos. 758, 917 and 1295 of 2002, Govind v. State (Govt. of NCT of Delhi) decided on April 1, 2003 (reported as (2003) 6 ILD 468) makes an in-depth survey of decided cases including almost all the leading decisions by this Court and holds - "The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial pronouncement or by the legislative enactment or even by the amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution."
The essence of constitutional and legal principles, relevant to the issue at hand, has been correctly summed up by the Division Bench of the High Court and we record our approval of the same."
13. The Hon'ble Supreme Court in the case of Umaji Keshao Meshram and others vs. Smt. Radhikabai and another, AIR 1986 SC 1272, held as under:
"101. Consequently, where a petition filed under Article 226 of the Constitution is according to the Rules of a particular High Court heard by a Single Judge, an intra-court appeal will lie from that judgment if such a right of appeal is provided in the Charter of that High Court, whether such Charter be Letters Patent or a statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-court appeal and, therefore, the decision of a Single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court."
14. This Court in the case of Mahammed Saud & Ors vs. Dr. (Maj) Shaikh Mahfooz & Anr. (supra), held as under:
"47. ....(3) A writ appeal shall lie against the judgment/orders passed by a learned Single Judge in a writ petition filed under Art. 226 of the Constitution of India. In a writ application filed 15 under Arts. 226 and 227 of the Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Art. 226, a writ appeal will lie, whereas no writ appeal will lie against judgment/order/decree passed by a single judge exercising powers of superintendence under Art. 227 of the Constitution."
15. In view of the above, it cannot be said that the writ appeal is not maintainable.
16. So far as point No.(ii) is concerned, the appellants' Counsel Mr. Sinha contended that the direction issued by learned Single Judge in the writ petition filed by the appellants-judgment debtors to amend the decree is contrary to settled position of law as it amounts to miscarriage of justice. The lis in the writ petition was with regard to correctness of the order dated 13.04.2010 passed by the executing Court and affirmed by the Revisional Court vide order dated 23.07.2010 in C.R.P. No.8 of 2010 rejecting the objection filed by the defendants-appellants. Decree passed is not executable for not mentioning boundary of the 'B' schedule property. Therefore, there is no identity of the property to execute the decree. Mr. Sinha, further contended that the limitation for amendment of decree is three years as provided under Article 137 in absence of specific stipulation of limitation for filing an application for amendment of decree. Therefore, the direction issued by the learned Single Judge to the Executing Court for amending the decree in absence of an application to be filed by the respondent-plaintiff is bad in law as no decree can be amended either under Section 151 or Section 152, CPC 16 which provides only for correction of clerical and arithmetical mistakes in judgment, decrees or orders arising therein from any accidental slip or omission beyond the period of three years limitation. In the instant case, the decree was passed beyond 12 years 5 months and 20 days from the date of passing of the impugned judgment of learned Single Judge. Therefore, the correction of the decree as directed by the learned Single Judge is barred in law and is liable to be set aside.
17. Mr. Sinha further submitted that the learned Single Judge ought to have noticed that the identity of the suit land being seriously disputed that cannot be gone into and resolved in the execution proceeding. In the meantime, a right has accrued in favour of the appellants-judgment-debtors or their representatives in respect of the property in question, who have got every right to resist the execution case. Further, the learned Single Judge has failed to take into consideration that the decree was sought to be executed in the execution proceeding claiming that the property was situated in Mouza: Berana @ Govindprasad. However, there is no such Mouza. Therefore, the decree is a nullity as held by the Hon'ble Supreme Court in 2005 II CLR 688. Moreover, the direction issued to the trial Court to amend the decree and direction to the Executing Court to execute the same against the judgment-debtors is beyond the purview of the prayer made in the writ petition of the judgment-debtors and that portion of the impugned judgment goes against them. Therefore, the direction issued to the 17 aforesaid extent certainly raises substantial question of law for consideration by this Court.
