The Executing Court has no power to appoint an Advocate Commissioner under Order 26 Rule 9 of the Code of Civil Procedure in execution proceedings and as such, the orders, appointing Advocate Commissioner are totally without jurisdiction.- The facts and circumstances of the cases and the principles and parameters laid down in the above referred judgments drive this Court towards an irresistible conclusion that the petitioner herein has totally failed in making out a case, warranting any interference or indulgence of this Court under Section 115 of the Code of Civil Procedure. The contentions sought to be pressed into service by the learned counsel for the petitioner are liable to be rejected as being devoid of any merit. The fact remains that the decree holder is seeking specific performance of contract in respect of the property within the boundaries as mentioned in the suit agreement of sale and decree only and in the name of mis- description of one of the survey numbers, the legitimate right of the decree holder cannot be permitted to be frustrated. Therefore, this Court is of the considered opinion that the Court below correctly exercised its jurisdiction to enable the decree holder to get the fruits of the decree. In the instant case the entire effort of the judgment debtor is obviously to get the suit claim frustrated, which cannot be permitted.

THE HON'BLE SRI JUSTICE A.V. SESHA SAI      

CIVIL REVISION PETITION No.2982 of 2014 and batch  

30-03-2015

Gurram Anantha Reddy ... PETITIONER/RESPONDENT/J.Dr.      

Katla Sayanna RESPONDENT/PETITIONER/D.Hr.        

Counsel for Appellant: M/s.C. Ramesh Sagar

Counsel for Respondent: Sri G. Rama Krishna

<GIST:

>HEAD NOTE:  

? Cases referred
1.      2007 (2) ALT 636
2.      AIR 1963 SC 1124
3.      AIR 1953 Madras 717
4.      AIR 1963 Supreme Court 1879
5.      AIR 1972 Supreme Court 1371
6.      2006 (5) ALD 838
7.      AIR 1998 PUNJAB AND HARYANA 202      
8.      1987 KERALA 226  


THE HONBLE SRI JUSTICE A.V. SESHA SAI      
CIVIL REVISION PETITION No.2982 of 2014  
And
CIVIL REVISION PETITION (SR) No.23826 of 2014  

COMMON ORDER:    
      The issue in the present revisions is a typical example
for the famous saying vows or difficulties of an Indian Decree
holder start from the date of decree. Since these two
revisions arise out of same execution proceedings and are
inter-related, this Court deems it apt and appropriate to
dispose of these two cases by way of this common order.

2.      The judgment debtor in E.P.No.2 of 2011 in O.S.No.15
of 2008 is the petitioner in these revisions. C.R.P.No.2982 of
2014 is filed against the order, dated 13-08-2014 and
C.R.P.(SR).No.23826 of 2014 is filed against the order, dated
31-10-2013.

3.      Heard Sri C. Ramesh Sagar, learned counsel for the
petitioner and Sri G. Rama Krishna, learned counsel for the
respondent and perused the material available before this
Court.

4.      The respondent herein instituted O.S.No.15 of 2008, on
the file of the Court of the District Judge, Karimnagar against
the petitioner herein for specific performance of agreement of
sale, dated 05-03-2007 in respect of the lands, admeasuring
Ac.2-16 gts., in Sy.No.115/A and Ac.4-00 gts., in
Sy.No.161/B of Bhoopalapatnam village, Choppadandi
Revenue Mandal, Karimnagar District. The learned Judge
decreed the said suit on 31-03-2010. Thereafter, the decree
holder filed E.P.No.2 of 2011 for enforcement of the decree on
09-11-2010. A.S.No.2 of 2011 filed by the defendants/
petitioners herein against the decree in O.S.No.15 of 2008
before this Court was dismissed on 15-04-2013. The decree
holder/respondent herein filed E.A.No.62 of 2013 under
Order 26 Rule 9 of the Code of Civil Procedure for
appointment of an Advocate Commissioner to identify the
land under E.P. with survey numbers and village map in
consonance with the boundary map of E.P. Schedule with the
assistance of Mandal Surveyor of Choppadandi Tahsildar
Office. By way of an order, dated 31-12-2013 Commissioner
was appointed and the same is the subject matter of
challenge in C.R.P.(SR) No.23826 of 2014. The Commissioner
so appointed filed a report on 10-06-2014 and by way of an
order, dated 13-08-2014 the learned Prl. District Judge
accepted the said report and the said order is under challenge
in C.R.P.No.2982 of 2014.

