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2002 DIGILAW 116 (CAL)

SAILENDRANATH TAPASWI v. NETAI SUNDAR ACHARYA

2002-02-21

BHASKAR BHATTACHARYA

body2002
BHASKAR BHATTACHARYA, J. ( 1 ) THIS revisional application is at the instance of judgement debtors and is directed against Order No. 12 dated November 29, 2000 passed by the learned Civil Judge, Junior Division, Kalna in title Execution Case No. 1 of 1998 thereby allowing an application under Section 152 of the Code of Civil Procedure read with Section 151 thereof for amendment of the decree passed in Title Suit No. 109 of 1982. ( 2 ) THE opposite party brought against the petitioners in the Court of learned Munsif at kalna a suit being Title Suit No. 109 of 1982 thereby praying for declaration of his right of way and drainage of water from A scheduled property to the Municipal Main Road through b scheduled property and for mandatory injunction directing the defendants to remove the encroachment on B scheduled property by removal of cowshed built thereon. A further prayer for perpetual injunction restraining the defendants from interfering with the plaintiffs aforesaid right over the B scheduled property was also claimed. ( 3 ) SUCH suit was decreed on contest by the learned trial Judge on August 31, 1997. ( 4 ) AN appeal preferred by some of the defendants ended in dismissal. Thus, the decree passed by the learned trial Judge was affirmed and the said decree attained finality. In the plaint of the said suit B scheduled property was described as follows:-"0. 075 feet wide strip of land appertaining to R. S. Plot No. 3170 of Mouza-kalna at its south and 75 feet long from the eastern limit of R. S. Plot No. 2425/3173 at it's west and the Municipal Main road at it's east, lying to the contiguous north of the boundary wall of the kalna Town Co-operative Bank Ltd. " ( 5 ) THE plaintiff put the aforesaid decree into execution thereby giving rise to Title Execution case No. 1 of 1998. After filing of such execution case, the opposite party/decree-holder came up with an application under Section 151 read with Section 152 of the Code of Civil Procedure thereby praying for correction of the description of the B scheduled property. By the said application, the opposite party/decree-holder prayed that in the schedule B, "7. 5 feet wide strip of land" should be mentioned in place of "0. 075 feet". By the said application, the opposite party/decree-holder prayed that in the schedule B, "7. 5 feet wide strip of land" should be mentioned in place of "0. 075 feet". ( 6 ) BY the order impugned in the instant application, the learned Executing Court has allowed such application thereby amending the schedule of the plaint as well as the schedule of the decree. ( 7 ) BEING dissatisfied, the judgement debtors have come up with the instant revisional application. ( 8 ) MR. Roychowdhury, the learned senior counsel appearing on behalf of the petitioners has made two-fold submissions before this Court. The first contention of Mr. Roychowdhury is that the decree passed by the learned trial Judge having been affirmed by the Appellate Court, the learned trial Judge could not amend the said decree. Mr. Roychowdhury next contends that an Executing Court has no right to go beyond the decree and as such in the instant case it acted illegally and with material irregularity in modifying the original decree. In support of such contention Mr. Roychowdhury has placed strong reliance upon the following decisions: -1. Smt. Chandra Kala Devi and Ors. v. The Central Bank of India Ltd. ; 2. Narkulla Venkayya and Anr. v. Noona Satyanarayana and Anr. 3. Bachan Singh and Ors. v. Harbans Kaur; 4. Ramsunder Singh v. Most. Pana Kuer and Ors. ; 5. Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur. ( 9 ) MR. Dasgupta, the learned counsel appearing on behalf of the opposite party/decree-holder has on the other supported the order impugned and has contended that the amendment sought for was merely a correction of a typographical error as will appear from the nature of amendment itself. Thus, the learned Executing Court which is also the original court rightly allowed such prayer. In support of such contention, Mr. Dasgupta relied upon the following decisions:-1. Ramankutty Guptan vs. Avara; 2. Tiko (Smt) and Ors. vs. Lachman. ( 10 ) AFTER hearing the learned counsel for the parties and after going through the materials on record i find that although in the original plaint the B scheduled property was described as a strip of land 75 feet long and"0. 075" foot wide, the description of the width of the said passage was apparently a typographical mistake. 075 foot is equivalent to 0. 9 inch. Therefore, the same was an absurd description. 075" foot wide, the description of the width of the said passage was apparently a typographical mistake. 075 foot is equivalent to 0. 9 inch. Therefore, the same was an absurd description. The opposite party by way of amendment wanted to correct it by making the same as 7. 5 feet. It appears from the judgement of the learned trial Judge by which the suit was decreed that in page 6 thereof, the learned court relied upon the deeds of the plaintiff where the B scheduled property has been mentioned as that of average of 7. 5 feet. The learned trial Judge relied upon such document. Therefore, the learned trial Judge after considering those exhibits wanted to give declaration and injunction in respect of the strip of land which was 7. 5 feet wide. The learned first appellate court below, has affirmed the said decree. Thus, it is apparent that in the body of the judgement the B scheduled property has been rightly described as 7. 5 feet wide whereas decree has been drawn up in accordance with the wrong description given in the plaint according to which the land is only 0. 