Kerala High Court
Ravindran And Anr. vs Dandayudhan And Ors. on 23 June, 1987
Equivalent citations: AIR1988KER32, AIR 1988 KERALA 32, (1987) 2 KER LT 37
ORDER S. Padmanabhan, J.
1. Respondents 3 and 4 in E. A. 99 of 1984 in E. P. 68 of 1983 in execution of the decree in O.S. 396 of 1962 on the file of the Munsiff, Kozhikode are the revision petitioners in the above two civil revision petitions. The revision petitions are against the same order by which an amendment to the E. P. was allowed for the purpose of incorporating the schedule of properties sought to be delivered in the E. P.
2. The case has a long chequered history of which we are not very much concerned in these two revision petitions. The revision petitioners contended before the execution court that the present R P. (68 of 1983) is not maintainable on account of the dismissal of an earlier E. P., the order on which is now pending before the Supreme Court and that the E.P, is also barred by limitation. These contentions only remain to be considered by the execution court and therefore we are not concerned with those aspects also now.
3. The revision petitioners have also a case that the entire decree schedule property has been delivered over and the decree satisfied and therefore nothing more remains to be executed and hence for that reason also the E. P. is not maintainable. That is also a contention that has yet to be considered and decided by the execution court considering the plea of the decree-holders (respondents 1 and 2) that an order for delivery of the items now sought to be included was allowed in a proceeding under Section 47, C.P.C. in an earlier E.P. 221 of 1973.
4. The impugned order is only one allowing an amendment to the E.P. for the purpose of including the schedule of properties now sought to be delivered. That order alone could be now the subject of challenge.
5. Basing on the decisions in Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126, Modi Spg. & Wvg. Mills v. Ladha Ram & Co., AiR 1977 SC 680 and Maitreyee Banerjee v. Prabir Kumar, AIR 1982 SC 17 it was argued for the revision petitioners that even though the courts are expected to have a liberal approach in the matter of allowing amendments there are four exceptions to the approach and they are (1) when new cause of action is introduced; (2) when the relief sought to be included is barred by limitation; (3) when it will result in irreparable injury to the opposite side, and (4) when valuable rights accrued to the opposite side are liable to be taken away. None of these objections is available in the present case because the amendment allowed by the execution court is not going to take away any such right, if such rights are there. Theprayers in the E.P. are there and what is inserted by amendment is only a schedule of the properties which was omitted in the E.P. If any or all of the prayers in the E.P. are not allowable on any of the grounds mentioned above the incorporation of the schedule is not going to improve the case any further. The amendment stands allowed only subject to all other contentions that are available to be raised and decided in the E.P.
6. Order 21, Rule 11(2)(f) provides that the E.P. should contain the particulars of the mode in which the assistance of the court is required, whether by delivery of property specifically decreed or otherwise. Rule 17 of Order 21 says that on receiving an application for the execution of a decree under Order 21, Rule 11(2) the court shall ascertain whether such of the requirements of Rules 11 to 14 (of Order 21) as may be applicable to the case have been complied with. If they are not complied with the court shall allow the defect to be cured then and there or within a time to be fixed by it. Form 51 in Appendix-I in the Civil Rules of Practice is for execution petitions and Rule 280 provides that defective applications shall be returned for amendment or rejected. In view of these provisions the argument was that the jurisdiction of the execution court to allow amendment of an E.P. is only at the time when it was filed or within a time thereafter fixed by the court and not at a later point of time on the application of the decree-holder. 1 do not think that there is any merit in this contention.
7. Those are only enabling provisions and they are not intended to affect the rights of parties or the powers of the court to make such orders as may be necessary for the ends of justice and Section 151 specifically saves such powers which are already there. The provision in the Code cannot betaken to be exhaustive to meet all contingencies. In order to meet such unprovided contingencies all civil courts unlike in the case of the criminal courts, are having inherent powers to meet the ends of justice and prevent abuse of the process of the court. Section 151 only saves and reminds the courts of such powers. When an unprovided contingency arises and the court is satisfied that something has to be done to meet the ends of justice or prevent abuse of the process of courts the only consideration is whether there is any prohibition in doing so. In such a contingency what is not prohibited could be taken as permitted. Otherwise the very purpose of the existence of courts will be defeated and Section 151 will become meaningless. It is the duty of the court to ascertain any defect in the,EP. as provided in Order 21, Rule 17 and allow it to be remedied. Courts are existing for dispensation of justice and not for its denial on technical grounds. Legislations are also for the same purpose and in interpreting them and applying them to the facts of cases courts must have a practical and progressive approach bearing in mind the object and purpose intended to be achieved by them. No such defect was found out by the court on ascertainment as provided in Order 21, Rule 17 or Rule 280 of the Civil Rules of Practice and no opportunity was given to rectify the same. If such an opportunity was given the defect would have been rectified earlier and if it was not rectified even then the E.P. could have been dismissed. Such a failure on the part of the court should not be capable of meting out penal consequences to the litigants. Due to the failure of the court the defective B.P. continued to be on the file without giving an opportunity for curing the defects. When the decree-holders noticed thedefect they applied for amendment and the court thought it fit to allow the same in the interest of justice without foreclosing any of the contentions available to the revision petitioners in the E.P. There is absolutely no jurisdictional error, illegality or material irregularity involved in the order. In effect the court was only rectifying its own error or omission to comply with the provisions of Order 21, Rule 17 or Rule 280 of the Civil Rules of Practice.
8. It was argued that except Order 21, Rule 17 or Rule 280 of the Civil Rules of Practice there is no provision enabling the court to allow amendment of the EP. and that the provisions of Order 6, Rule 17 are not applicable to execution proceedings. Even if that argument is accepted, there is no prohibition in the Code to permit an amendment of the E.P. at any stage other than those mentioned in Order 21, Rule 17 or Rule 280 of the Civil Rules of Practice if that becomes necessary to mete out justice to parties. What is necessary in the interest of justice and not specifically prohibited could be taken as permitted and the inherent powers saved under Section 151 gives ample strength to that position. Further as held in Smt. Tarak Dasi v. Batta Krishna Roy, AIR 1964 Cal 42 an execution petition can, on the principle applicable to amendment of pleadings, be allowed to be amended even though Order 6, Rule 17 as such may not be applicable. That principle could be extended not only to execution proceedings but in other matters also.
I do not find any merit in the revision petitions which are hereby dismissed with costs.