5.      The contentions and submissions of the learned counsel
for the petitioner are:
1.      Orders under challenge in these revisions are erroneous,
contrary to law and are opposed to the provisions of Order 26
Rule 9 of the Code of Civil Procedure.
2.      The Executing Court has no power to appoint an Advocate
Commissioner under Order 26 Rule 9 of the Code of Civil
Procedure in execution proceedings and as such, the orders,
appointing Advocate Commissioner are totally without
jurisdiction.
3.      The Executing Court grossly erred in appointing the Advocate
Commissioner for localizing the property for the purpose of
execution and the E.P. Court cannot travel beyond the scope of
decree and the same is impermissible.
4.      Property which is neither covered by the agreement nor the
plaint schedule property nor the decree cannot be delivered to
the decree holder by appointing Advocate Commissioner.
5.      The decree holder ought to have got amended the plaint
schedule and the decree before initiating the Executing
Proceedings.
6.      The Court below virtually permitted the decree holder to
adduce evidence afresh, which is impermissible.

        In support of this submissions and contentions, learned
counsel heavily placed reliance on the following judgments:
i.      2007 (2) ALT 636 (Vadlamani Suryanarayana
Murthy v. Saripalli Balakameswari and others)
ii.     AIR 1963 SC 1124 (Collector of Customs, Calcutta v
East India Commercial Co. Ltd.,, Calcutta and
others)
iii.    AIR 1953 Madras 717 (P. Moosa Kutty v Unknown)  



6.      Submissions/contentions of the learned counsel for the
respondent are:
1.      Orders passed by the Court below are in accordance with law
and there is no illegality nor any material infirmity nor
irregularity in the impugned orders, as such the present
revisions are not maintainable and the petitioner is not
entitled for any indulgence of this Court nor the orders
impugned warrant any interference of this Court.
2.      The contention of the learned counsel for the petitioner that
E.P. court has no power to appoint Advocate Commissioner is
not tenable in view of the provisions of Order 26 Rule 18-A of
the Code of Civil Procedure.
3.      The entire effort of the petitioner is to drag on the issue in the
name of technicalities in the instant case. The decree holder is
praying for execution in respect of property situated within the
boundaries mentioned in the suit agreement of sale and that
the boundaries prevail over and in the name of mis-description
of survey numbers judgment debtor cannot escape the
execution in the absence of any dispute with regard to the
boundaries.
4.      Having expressed no objection with regard to the appointment
of Commissioner, it is not open for the petitioner to turn
around.
5.      The decree granted by the learned District Judge was
confirmed by this Court in A.S.No.2 of 2011 by enhancing the
amount of compensation by Rs.2,00,000/- and the Honble
Apex Court confirmed the same in S.L.P.C.C.No.18187-18188  
of 2013 on 21-10-2013 and the entire exercise undertaken by
the Commissioner cannot be found fault with.
6.      The decree holder deposited the entire amount as per the
decree.

        To booster his submissions and contentions learned
counsel for the respondents takes the support of the following
judgments:
1.      AIR 1963 Supreme Court 1879 (Sheodhyan Singh and Ors.  
vs MT. Sanichara Kuer and Ors)
2.      AIR 1972 Supreme Court 1371 (Bhavan Vaja and Ors. vs
Solanki Hanuji Khodaji Mansang)
3.      2006 (5) ALD 838 (Chakka Ranga Rao vs Molla Mustari Banu)  
4.      AIR 1998 PUNJAB AND HARYANA 202 (Rocky Tyres and Ors.      
vs Ajit Jain And Anr.)
5.      AIR 1987 KERALA 226 (B.T. Govindappa vs B.  
Narasimhaiahair)

7.      In the above back ground, now the issues that emerge
for consideration of this Court are:
1.      Whether the orders under challenge are in accordance
with law ?
2.      Whether the impugned orders warrants any
interference of this Court ?

8.      The information available before this Court reveals that
the decree of specific performance of agreement of sale
granted by the learned Prl. District Judge on 31-03-2010 was
confirmed by this Court on 15-04-2013 in A.S.No.2 of 2011
with a modification by enhancing the amount of consideration
and the Honble Apex Court confirmed the same on
21-10-2013 in S.L.P.C.C.No.18187-18188 of 2013. In
E.P.No.2 of 2011 the decree holder filed E.A.No.62 of 2013
under Order 26 Rule 9 r/w.151 of Code of Civil Procedure on
01-11-2013 seeking the following relief:
It is prayed that the Honble Court may be pleased to
appoint an advocate/Commissioner to identify the land
under E.P. with Survey numbers and village Map in
consonance with the boundaries of E.P. Schedule with
the assistance of Mandal Surveyor of Choppadandi
Tahsil Office.


