When the above boundaries mentioned in the execution petition are compared with the boundaries mentioned in the plaint and decree in the suit, they are not tallying.- liberty to approach the Court that passed the decree with a petition for making appropriate corrections in the judgment and consequently, in the decree also, to enable him to realize the fruits of the decree obtained by him.= Even according to the respondents also, the boundaries are not tallying and for any mistake crept in the decree in the original suit, it is for the decree-holder to file a petition under Section 152 of CPC for amendment of decree and judgment and also plaint, which passed decree. But without filing the same, the executing court cannot order delivery of possession of property with the boundaries other than mentioned in the decree in original suit. No doubt, decree holder cannot be denied fruits of decree in his favour, but at the same time, the executing Court cannot go beyond the decree in original suit and grant relief to the decree holder by delivering the property with different boundaries other than the boundaries mentioned in the decree as well as in execution petition. However, it is open for the respondent/decree- holder to file necessary application before the Court, which passed the decree and judgment, for amending the boundaries in the schedule of property in the plaint as well as in the decree. Since the suit is of the year 1992, as and when application is filed by the respondent/decree holder, the same shall be disposed of in accordance with law, as expeditiously as possible preferably within a period of three months from the date of application.
THE HONBLE SRI JUSTICE A.RAJASHEKER REDDY
C.R.P. No.1415 of 2011
02-06-2016
Smt. Fathima Bi and another.... Petitioners
Smt. Julekha Bi (died) by her LR Chinna Allabakash....Respondent
Counsel for the Petitioner: Sri K.V.Raghuveer, Advocate
Counsel for the Respondents: Sri B.Vijay Bhasker, Advocate
>HEAD NOTE:
? Cases referred
2007 (1) ALD 367
2 (1996) 4 Supreme Court Cases 533
3 (2009) 2 Supreme Court Cases 294
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY
C.R.P. No. 1415 OF 2011
ORDER :
This Civil Revision Petition is filed against the order and
decree in E.P.No.71 of 2004 in O.S.No.23 of 1992 dated
28.01.2011, wherein the Court below ordered delivery of
possession by 14.02.2011 in respect of the property bearing door
No.17/241 in Yemmiganur with boundaries i.e., East: Hut
bearing door No.17/240 of Jabbar Sab, West: House bearing
No.17/242 belongs to decree holder, North: Hut bearing
No.17/241 then CC road; South: Rastha.
2. Heard Sri K.V.Raghuveer and Sri B.Purusotham Reddy,
learned counsel for the revision petitioners and Sri Butta Vijay
Bhasker, learned counsel on behalf of the respondent.
3. The main contention of the learned counsel for the revision
petitioners is that the decree holder himself could not identify the
schedule property as per the decree, as such, the Court below
should not have allowed the decree holder to amend the plaint
schedule property in execution proceedings. The decree holder
has changed boundaries of the schedule property from time to
time and the boundaries mentioned in the decree, advocate
commissioners report and EP proceedings are totally different.
He would further contend that unless judgment of Court below is
suitably corrected, the decree holder cannot alter the decree and
that the decree holder has to approach the Court which passed
decree with a petition to make appropriate corrections in
judgment as also in decree to enable him to realize the fruits of
decree passed in his favour. In support of his contention, he
relied on the judgment reported in Yempalla Ramaiah v.
Pallamparthi Krishna Reddy and others . He would further contend
that even if the decree holder files an application under Order 47
Rule 1 and Section 151 CPC, the executing Court cannot go
behind decree and amend the same. In support of his
contention, he relied on the judgments reported in Bai Shakriben
(dead) by Natwar Melsingh and others v. Special Land Acquisition Officer
and another and Deepa Bhargava and another v. Mahesh Bhargava and
others .
4. Learned counsel for the respondent-decree holder
contended that the Court below has rightly directed delivery of
possession of property as the boundaries mentioned in the
warrant in E.A.No.68 of 2008 are tallying with the boundaries
mentioned in the Commissioners report. He would further
contend that the decree holder has not changed boundaries of
the schedule property.
