Jharkhand High Court
Lokmanya Prasad vs Jamila Khatoon & Ors. on 16 September, 2009
Equivalent citations: AIR 2010 JHARKHAND 77, 2010 (1) AIR JHAR R 603, (2009) 4 JCR 673 (JHA), (2010) 1 CIVLJ 836
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
Writ Petition (C) No. 5742 of 2005
---
In the matter of an application under Article 226 of the Constitution of India
---
Lokmanya Prasad Petitioner
Versus
1. Jamila Khatoon
2. Mukhtar Ali
3. Md. Jabbar Alam
4. Md. Jakir
5. Sakila
6. Gulsan
7. Md. Usman Respondents
---
For the Petitioner: Mr. Manjul Prasad, Sr. Advocate, Vijay Kr. Sharma, Advocate
For the Respondents: Mr. S.K. Sharma, Advocate
---
PRESENT
HON'BLE MR. JUSTICE D.G.R. PATNAIK
CAV ORDER
---
Reserved On: 11.09.2009 Pronounced On: 16.09.2009
---
D.G.R. Patnaik, J: Challenge in this writ application is to the order dated 7.9.2005
(Annexure-7) passed in Misc. Case No. 6 of 2005, whereby the application dated
25.8.2005, filed by the Respondents / Decree Holder under section 152 of the Code of Civil Procedure (CPC) for addition of the boundary to the description of the suit land in the decree passed in the Eviction Suit No. 20 of 1998, was allowed.
The petitioner being the judgment debtor, had contested the Decree Holder's prayer for amendment of the decree in terms prayed for, on the ground that the Executing Court exercising powers under section 152 CPC, cannot amend or incorporate the boundary of the suit land in the Decree, as the same does not come within the purview of clerical / Arithmetical error.
2. For better appreciation of the dispute, reference in brief, to the background facts of the case, would be necessary.
The respondents / decree holders filed a suit for eviction against the present petitioner vide Eviction Suit No. 20 of 198. The suit was decreed by the Trial Court in favour of the plaintiffs / decree holders vide decree dated 19.02.2003.
The Judgment and decree of the Trial Court was challenged by the petitioner / judgment debtor in appeal which was dismissed by the Appellate Court. A Second Appeal filed by the petitioner before this court was also dismissed on 12.05.2009.
During the pendency of the Second Appeal, the respondents / decree holders filed the application for execution of the decree and for delivery of possession of the suit premises, vide Execution Case No. 1 of 2005.
3. On 11.8.2005, the petitioner / judgment debtor, filed an objection petition under section 47 CPC, stating that the decree was not executable due to absence of specific description of the suit premises. The objection was registered as Misc. Case 2 No. 4 of 2005. The decree holders also filed their rejoinder thereto, but no final order was passed on the objection.
In their rejoinder to the petitioner's objection, the decree holders had argued that the description of the suit property was adequately mentioned in the plaint of the suit land but due to inadvertence, the description of the suit premises could not be incorporated in the decree by way of a specific schedule and the omission can be rectified by amendment of the decree.
4. The petitioner / Judgment Debtor filed another application on 3.9.2005, contending that since the decree holders have themselves acknowledged the fact that the description of the suit premises was not stated in the plaint, the Execution Proceeding should be dismissed.
The decree holders filed a fresh application under section 152 CPC, which was registered as Misc. Case No. 6 of 2005. By the impugned order, the Executing Court allowed the prayer of the decree holders for adding the description of the suit premises in the decree.
5. Assailing the impugned order, Shri Manjul Prasad, learned counsel for the petitioner, would reiterate that the provisions of section 152 CPC, did not vest any power to the executing court to rectify the decree by way of a second thought, since the power of the court is confined only to the correction of an error occurred in the decree on account of Arithmetical / clerical error or accidental slip and in cases where it is clear from the decree itself that something which the court intended to do, was inadvertently omitted by way of accidental slip in the decree.
Learned counsel adds further that even, as has been laid down by the Supreme Court in several judgments, a decree cannot add or subtract any relief except what has been provided in the judgment. Learned counsel explains further that the decree holders / respondents had admitted that the specific description of the suit premises has not been mentioned in the plaint by way of a separate schedule. The description ought to have included not only the correct boundary of the disputed premises, but also the specific identity by reference to its holding number and plot number and other necessary particulars. In absence of such specific description in the plaint, the decree of the Trial Court also could not include any description of the suit premises. As such, the decree cannot possibly be executed. The correction of the decree, as proposed to be made by the executing court, would cause serious prejudice to the petitioner / judgment debtor.