9.      A reading of the affidavit filed in support of the
E.A.No.62 of 2013 makes it manifest that the decree holder
filed the said application in the background of objection taken
by the judgment debtor on the executability of the decree on
the ground that one of the survey numbers was incorrectly
mentioned as Sy.No.161/B instead of Sy.No.161/C. A perusal
of the docket of the said application vividly shows that while
receiving notice on 01-11-2013 learned counsel for the
judgment debtor made an endorsement, stating that a Senior
Advocate and Deputy Director of Survey and Settlement be
appointed for marking physical features and distance between
two survey numbers and boundaries. The petitioner herein
did not file any counter, opposing the appointment of
Commissioner. The learned Prl. District Judge, by way of an
order, dated 31-12-2013, appointed one Sri. K. Manohar Rao
as Advocate Commissioner with a direction to him to take the
assistance of senior surveyor appointed by the Assistant
Director of Survey and Settlement Department, Karimnagar
and he was directed to receive work memo from both parties
in execution of warrant.
       

10.     In pursuance of the said order, dated 31-12-2013, the
learned Advocate Commissioner submitted his report on
10-06-2014 and paragraph No.9 of the said report reads as
under:
The total measured suit land is Ac.6-13G (in
Sy.No.115/A measuring Ac2-16G and Sy.No.162/C  
measuring Ac3-37G) is in a compact block and the area
under the way measuring 0-03 gts., is deducted as
furnished by surveyor. Therefore, on my physical
verification and investigation to avoid confusion of
identify of suit land have specifically added the
required correct boundaries of owners of the suit land
which is as follows:-
East:- P.W.D. road and a portion of land of Munigala
chandraiah in Sy.No.178/B and land in Sy.No.178/A
belongs to Gurram Madhusadhan Reddy.  
West: Land of Gurram Mallareddy in Sy.No.116 and
Gurram Ananthareddy in Sy.No.161
North: Temporary way and land of vendor.
South: Land of Mangali (Garshakuthi) Komuraiah
Therefore, the land covered in the suit schedule
boundaries are Sy.Nos.115/A and 162/C as mentioned  
above, but the given Sy.No.161/B of the Suit land is not
within in the suit boundaries.


11.     A perusal of the said Commissioners report clearly
discloses that the learned Commissioner took the assistance
of the Senior Surveyor deputed by the Assistant Director of
Survey and Settlement Department, Karimnagar and the
Village Revenue Officer and Village Revenue Assistant
attended the spot and the Commissioner executed the
warrant in the presence of decree holder and judgment debtor
and his two sons and prepared a map also, showing the
boundaries. Subsequently, vide order, dated 13-08-2014 in
E.A.No.62 of 2013 the learned Prl. District Judge accepted the
said report of the Advocate Commissioner. The said order,
dated 13-08-2014 is under challenge in C.R.P.No.2982 of
2014, whereas the order, dated 31-12-2003 is under
challenge in C.R.P.(SR) No.23826 of 2014.

12.     The objections of the judgment debtor for enforceability
of the said decree are that the E.P. court cannot travel beyond
the decree granted by the original Court and there can be no
appointment of Commissioner in E.P. proceedings and only in
suits Commissioners can be appointed and the E.P. Court
exceeded its jurisdiction by appointing an Advocate
Commissioner for localizing and identifying the property and
the respondent/plaintiff should have sought for amendment
of the schedule of the plaint as well as the decree.

13. The contention that in Execution Proceedings,
Commissioner cannot be appointed and the E.P. Court has no
power to appoint Commissioner under Order 26 Rule 9 of the
Code of Civil Procedure has absolutely no merit in view of the
reason that as per Order 26 Rule 18-A of the Code of Civil
Procedure, the provisions of Order 26 of Code of Civil
Procedure are applicable to the proceedings in execution of a
decree or order also.

14.     In the instant case there is absolutely no dispute with
regard to the boundaries of the plaint schedule properties and
the boundaries in the suit agreement of sale and the decree.
The only controversy is with regard to one survey number i.e.,
Sy.No.161/B. The case of the decree holder is that instead of
showing Sy.No.162/C within the boundaries as shown in the
suit agreement of sale, Sy.No.161/B was incorrectly shown in
the agreement of sale and the same was carried in the plaint
as well as decree. On the other hand, it is the case of the
judgment debtor that E.P. Court cannot travel beyond the
decree and the decree and execution should necessarily be as
per the decree only and no identity nor localization of the land
by the Commissioner is permissible and the only remedy for
the decree holder is to have the plaint and decree amended
before asking of execution.