5. As is well known, troubles of decree holders start when
they proceed to execute the decree. I do not find any legal
principle that has been adverted to by the executing Court in
ordering delivery of property, with different boundaries other
than mentioned in the original decree, in execution petition. The
decision of the executing Court is wholly without jurisdiction.
This revision petition arising out of execution proceedings, has a
checkered history, wherein the original suit was filed in the year
1992 i.e., OS No.23 of 1992. After the same is decreed on
14.07.1997, the defendants preferred AS No.41 of 1997, which
was also dismissed on 06.02.2004 on the file of Senior Civil
Judges Court, Adoni. Aggrieved by the decree in first appeal
i.e., AS No.41 of 1997, the judgment debtors preferred SA
No.1526 of 2005, which was also dismissed on 13.12.2005. By
virtue of which, the decree in OS No.23 of 1992 dated 14.07.1997
has attained finality.
6. It is pertinent to note that during pendency of first appeal,
the decree holder filed E.P.No.71 of 2004, wherein the judgment
debtor filed E.A.No.47 of 2006 under Section 47 and 151 of CPC
praying to dismiss the execution petition as non executable and
nullity, which was disposed of on 26.06.2006. Aggrieved by the
same, the judgment debtors/revision petitioners filed
C.R.P.No.5182 of 2006. Though this Court granted interim stay,
but before the same was communicated to the executing Court,
the EP No.71 of 2004 itself was disposed of on 30.10.2006.
Later, on memo filed by the counsel, the matter was listed on
08.11.2006 for filing certified copy of the order of stay granted by
this Court. The matter was adjourned for various reasons, the
certified copy of stay granted by this Court in CRP No.5182 of
2006 was received by the Executing Court on 10.11.2006. When
the matter was posted on 05.01.2007, it was reported that the
revision petition i.e., CRP No.5182 of 2006 was dismissed on
06.12.2006 as infructuous and judgment debtors preferred
appeal, the matter was posted to 22.01.2007 at the request of the
judgment debtors. After several adjournments, even though it
was referred to Lok Adalat for compromise, when the matter was
not settled at Lok Adalat, it was posted to 27.04.2007 before the
executing Court.
7. A perusal of the docket proceedings in the Execution
Petition before the Court below shows that EP schedule property
was ordered to be delivered to the decree holder at first instance
on 30.10.2006 and again on 23.01.2008, a detailed docket order
was passed for delivery of EP schedule property by 25.01.2008.
Subsequently, the executing Court found that delivery warrant
was not affected as house number and boundaries of schedule
property are not tallying. On 07.03.2008, EA No.68 of 2008 was
filed under Order 26 Rule 9 of CPC before the executing Court for
appointment of Senior Advocate Commissioner to inspect the
schedule mentioned property. After hearing both sides, the EA
was allowed on merits and in pursuant thereto, an advocate
commissioner was appointed. Upon filing of report by the
Advocate Commissioner on 09.05.2008 along with rough sketch,
work memos by the counsels, the Court below allowed EA
directing to deliver EP schedule property by mentioning the
following boundaries. i.e., the site towards south of hut bearing
door No.17/241 in Yemmiganur with further boundaries as:
East: Hut bearing door No.17/240 of Jabbar Sab
West: House bearing door No.17/242 belongs to
decree holder
North: Hut bearing No.17/241 then CC road
South: Rastha.
8. When the above boundaries mentioned in the execution
petition are compared with the boundaries mentioned in the
plaint and decree in the suit, they are not tallying. Though the
executing Court ordered delivery of schedule property twice,
delivery could not be affected since house number and
boundaries of the properties are not tallying. Now, the Court
below by giving different boundaries than mentioned in the
decree in original suit, ordered for delivery of possession basing
on the advocate Commissioners report. All these facts go to
show that the Executing Court allowed the EP with different
boundaries than mentioned in original decree.