To buttress his argument, learned counsel would refer to and rely upon the judgment of the Supreme Court in the case of Jayalakshmi Coelho vs. Oswald Joseph Coelho [2001(1) JLJR 577 (SC)] and to another judgment in the case of K. Rajamouli vs. A.V.K.N. Swamy [2001(2) JLJR 156 (SC)] and also to a recent judgment of the Supreme Court in the case of M/s Century Textiles Industries Ltd. Vs. Deepak Jain & Anr. [2009(3) JLJR 153 (SC)].
6. Learned counsel for the respondents / decree holders, on the other hand, would deny and dispute the entire grounds advanced by the petitioner as being misconceived 3 and misleading. Offering support to the impugned order of the court below, learned counsel for the respondents would submit that it is not a case where no description of the suit premises was given in the plaint at all. Rather, in para-1 of the plaint, the description of the suit premises has been adequately given by reference to its holding number as well as the specific boundary thereof. The mere omission, if any, in the plaint to specifically add a general schedule at the bottom of the plaint giving description of the suit premises does not cause any prejudice to the judgment debtor. The decree of the Trial Court mentions the description of the suit premises, as given in para-1 of the plaint, and such description does not have any vagueness or ambiguity, so as to render the execution of the decree impossible. Since the objection was raised by the judgment debtor vide his application under section 47 CPC against the continuance of the execution proceeding, the respondents / decree holders, by way of abundant caution, had filed a petition for adding the specific description in the suit premises in the decree in accordance with the description in the plaint and recorded in the judgment, although, such prayer was strictly not necessary as because, the decree could be executable even without making any addition or rectification in the same.
Learned counsel submits further that though, in the written statement, the petitioner / defendant / judgment debtor, had denied and disputed the boundary of the suit premises, as stated in para-1 of the plaint, but the same defendant, at para-64 of his cross-examination at the trial, had admitted the boundary of the suit premises as mentioned in the plaint. As such, the petitioner / defendant / judgment debtor cannot claim to have suffered any prejudice ether on the ground of vagueness in the description of the suit premises since, there was no dispute in respect of the identity of the suit premises which was the subject matter of the decree in Eviction Suit, as also in the Execution Proceedings.
Learned counsel adds further that even otherwise, the Trial court which had passed the judgment and decree in the Eviction Suit and the Executing Court are one and the same courts and the power to amend the decree is vested in the court under the provisions of section 153A read with section 151 CPC.
7. It is further pointed out that even though the petitioner had filed a second appeal before this court against the judgment and decree of the first appellate court, but no dispute was raised by the judgment debtor / appellant in the second appeal in respect of the impugned order by which prayer for rectification of the decree was allowed. The second appeal was dismissed summarily.
8. From the rival submissions, the dispute as essentially raised by the petitioner / judgment debtor, appears to be that by adding the specific description of the suit premises to the decree by reference to its boundary, the Executing Court had committed serious error and had acted beyond its jurisdiction since, such powers are not vested with the Executing Court under the provisions of section 152 CPC.
9. The undisputed facts which emerge, are as follows:
a) In para-1 of the plaint, description of the suit premises has been given in the following manner:4
"that the plaintiffs own and possess three small and one big pucca shop in ward no. 10, on the eastern side of the main P.W.D. Road in Chatra Town near Main Chatra Bazar are consisting of three very small shops and one big shop which have been let out on monthly rents at different rents to different persons. The defendant Lok Manya Prasad is a tenant at will in the biggest shop on a monthly rental of Rs. 700/- under the plaintiffs bounded on the north by other three small shops of the plaintiffs on the south by shop of Kishori Prasad Agrawal, East by Angan and Varanda of the Plaintiffs and on the west by P.W.D. Road". No separate schedule describing the suit premises is contained in the plaint.
b) In the application for execution of the decree, description of the suit premises, as given by the decree holder, is the same as mentioned in para-1 of the plaint.
c) Though, the defendant / judgment debtor, in his written statement, had denied and disputed the boundary of the suit premises, as given in para-1 of the plaint, and has preferred to give a different description of the boundary, but at the trial, the defendant / tenant, in course of his cross-examination, had accepted the description of the suit premises as mentioned in para-1 of the plaint.
d) Though, the decree was passed in favour of the plaintiffs / respondents for eviction of the defendant / judgment debtor from the suit premises, but the boundary of the suit premises has not been mentioned in the decree.
e) The plaintiffs / decree holders have sought for addition of the boundary in the decree in the manner as stated in para-1 of the plaint and referred to in the judgment of the Trial Court.
f) The Trial Court and the Executing Court are one of the same courts.