15.     The duty of the Courts do neither cease nor is co-
terminus with the passing of the decrees and orders. The
endeavour of the Courts should not only be in the direction of
granting remedy in deserving cases but also in the direction
of giving adequate and complete remedy and respite for the
persons aggrieved. There is also a sacred responsibility cast
on the courts to see that the fruits of the decrees are
completely received by successful parties. The rights of the
successful decree holders to enforce the decrees in their true
letter and spirit should not be permitted to be invaded nor
allowed to be destroyed and obliterated by the wise and
seasoned litigants in the name of feeble explanations, lame
excuses and untenable technicalities.


16.     The issues in the present revisions are required to be
examined in the light of the above aspects and the principles
laid down in various judgments cited by the learned
Advocates.

17.     In case of VADLAMANI SURYANARAYANA MURTHY v.          
SARIPALLI BALAKAMESWARI AND OTHERS , this Court held        
that the Commissioner can be appointed in executions also in
view of Order 26 Rule 18-A of the Code of Civil Procedure and
further held in the facts and circumstances of the case of the
said case that the appointment of the Commissioners in the
matters of such nature would amount to reopening the entire
issue and may even lead to annulling the decree as a whole.
In the said judgment the judgment debtor filed an application
in E.P. for appointment of Advocate Commissioner. The said
principle, in the considered opinion of this Court, cannot be
applied to the present case in view of the factual and
circumstantial variation the judgments reported in
COLLECTOR OF CUSTOMS, CALCUTTA v EAST INDIA          
COMMERCIAL CO. LTD.,, CALCUTTA AND OTHERS  and P.          
MOOSA KUTTY v UNKNOWN  on which the learned counsel for      
the petitioner placed reliance would not render any assistance
to the petitioner and they have no relevance to the present
situation.

18.     The learned counsel for the respondent cited the
following judgments:
In SHEODHYAN SINGH AND ORS. vs MT. SANICHARA KUER          
AND ORS , the Honble Apex Court held in paragraph Nos.6
and 7 as follows:
6. In the present appeal, the learned counsel for the
respondents does not ask us to go beyond the sale certificate
and the final decree for sale; his contention is that there is a
mere misdescription of the plot number in the two documents
and that the identity of the plot sold is clear from the
circumstances which we have already. set out above. He
relies on Thakar Barmha v. Jiban Ram Marwari(2). In that
case what had happened was that the judgment-debtor
owned 'a mahal in which ten annas share was mortgaged
while the remainder was free from encumbrances. A creditor
of his attached and put up for sale six anns (2) (1913) L.R. 41
I.A. 38. share out of the mortgaged share. The property
attached was sold. When the auction purchasers applied for
the sale certificate they alleged that a mistake had been
made in the schedule of the property to be sold in that the
word "not" had been omitted from the description of the six
annas share and that the property should have been
described as being six annas not mortgaged. This prayer of
theirs was allowed by the executing court rind the appeal to
the High Court failed. On appeal to the Privy Council, it was
held that in a judicial sale only the property attached can be
sold and that property is conclusively described in and by
the schedule to which the attachment refers, namely, the six
annas share subject to an existing-mortgage. The Privy
Council therefore allowed the appeal and observed that a
case of misdescription could be treated as a mere
irregularity, but the case before them was a cue of identity
and not of misdescription. It was pointed out that a property
fully identified in the schedule may be in some respects
misdescribed, which would be a different case. Thus the
effect of this decision is that where there is no doubt as to
the identity and there is only misdescription that could be
treated as a mere irregularity. Another case on which
reliance has been placed on behalf of the respondents is
Gossain Das Kundu v. Mrittunjoy Agnan Sardar(3). In that
case the land sold was described by boundaries and area;
but the area seems to have been incorrect. It was held to be
a case of misdescription of the area and the boundaries were
held to prevail.
7.      We are of opinion that the present case is analogous
to a case of misdescription. As already pointed out the area,
the khata number and the boundaries all refer to plot No.
1060 and what has happened is that in writing the plot
number, one zero has been missed and 1060 has become  
160. It is also important to remember that there is no plot
bearing No. 160, in khata No. 97. (3) (1913) 18 C. L. J. 541.
In these circumstances we are of opinion that the High Court
was right in holding that this is a case of misdescription only
and that the identity of the property ,;old is well established
namely, that it is plot No. 1060.' The matter may have been
different if no boundaries had been given in the final decree
for sale as well as in the sale certificate and only the plot
number was mentioned. But where we have both the
boundaries and the plot number and the circumstances are
as in this case, the mistake in the plot number must be
treated as a mere misdescription which does not affect the
identity of the property sold. The contention of the appellants
therefore with respect to this plot must fail.