9. In Yempalla Ramaiah v. Pallamparthi Krishna Reddy and others
(supra), a learned Single Judge of this Court held as follows:
5. Even if I follow the ratio in TIKO case (1 supra) and treat the
petition
as a petition to amend the decree filed on the original side, but not a
petition in execution, in as much as the decree as amended, as per the
prayer in this petition would not be in agreement with the operative
portion of the judgment it may lead to complications. So unless the
judgment is corrected no useful purpose would be served in correcting
the decree. So the order under revision is set aside. Respondents are at
liberty to approach the Court that passed the decree with a petition for
making appropriate corrections in the judgment and consequently, in the
decree also, to enable him to realize the fruits of the decree obtained by
him.
10. In Deepa Bhargava and another v. Mahesh Bhargava and others
(supra), the Honble Supreme Court held that the executing Court
cannot go behind the decree and has no jurisdiction to travel
beyond the decree and modify the same. Even assuming that
the term stipulating payment of interest is penal in nature, the
executing court was bound by the terms of the decree.
11. In view of law laid down by this Court as well as Apex
Court in the above decisions, the executing Court cannot travel
beyond the decree passed in original suit. Even according to the
respondents also, the boundaries are not tallying and for any
mistake crept in the decree in the original suit, it is for the
decree-holder to file a petition under Section 152 of CPC for
amendment of decree and judgment and also plaint, which
passed decree. But without filing the same, the executing court
cannot order delivery of possession of property with the
boundaries other than mentioned in the decree in original suit.
No doubt, decree holder cannot be denied fruits of decree in his
favour, but at the same time, the executing Court cannot go
beyond the decree in original suit and grant relief to the decree
holder by delivering the property with different boundaries other
than the boundaries mentioned in the decree as well as in
execution petition. The Executing Court instead of allowing
application, should have directed the decree-holder to approach
the original court for amendment of boundaries in the decree.
For the reasons aforementioned, the impugned order of the
executing Court cannot be sustained and same is set aside
accordingly. However, it is open for the respondent/decree-
holder to file necessary application before the Court, which
passed the decree and judgment, for amending the boundaries in
the schedule of property in the plaint as well as in the decree.
Since the suit is of the year 1992, as and when application is
filed by the respondent/decree holder, the same shall be disposed
of in accordance with law, as expeditiously as possible preferably
within a period of three months from the date of application.
Accordingly, this Civil Revision Petition is allowed. No
costs. As a sequel thereto, miscellaneous petitions, if any
pending in this CRP, shall stand closed.
_______________________
A.RAJASHEKER REDDY, J
02.06.2016.
C.R.P. No.1415 of 2011
02-06-2016
Smt. Fathima Bi and another.... Petitioners
Smt. Julekha Bi (died) by her LR Chinna Allabakash....Respondent
Counsel for the Petitioner: Sri K.V.Raghuveer, Advocate
Counsel for the Respondents: Sri B.Vijay Bhasker, Advocate
>HEAD NOTE:
? Cases referred
2007 (1) ALD 367
2 (1996) 4 Supreme Court Cases 533
3 (2009) 2 Supreme Court Cases 294
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY
C.R.P. No. 1415 OF 2011
ORDER :
This Civil Revision Petition is filed against the order and
decree in E.P.No.71 of 2004 in O.S.No.23 of 1992 dated
28.01.2011, wherein the Court below ordered delivery of
possession by 14.02.2011 in respect of the property bearing door
No.17/241 in Yemmiganur with boundaries i.e., East: Hut
bearing door No.17/240 of Jabbar Sab, West: House bearing
No.17/242 belongs to decree holder, North: Hut bearing
No.17/241 then CC road; South: Rastha.
2. Heard Sri K.V.Raghuveer and Sri B.Purusotham Reddy,
learned counsel for the revision petitioners and Sri Butta Vijay
Bhasker, learned counsel on behalf of the respondent.