9 inch wide which is physically absurd. ( 11 ) THUS, the learned Executing Court rightly held that there was an apparent misdescription of the property in the plaint and the real width of the passage would be reflected from the judgement of the learned trial Judge. The learned Executing Court below, therefore, rightly allowed such amendment. ( 12 ) 1 now propose to deal with the decisions cited by Mr. Roychowdhury. In the case of Smt. Chandra Kala Devi and Ors. v. The Central Bank of India Limited, (supra), a decree passed by a trial Court was affirmed by the appellate Court. Subsequently, an application was filed before the trial court for amendment of the decree under section 152 of the Code of Civil Procedure. The same was allowed and such amended decree was put into execution. In execution case, the judgement-debtor raised an objection that the original decree having been affirmed by the appellate Court, the trial Court became functous officio and could not add any further to the decree which has been affirmed by the appellate Court and thus contended that the execution application was not maintain-able. The learned Executing Court turned down such objection. In execution case, the judgement-debtor raised an objection that the original decree having been affirmed by the appellate Court, the trial Court became functous officio and could not add any further to the decree which has been affirmed by the appellate Court and thus contended that the execution application was not maintain-able. The learned Executing Court turned down such objection. Being dissatisfied, the judgment-debtor preferred an appeal before the learned first appellate Court which was also dismissed. In a second misc. appeal before this court, a Division Bench held that once an appeal has been preferred against a decree, the decree which has been subsequently affirmed was in reality the decree of the appellate court and as such technically no application for amendment could be preferred before the learned Executing Court which is the trial court. In spite of the aforesaid fact, the said division Bench did not set aside the order rejecting the application under Section 47 of the code of Civil Procedure but itself corrected the decree as has been done by the learned Trial court. In my view, the present application I being one under Section 115 of the Code of civil Procedure, this Court should not accept such technical plea raised by the judgment-debtor. The order impugned has not occasioned failure of justice nor can it be said that it has caused irreparable injury to the petitioner. If the judgement-debtor is now asked to apply for correction before the learned first appellate Court below which affirmed the decree, the same order will follow. Thus, I am not at all impressed by the aforesaid decision cited by Mr. Roychowdhury. ( 13 ) THE other four decisions viz. Narkulla venkayya and Anr. v. Noona Satyanarayana and Anr. (supra); Bachan Singh and Ors. v. Harbans Kaur, (supra); Ramsunder Singh v. Most. Pana Kuer and Ors. (supra); Lala Brij narain v. Kunwar Tejbal Bikram Bahadur, (supra), lay down the aforesaid principle that once a decree is merged with the appellate court decree, it is the appellate court that is vested with the authority to correct the error. ( 14 ) IN this connection reference may be made to the decision of Supreme Court in the case of Ramankutty Guptan v. Auara (supra), relied upon by Mr. Dasgupta. ( 14 ) IN this connection reference may be made to the decision of Supreme Court in the case of Ramankutty Guptan v. Auara (supra), relied upon by Mr. Dasgupta. In the said case, a suit for specific performance of contract filed by the respondent/vendee was dismissed by the Trial Court but decreed by the learned first appellate court granting one month's time to the respondent to deposit the balance consideration. The respondent deposited the balance amount after expiry of the period of one month but before dismissal of the second appeal. During execution of the decree, application under Section 28 of the Specific Relief Act filed by the appellant on the execution side of the same court in which the original suit was filed for rescinding the contract on ground of default in depositing the balance consideration within the period fixed by Court. It was contended that the decree having been passed by the appellate court, application under Section 28 of the Specific Relief Act was not maintainable before the learned trial Judge. The supreme Court overruled the aforesaid contention and held by relying upon Section 37 of the Code of Civil Procedure that the decree of appellate court would be construed to be the decree passed by the Court of First Instance. It was further held that an appeal was a continuation of the suit. Therefore, when a decree for specific performance has been dismissed by the trial court, but decreed by the appellate court it should be construed to be one passed in the same suit. When the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, Section 28 (1) itself gives power to the court to extend the time on such terms as the court may allow to pay the purchase money or other sum which the court has ordered him to pay. Thus, it was held that an application for extension of time for payment of balance consideration might be filed even in the court of first instance or in the appellate court in the same suit as the decree of the trial court stands merged with that of the appellate Court and such decree was under execution. Thus, it was held that an application for extension of time for payment of balance consideration might be filed even in the court of first instance or in the appellate court in the same suit as the decree of the trial court stands merged with that of the appellate Court and such decree was under execution. It was further pointed out that procedure is the handmaid for justice and unless the procedure touches upon jurisdictional issue, it should be moulded to subserve substantial justice. Thus, technicalities should not stand in the way to subserve substantive justice. ( 15 ) IN this connection further reference may be made to the decision of Supreme Court in the case of Tiko (Smt) and Ors. v. Lachman (supra), where after the passing of a decree for redemption of mortgage, mortgagee filed an application before Executing Court alleging that the area of land mentioned in the decree was wrongly recorded. Thereupon, the mortgagor filed an application before Executing Court for amendment of plaint and decree to correct the area and description of the land. The Executing Court dismissed the application holding that it could not go beyond decree and the High court confirmed the order in revision. Under such circumstances, the Supreme Court held that though technically speaking, the Executing court could not go beyond the decree, the executing Court happened also to be the Court which passed the decree and directed to treat the application as one made before the Original court which passed the decree and to dispose of the same in accordance with law. ( 16 ) THEREFORE, by taking aids of the aforesaid two decisions cited by Mr. Dasgupta, I am of the view that application for amendment of decree filed under Section 152 of the Code having been filed before Executing Court which is also the original court, such technical objection should not be entertained. Even if I now direct the decree-holder to file such application before the original court, the same result will follow. Thus, the decisions cited by Mr. Roychowdhury do not support his clients in any way. ( 17 ) I thus find no reason to interfere with the order passed by the learned court below. The revisional application is thus dismissed. In the facts and circumstances of the case, there will be however no order as to costs. Revision dismissed. .