19.     In BHAVAN VAJA AND ORS. vs SOLANKI HANUJI        
KHODAJI MANSANG , wherein it is held in paragraph No.19 as  
follows:
19. It is true that an 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 those words
came to be used. That is the plain duty of the execution court
and if that court fails to discharge that duty it has plainly
failed to exercise the jurisdiction vested in it. Evidently the
execution court in this case thought that its jurisdiction began
& ended with merely looking at the decree as it was finally
drafted. Despite the fact that the pleadings as well as the
earlier judgments rendered by the Board as well as by the
appellate court had been placed before it, the execution court
does not appear to have considered those documents. If one
reads the order of that court, it is clear that it failed to
construe the decree though it purported to have construed the
decree. In its order there is no reference to the documents to
which we have made reference earlier. It appears to have
been unduly influenced by the words of the decree under
execution. The appellate court fell into the same error. When
the matter was taken up in revision to the High Court, the
High Court declined to go into the question of the construction
of the decree on the ground that a wrong construction of a
decree merely raises a question of law and it involves no
question of jurisdiction to bring the case within Section 115,
Civil Procedure Code. As seen earlier in this case the
executing court and the appellate court had not construed the
decree at all. They had not even referred to the relevant
documents. They had merely gone by the words used in the
decree under execution. It is clear that they had failed to
construe the decree. Their omission to construe the decree is
really an omission to exercise the jurisdiction vested in them.



 20.    In CHAKKA RANGA RAO vs MOLLA MUSTARI BANU ,          
wherein it is held in paragraph Nos.4 to 6 as follows:
4. Since it is well known that Executing Court can look into
the plaint for understanding the decree, I have requested the
learned Counsel for the revision petitioner to produce a
certified copy of the plaint. The learned Counsel produced a
certified copy of the plaint. The averments in the plaint show
that the portion shown as A.B.C.D. and E.F.G.H. in the plan
attached thereto belongs to the plaintiff and that the portion
shown as B.E.G.D. in that plan belongs to defendant. The
case of the respondent (plaintiff) is that the revision petitioner
(defendant) who has property in between his two plots had,
while constructing his house encroached into the sites
belonging to him, which are shown as A.B.C.D and E.F.G.H.
Unfortunately, the plaint plan does not contain
measurements of the sites belonging to the parties, but the
area of the portions marked as I.J.K.L. and M.N.O.P therein
is shown as 5 Sq. yards each with rough measurements. It is
difficult to identify those particular portions, because,
distances from the eastern and western boundary of the
plots belonging to the plaintiff, to locate them are not
mentioned in the plaint plan.
5. The Court below was in error in dismissing the petition on
the assumption that the provisions of Order 26 do not apply
to proceedings in executing, because Order 26 Rule 18-A,
clearly lays down that the provisions of that order also apply
to proceedings in execution of a decree or order.
6. Here I feel it appropriate to refer to the observations of the
Apex Court in Prathiba Singh v. Shanti Devi Prasad of its
judgment reading ...Afterall a successful plaintiff should not
be deprived of the fruits of decree. Resort can be had to
Section 152 or Section 47 CPC depending on the facts and
circumstances of each case - which of the two provisions
would be more appropriate, just and convenient to invoke.
Being an inadvertent error, not affecting the merits of the
case, it may be corrected under Section 152 CPC by the
Court which passed the decree by supplying the omission.
Alternatively, the exact description of decretal property may
be ascertained by the Executing Court as a question relating
to execution, discharge or satisfaction of decree within the
meaning of Section 47 CPC. A decree of a competent Court
should not, as far as practicable, be allowed to be defeated
on account of an accidental slip or omission....
In this case, since the dispute is with regard to the actual
area encroached by the defendant, it would be appropriate to
appoint an Advocate Commissioner to take measurements of  
the portions shown as A.B.C.D and E.F.G.H in the plaint
plan, with reference to the title deeds dated 11-8-1977 and
10-4-1980 of the respondent (plaintiff) and also the title
deeds of the revision petitioner (defendant) under which he
acquired B.E.G.D portion of the plaint plan, with the help of a
qualified Surveyor. If the areas and portions purchased by
the respondent and revision petitioner are identified,
localized and demarcated, the area encroached by the
revision petitioner into the site belonging to the respondent
can easily be known. So it is just and expedient to appoint a
Commissioner as such appointment serves the interest of
justice.