10. In the light of the above facts, it has to be seen, I. Whether the omission in the decree to mention the boundary of the suit premises, can be said to be a clerical / arithmetical error which could be rectified in the decree?
II. Whether, the learned court below had jurisdiction to rectify such error in the decree?
III. Whether the rectification has caused any prejudice to the petitioner / defendant / judgment debtor.
511. From the admitted facts, as observed above, it appears that the description of the suit premises has been mentioned in the plaint not only by reference to its location, but also by reference to its specific boundaries. The tenant / defendant / petitioner, in his cross-examination, has acknowledged and admitted the same description of the suit premises, as stated in the plaint. It is apparent that there is no vagueness, indefiniteness or ambiguity regarding the identity of the suit premises, between the parties and this fact has been taken note of by the Trial Court in its judgment.
It also appears from the findings recorded in the judgment of the Trial Court, that the decree was passed essentially for eviction of the defendant / judgment debtor from the suit premises bearing the description together with its boundaries, as contained in the plaint. The decree, though prepared corresponding to the judgment, but it has omitted to mention the description of the suit premises by reference to its boundaries mentioned in the judgment. Since the decree was to be executed, the plaintiffs / decree holders had sought for rectification of the decree by adding description of the suit premises by reference to its boundaries.
12. It is apparent that failure to mention the boundaries of the suit premises in the decree, was due to inadvertent clerical mistake. It is not a case where the decree holder by praying for rectification in the decree, had sought to alter or substitute the description of the suit premises or change the description which was originally given and consistently maintained and even acknowledged by the defendant / judgment debtor at the trial. As it appears, no prejudice has been caused to the defendant / judgment debtor, by insertion of the description of the suit premises in the decree by reference to its boundaries.
13. There can be no dispute to the scope of the provisions under section 152 CPC which lays down that the power of the court is confined only to the correction of error occurred on account of clerical / Arithmetical error or accidental slip. Likewise, there can be no dispute to the proposition of law that in exercise of powers under section 152 CPC, that the court executing a decree cannot add or subtract any relief except what has been provided in the judgment, and also to the proposition that the Executing Court is required to execute the decree, as made, and it cannot go beyond the decree. However, it does not mean that the Executing Court has no duty to find out the true effect of the decree.
14. In the case of Bhavan Vaja vs. Solanki Mansang [AIR 1972 SC 1371], the Supreme Court has explained the scope of powers of the Executing Court in the following terms:
"It is true that as executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree, it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree, the court often has to ascertain the circumstances under which these words came to be used. That is the plain duty of the executing court and if that court fails to discharge that 6 duty it would be deemed to have failed to exercise the jurisdiction vested in it".
15. It may be noted that under the provisions of Order 20 Rule 6 CPC, decree has to be prepared in consonance with the judgment and it has to contain all the necessary particulars, as required in the Rule. Rule 9 of Order 20 CPC, lays down that where the decree is for recovery of immovable property, it shall contain the description of such property sufficient to identify the same and where such property can be identified by boundaries or by its number in the Record of Settlement or Survey. The decree shall specify such boundary or number. In the present case, as it appears, the decree has overlooked to mention the description of the suit premises by reference to its boundaries and other particulars, though mentioned in the body of the judgment. This being apparently a accidental omission, it was certainly within the competence and jurisdiction of the Executing Court, under the provisions of section 152 CPC, to rectify such error in the decree by adding the description of the suit premises by reference to its boundary, as mentioned in the body of the judgment. Thus, the Executing Court did not commit any error in allowing the amendment as prayed for by the decree holders. The impugned order, as such, does not suffer from any illegality or impropriety which could warrant interference by this court.
16. For the reasons indicated above, there is no merit in this writ application and the same is dismissed, with cost of Rs. 2,000/-. Consequently, the interim order of stay is vacated.
(D.G.R. Patnaik, J) Jharkhand High Court, Ranchi Dated 16th September 2009 Ranjeet/N.A.F.R.