Karnataka High Court
Shri. Shrishailappa S/O Andaneppa ... vs Shri. Imamsab S/O Dastagirsab ... on 3 March, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
W.P.NOs.64189-90 OF 2011 (GM-CPC)
BETWEEN:
SHRI SHRISHAILAPPA S/O ANDANEPPA SHETTAR
AGE: 41 YEARS, OCC: TRADER AND AGRICULTURE
R/O SHIRUR TQ. AND DIST. BAGALKOT
...PETITIONER
(BY SHRI S.B.HEBBALLI, ADVOCATE)
AND:
SHRI IMAMSAB S/O DASTAGIRSAB JANNATHAKHAN
AGE: 64 YEARS, OCC: AGRICULTURE
R/O SHIRUR TQ. AND DIST. BAGALKOT
...RESPONDENT
(BY SHRI SHRIHARSHA A. NEELOPANT, ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE IMPUGNED ORDER DATED
20/03/2010 PASSED IN EXECUTION PETITION NO.
21/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR.DN.) BAGALKOT, THE CERTIFIED COPY OF WHICH IS
PRODUCED HEREIN AS PER ANNEXURE-F
THESE WRIT PETITIONS ARE COMING ON FOR
PRL.HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
2
ORDER
The suit filed by the petitioner - plaintiff for specific performance of contract ended in decree. The decree holder filed execution petition. The respondent No.4 appeared and he had stated to the Court that he had no objection to execute. The Court Commissioner was appointed for execution of the sale deed. Draft sale deed was also prepared. Thereafter it was found by the Court that the suit schedule property does not contain boundaries and hence he made application for amendment of decree, for which the respondent - defendant has said that he had no objection to allow the said application. However, the court below has rejected the application with an observation, the plaintiff has to get amendment of the suit. Against which the present writ petition is filed.
2. The learned counsel for the petitioner submits, as rightly stated in the suit schedule of the plaint, property R S No.977/4A measuring 1 acre 33 guntas which tallies with the RTC. However, it is submitted that when execution filed, the respondent - defendant said no objection to 3 allow the execution petition and at no point of time the defendant has raised any objection. In the circumstances, the executing court should have allowed the application. Hence the rejection is improper on the part of the court below.
3. In support of his case, the learned counsel relied upon the judgment in 1989(1) Short Notes Page 16 where it has been held that amendment of the decree without seeking amendment of plaint, petition is permissible for which the learned Judge has referred 1976(1) KLJ 340 (Rachaiah & another v. Smt.Madamma).
4. The learned counsel for the respondent submits to dismiss the petition. Though he has stated no objection while allowing the application, the court found difficulty in the plaint schedule. The suit schedule property has not been furnished in full. That is not an arithmetical error and execution is impermissible and it cannot be executed since the schedule of the property and boundary has not been made available to the executing court. In the circumstances, it may not be possible to execute the 4 decree. Right way is to file amendment application to the plaint. Unless that is allowed as it is held by the executing court, it cannot be permitted. Accordingly, the petition to be rejected.
5. Heard both.
6. The property described in the schedule of the plaint is Sy.No.977/4A measuring 1 acre 33 guntas. Except this petitioner has not given any boundaries. When the suit is decreed, it is decreed in respect of a particular piece of land and also boundary. Non mentioning of boundary it is an error on the part of the petitioner - plaintiff. The record of right produced as Annexure-B, which also shows that the suit Sy.No.977/4A it is only in respect of 1 acre 33 guntas. That cannot be compared for the purpose of finality in the decree. Unless the suit schedule property is furnished with full boundary description, it is unexecutable decree. The judgment referred by the petitioner reported in 1989(1) Short Notes 16, which in turn referred 1976(1) KLJ 340 where it has been held that the errors repeated in the description in the 5 plaint or the petition, the decree which repeated that error could be corrected notwithstanding therein no amendment of the petition or the plaint was prayed for. That relief ought to have been given. That has not been done. Therefore, even at the instance of the respondent, the revision petitioner, this court will only correct the error committed by the trial court and direct that the decree also shall accordingly be corrected as if suo motu power of the court is exercised u/s 115 of CPC. It is from the submission and also as per the plaint it shows plaint boundaries has not been mentioned. But normally as it is submitted by the respondent, party should have been reserved liberty to approach the civil court for making an application for amendment of the plaint. But in the instant case, at no point of time the respondent - defendant has raised any objection in the written statement. It is the case of the petitioner that defendant has not filed any written statement in the suit and though he has entered appearance in the execution, there also he has stated no objection to execute the decree. Virtually the respondent 6 has suffered order and he has said no objection to execute the decree. The respondent who has stated no objection to execute the decree and also not objected the execution petition, he got to comply the decree in respect of the petition property. When an application is filed for amendment in execution court, it was served on the defendant who has acknowledged stated to the court that he had no objection to allow the application. That again shows that the respondent - defendant had complete knowledge about the property sought to be executed. When such is the clarity within the knowledge of the defendant, at this juncture, it is not appropriate to object for allowing the application. The judgment referred by the petitioner which in turn referred 1976(1) KLJ 340 for which the respondent defendant submits that what is permissible is only to rectify the arithmetical error. Non furnishing of boundaries is not arithmetical error. In the circumstances, the decree cannot be executed. Normally what is submitted by the respondent is well founded but in the present facts and circumstances, when he has full 7 knowledge, stated no objection, he has suffered an order, it is not for him to object. Rejecting petition only leads to multiplicity of proceedings.
7. In the ends of justice, exercising inherent power, writ petition is disposed of. The application filed by the petitioner is allowed permitting amendment of the decree. The executing court to proceed further.
Sd/-
JUDGE akd*