21.     In ROCKY TYRES AND ORS. vs AJIT JAIN AND ANR. ,      
wherein it is held in paragraph No.18 as follows:
18. It is settled principle of law that it is not incumbent upon
the executing Court that it must put to trial every objections
which are filed in any execution proceedings, even if prima
facie they appear to be frivolous, vaxatious and arc only
intended to delay the execution and frustrate the procedure
of law or where it amounts to an abuse of the process of the
Court. In this regard reference can be made to a judgment of
this Court in Execution Second Appeal No. 2333 of 1996,
Bhagwan Singh v. Parkash Chand, decided on 7-11-1996.
The Court after detailed discussion and following the
principles enunciated by the Hon'ble Supreme Court of India
in the cases of Babu Lal v. Raj Kumar, JT 1996(2) SC 716 :
(AIR 1996 SC 2050), Munshi Ram v. Delhi Administration.
AIR 1968 SC 702 : (1968 Cri LJ 806). B. Gangadhar v. B. G.
Rajalingam, AIR 1996 SC 780 : (1996 AIR SCW 117) and  
noticing judgments of various High Courts, held as under :--
"Now for a considerable period it is not only the judicial trend
which has declined to interfere to protect unlawful
possession or possession of ranked trespasser etc. but, on
the other hand, judicial anxiety has been to give effective
relief to the successful parties by expeditious execution of
decrees in favour of the parties. Unnecessary prolongation of
litigation sometimes results even in frustrating the decree
itself. Such attempt on the part of the objector to frustrate a
decree is a mischief which has to be prevented by due
process of law and expeditious decision of such ill-founded
and fri volous objections would also be in the interest of
justice and within the permissible field of jurisdiction of the
execution."
"If frivolous objections of the present kind are permitted to
unreasonably and un-necessarily prolong the delivery of
possession to a decree-holder in accordance with law, it
would certainly amount to putting a premium on abuse of
process of law."

22.     In B.T. GOVINDAPPA vs B. NARASIMHAIAHAIR , wherein      
it is held in paragraph No.3 as follows:
3. This is one of those eases where the execution of a decree
is attempted to be stalled on mere technicalities. The suit
itself was keenly fought out by the petitioner. The mailer was
carried through three courts. Thereafter when the execution
is taken, technical pleas are raised as if the court is
precluded from taking note of the actual state of affairs and
conveying the property with a proper sale deed describing
the actual boundaries. It is not as if there was any dispute
as to the properly in regard to which specific performance
was sought. It was not in dispute that the properly covered
by Ext.P2 and that sold as per Ext. D2 was one and the
same. That there was a mistake in the boundary description
in Ext.P2 is also clear from the observations in para 13 of the
judgment in the suit. The plaintiff is entitled, in a suit for
specific performance, to have the property agreed to be said
to him conveyed with a proper, correct and effective deed of
sale. When there is no dispute regarding the identity of the
properly, there is no reason why the actual boundaries of the
properly, as understood by all the parties, should not be
incorporated in the sale deed to avoid any possible confusion
in future. It is not as if by doing so the court is traversing
beyond the decree or causing any prejudice to any of the
parties or conveying property not agreed to be conveyed. In a
case of this nature the courl is bound to carry out and
implement its decree in accordance with its tenor, which in
turn would imply that the property should be correctly
described with the proper boundaries. That is all that has
been done by the lower court in approving the draft sale
deed. The plaintiff has only incorporated the boundaries from
Ext. D2, the sale deed in favour of the petitioner. In the
absence of any dispute that this was the property which was
the subject matter of Ext.P2 also, the lower court has only
acted rightly in approving the draft sale deed.


23.    
24.     In the instant case the entire effort of the judgment
debtor is obviously to get the suit claim frustrated, which
cannot be permitted.

25.     For the aforesaid reasons and having regard to the
principles laid down in the above-referred judgments and
taking into consideration the totality of the circumstances
these revisions are dismissed. There shall be no order as to
costs. The Miscellaneous Petitions, if any, pending in these
Civil Revision Petitions shall stand closed.
_________________  
A.V. SESHA SAI, J
March 30, 2015

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Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.