3. The main contention of the learned counsel for the revision
petitioners is that the decree holder himself could not identify the
schedule property as per the decree, as such, the Court below
should not have allowed the decree holder to amend the plaint
schedule property in execution proceedings. The decree holder
has changed boundaries of the schedule property from time to
time and the boundaries mentioned in the decree, advocate
commissioners report and EP proceedings are totally different.
He would further contend that unless judgment of Court below is
suitably corrected, the decree holder cannot alter the decree and
that the decree holder has to approach the Court which passed
decree with a petition to make appropriate corrections in
judgment as also in decree to enable him to realize the fruits of
decree passed in his favour. In support of his contention, he
relied on the judgment reported in Yempalla Ramaiah v.
Pallamparthi Krishna Reddy and others . He would further contend
that even if the decree holder files an application under Order 47
Rule 1 and Section 151 CPC, the executing Court cannot go
behind decree and amend the same. In support of his
contention, he relied on the judgments reported in Bai Shakriben
(dead) by Natwar Melsingh and others v. Special Land Acquisition Officer
and another and Deepa Bhargava and another v. Mahesh Bhargava and
others .
4. Learned counsel for the respondent-decree holder
contended that the Court below has rightly directed delivery of
possession of property as the boundaries mentioned in the
warrant in E.A.No.68 of 2008 are tallying with the boundaries
mentioned in the Commissioners report. He would further
contend that the decree holder has not changed boundaries of
the schedule property.
5. As is well known, troubles of decree holders start when
they proceed to execute the decree. I do not find any legal
principle that has been adverted to by the executing Court in
ordering delivery of property, with different boundaries other
than mentioned in the original decree, in execution petition. The
decision of the executing Court is wholly without jurisdiction.
This revision petition arising out of execution proceedings, has a
checkered history, wherein the original suit was filed in the year
1992 i.e., OS No.23 of 1992. After the same is decreed on
14.07.1997, the defendants preferred AS No.41 of 1997, which
was also dismissed on 06.02.2004 on the file of Senior Civil
Judges Court, Adoni. Aggrieved by the decree in first appeal
i.e., AS No.41 of 1997, the judgment debtors preferred SA
No.1526 of 2005, which was also dismissed on 13.12.2005. By
virtue of which, the decree in OS No.23 of 1992 dated 14.07.1997
has attained finality.
6. It is pertinent to note that during pendency of first appeal,
the decree holder filed E.P.No.71 of 2004, wherein the judgment
debtor filed E.A.No.47 of 2006 under Section 47 and 151 of CPC
praying to dismiss the execution petition as non executable and
nullity, which was disposed of on 26.06.2006. Aggrieved by the
same, the judgment debtors/revision petitioners filed
C.R.P.No.5182 of 2006. Though this Court granted interim stay,
but before the same was communicated to the executing Court,
the EP No.71 of 2004 itself was disposed of on 30.10.2006.
Later, on memo filed by the counsel, the matter was listed on
08.11.2006 for filing certified copy of the order of stay granted by
this Court. The matter was adjourned for various reasons, the
certified copy of stay granted by this Court in CRP No.5182 of
2006 was received by the Executing Court on 10.11.2006. When
the matter was posted on 05.01.2007, it was reported that the
revision petition i.e., CRP No.5182 of 2006 was dismissed on
06.12.2006 as infructuous and judgment debtors preferred
appeal, the matter was posted to 22.01.2007 at the request of the
judgment debtors. After several adjournments, even though it
was referred to Lok Adalat for compromise, when the matter was
not settled at Lok Adalat, it was posted to 27.04.2007 before the
executing Court.
7. A perusal of the docket proceedings in the Execution
Petition before the Court below shows that EP schedule property
was ordered to be delivered to the decree holder at first instance
on 30.10.2006 and again on 23.01.2008, a detailed docket order
was passed for delivery of EP schedule property by 25.01.2008.