18. The learned counsel for the plaintiff-respondent sought to justify, the aforesaid direction issued by the learned Single Judge in the impugned judgment passed in the writ petition. It was vehemently argued that to get the fruits of the decree, learned Single Judge rightly directed the trial Court to correct the decree and the Executing Court for enforcing the same. Therefore, in the interest of justice exercising power under Section 152, CPC, learned Single Judge has rightly directed the Trial Court to amend the decree. Section 152, CPC enables the Court to correct the arithmetical and clerical errors etc. at any point of time. Non- mentioning of boundary of the Schedule 'B' Property in the decree is a mistake of the Court. It being a mistake of the Court, a party should not suffer as it amounts to miscarriage of justice so far as the respondent- plaintiff is concerned. The learned counsel placed reliance upon the following decisions of the Hon'ble Supreme Court:
(i) Niyamat Ali Molla V. Sonargon Housing Co-
operative Society Ltd. and Ors., AIR 2008 SC 225
(ii) Tilak Raj V. Baikunthi Devi (D) by L.Rs., AIR 2009 SC 2136
19. It is the undisputed fact that the subject matter of challenge in the writ petition was rejection of the objection filed by the appellant- judgment-debtors under Section 47, CPC contending that the decree is drawn without mentioning the boundary of 'B' schedule property and 18 such a decree is not enforceable and/or executable as it is a nullity in the eye of law. Further, it is also not in dispute that the boundary of 'B' schedule property is not mentioned in the decree. Apart from that the further contention of the defendant-appellants is that the subject matter of Plot No.727/1656 in the 'B' schedule property is not the property of the plaintiff. The property under occupation/possession of the appellants, i.e., Plot No.767/1652 does not belong to Mouza: Berna @ Govindprasad. This is not the property which is purchased by the plaintiff, sought to be modified. Objection statement filed under Section 47, CPC, in respect of identity of the property, is under dispute. Learned Single judge was required to examine the legality and validity of the orders of the Executing Court and the Revisional Court. Learned Single Judge, while examining the correctness of the order of the Revisional Court, undisputedly has given a direction to the trial court for mentioning the boundary, that is, at the instance of the Court. This is not permissible in the proceeding initiated by the writ petitioners, who are the judgment-debtors. The learned Single Judge has not dealt with as to whether such direction could have been issued suo motu without there being an application before the Trial Court and such application could have been filed after lapse of 12 years period of passing the decree by the trial court. Had such an order been passed adverse to the interest of appellants, then only they could have challenged the same either before the Revisional Court or in the writ proceedings as the case may be. Therefore, the learned Single Judge was not called upon to give such 19 direction suo motu. The said direction is beyond the power of judicial review in the writ petition filed by the appellants. Exercising judicial review power, this Court is not empowered to give any direction to the Trial Court to amend the decree particularly, when no such prayer is made in the writ petition. The Trial Court is empowered on an application being filed by the plaintiff respondent for amendment of the decree within the period of limitation prescribed under Article 137 of the Limitation Act, since Section 152, CPC prescribes that at any time an application can be filed for correction of arithmetical error in the decree. Whether the limitation prescribed under Article 137 is applicable or not is a question required to be examined by the Trial Court. However, the period of limitation of 12 years under Article 136 of the Limitation Act for making application for execution of any decree (other than a decree granting mandatory injunction) or order of any civil suit is provided in case of enforceable decree. In the present case, in absence of description of any boundary of the 'B' Schedule property, a decree is not enforceable in law against the appellants.
20. For the reasons afore-stated, the direction suo motu should not have been issued by the learned Single Judge to the Trial Court to correct the decree mentioning the boundary of the property under 'B' schedule property which is seriously contested by the defendants- appellants on the ground that 'B' schedule property mentioned in the plaint is not identifiable and the property of appellants-judgment-debtors, who are in possession of the same, is not of Mouza Berna @ 20 Govindprasad. This is once again a disputed question of fact required to be gone into and finding to be recorded. Without examining all these aspects for which claim and counter-claim are there, learned Single Judge should not have directed the Trial Court to correct the decree as the same is wholly impermissible in law.
21. The decision of the Hon'ble Supreme Court in the cases of Niyamat Ali Molla (supra) and Tilak Raj (supra) are of no help to the plaintiff-respondent as the questions of law involved in those cases are different from this case for the reasons stated above.
22. In view of the above, while answering point no. (ii) in favour of the defendants-appellants, we set aside the direction of the learned Single Judge and allow the writ appeal, which will not stand on the way for the plaintiff-respondent to move an application, if it is permissible in law, before the Trial Court seeking such amendment in the decree. If such application is filed, it is open for the defendants-appellants (judgment debtors) to file their objection taking all such pleas available for them in law. On such application and objections being filed, the Trial Court shall hear both parties and pass appropriate orders.
23. The writ appeal is allowed with the aforesaid observations and directions.
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B.N.Mahapatra, J.
V. Gopala Gowda, C.J. I agree
...............................
Chief Justice
Orissa High Court, Cuttack
Dated 10th April, 2012/ss/skj/ssd
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