Subsequently, the executing Court found that delivery warrant
was not affected as house number and boundaries of schedule
property are not tallying. On 07.03.2008, EA No.68 of 2008 was
filed under Order 26 Rule 9 of CPC before the executing Court for
appointment of Senior Advocate Commissioner to inspect the
schedule mentioned property. After hearing both sides, the EA
was allowed on merits and in pursuant thereto, an advocate
commissioner was appointed. Upon filing of report by the
Advocate Commissioner on 09.05.2008 along with rough sketch,
work memos by the counsels, the Court below allowed EA
directing to deliver EP schedule property by mentioning the
following boundaries. i.e., the site towards south of hut bearing
door No.17/241 in Yemmiganur with further boundaries as:
East: Hut bearing door No.17/240 of Jabbar Sab
West: House bearing door No.17/242 belongs to
decree holder
North: Hut bearing No.17/241 then CC road
South: Rastha.
8. When the above boundaries mentioned in the execution
petition are compared with the boundaries mentioned in the
plaint and decree in the suit, they are not tallying. Though the
executing Court ordered delivery of schedule property twice,
delivery could not be affected since house number and
boundaries of the properties are not tallying. Now, the Court
below by giving different boundaries than mentioned in the
decree in original suit, ordered for delivery of possession basing
on the advocate Commissioners report. All these facts go to
show that the Executing Court allowed the EP with different
boundaries than mentioned in original decree.
9. In Yempalla Ramaiah v. Pallamparthi Krishna Reddy and others
(supra), a learned Single Judge of this Court held as follows:
5. Even if I follow the ratio in TIKO case (1 supra) and treat the
petition
as a petition to amend the decree filed on the original side, but not a
petition in execution, in as much as the decree as amended, as per the
prayer in this petition would not be in agreement with the operative
portion of the judgment it may lead to complications. So unless the
judgment is corrected no useful purpose would be served in correcting
the decree. So the order under revision is set aside. Respondents are at
liberty to approach the Court that passed the decree with a petition for
making appropriate corrections in the judgment and consequently, in the
decree also, to enable him to realize the fruits of the decree obtained by
him.
10. In Deepa Bhargava and another v. Mahesh Bhargava and others
(supra), the Honble Supreme Court held that the executing Court
cannot go behind the decree and has no jurisdiction to travel
beyond the decree and modify the same. Even assuming that
the term stipulating payment of interest is penal in nature, the
executing court was bound by the terms of the decree.
11. In view of law laid down by this Court as well as Apex
Court in the above decisions, the executing Court cannot travel
beyond the decree passed in original suit. Even according to the
respondents also, the boundaries are not tallying and for any
mistake crept in the decree in the original suit, it is for the
decree-holder to file a petition under Section 152 of CPC for
amendment of decree and judgment and also plaint, which
passed decree. But without filing the same, the executing court
cannot order delivery of possession of property with the
boundaries other than mentioned in the decree in original suit.
No doubt, decree holder cannot be denied fruits of decree in his
favour, but at the same time, the executing Court cannot go
beyond the decree in original suit and grant relief to the decree
holder by delivering the property with different boundaries other
than the boundaries mentioned in the decree as well as in
execution petition. The Executing Court instead of allowing
application, should have directed the decree-holder to approach
the original court for amendment of boundaries in the decree.
For the reasons aforementioned, the impugned order of the
executing Court cannot be sustained and same is set aside
accordingly. However, it is open for the respondent/decree-
holder to file necessary application before the Court, which
passed the decree and judgment, for amending the boundaries in
the schedule of property in the plaint as well as in the decree.
Since the suit is of the year 1992, as and when application is
filed by the respondent/decree holder, the same shall be disposed
of in accordance with law, as expeditiously as possible preferably
within a period of three months from the date of application.
Accordingly, this Civil Revision Petition is allowed. No
costs. As a sequel thereto, miscellaneous petitions, if any
pending in this CRP, shall stand closed.
_______________________
A.RAJASHEKER REDDY, J
02.06.2016.
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