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2002 DIGILAW 347 (AP)

M. A. Rasheed v. T. S. Mahaboob Basha

2002-03-01

body2002
G. ROHINI, J. ( 1 ) THIS Civil Revision Petition arises out of execution proceedings in furtherance of a money decree obtained by the respondent herein. ( 2 ) THE judgment-debtors in E. P. No. 39 of 1997 are the petitioners in this Revision petition which is directed against the order dated 14-11-2000 made in E. A. No. 56 of 2000 in E. P. No. 39 of 1997 on the file of the court of the VII Senior Civil Judge, hyderabad permitting the decree holder to amend the schedule to the Execution petition. ( 3 ) THE facts/ which are not in dispute and relevant for the purpose of determination of the question raised in this Revision Petition, are as follows: the respondent herein filed OS. No. 111 of 1993 on the file of the Court of the principal Subordinate Judge, Kurnool against the petitioners herein for recovery of rs. 8,17,990/- and the. same was decreed on 14-11-1996. Pending the said suit, the plaintiff filed LA. No. 308 of 1993 under order 38, Rule 5 of CPC and got attached a house of the defendants before judgment. After the suit was decreed the plaintiff- decreeholder got the decree transferred to court of the VII Senior Civil Judge, City civil Court, Hyderabad and filed E. P. No. 39 of 1997 seeking sale of the house property of the judgment-debtors which was attached pending the suit. ( 4 ) WHILE so, the younger brother of the judgment-debtor No. 1, one MA. Majeed filed a claim petition, E. A. No. 66 of 1997 contending that he is the owner of the southern portion of the E. P. Schedule property admeasuring 166 Sq. yards. According to him he got the said portion by way of partition, and therefore, sought to raise the attachment in respect of the said southern portion of the E. P. Schedule property. The said E. A. No. 66 of 1997, after due enquiry, was allowed by order dated 22-2-2000 and the attachment of the southern portion of the EP Schedule property was raised. The sister of judgment- debtor No. l by name Rafiqunnisa also filed another claim petition. E. A. No,68 of 1997 claiming ownership in respect of northern portion of the suit schedule property admeasuring 154 Sq. yards alleged to be gifted to her under a gift deed dated 8-6-1992. The sister of judgment- debtor No. l by name Rafiqunnisa also filed another claim petition. E. A. No,68 of 1997 claiming ownership in respect of northern portion of the suit schedule property admeasuring 154 Sq. yards alleged to be gifted to her under a gift deed dated 8-6-1992. However, the said E. A. No. 68 of 1997 was dismissed by order dated 22-2-2000 and the said order has become final. Thereafter the decreeholder pressed for further proceedings in the Execution petition by bringing the attached property to sale. The judgment-debtors raised an objection stating that in view of the fact that the attachment of southern portion of the property was raised, the E. P. schedule property cannot be brought to sale. In the circumstances, the decree holder filed E. A. No. 56 of 2000 seeking amendment of the e. P. schedule property by deleting the southern portion of the schedule property in respect of which the attachment was raised by the Court by order dated 22-2-2000 in e. A. No. 66 of 1997. The said application was contested by the judgment-debtors stating that the application is not maintainable. ( 5 ) THE court below by order dated 14-11-2000 allowed E. A. No. 56 of 2000 holding that the objection raised by the judgment-debtors is not tenable. Aggrieved by the said order the judgment debtors have come up with the present Civil Revision Petition. ( 6 ) HEARD the learned counsel for the petitioners as well as the learned counsel for the respondent. ( 7 ) THE learned counsel for the petitioners mainly contends that the petition for amendment of Execution Petition is not maintainable since the provisions either under Order 6 Rule 17 or Order 21 Rule 64 of CPC are not applicable. Therefore, according to the learned counsel for the petitioners the court below has no jurisdiction to allow amendment of execution Petition and the order under revision is liable to be set aside. The learned counsel for the respondent (sic. petitioners) submits that the only course available to the decreeholder is to file a fresh Execution Petition. Therefore, according to the learned counsel for the petitioners the court below has no jurisdiction to allow amendment of execution Petition and the order under revision is liable to be set aside. The learned counsel for the respondent (sic. petitioners) submits that the only course available to the decreeholder is to file a fresh Execution Petition. ( 8 ) ON the other hand the learned counsel for the respondent submits that the decreeholder has not sought for any new relief in the Execution Petition and in the facts and circumstances of the case the amendment sought cannot be said to be impermissible and the Court below has rightly allowed the application and therefore, the order under Revision does not warrant any interference. ( 9 ) HAVING regard to the rival contentions raised by the parties, the points that arise for consideration are whether an application for amendment of Execution Petition is maintainable and whether the order under revision is sustainable? ( 10 ) ORDER 6 Rule 17 of CPC applies to amendment of pleadings with reference to plaint or written statement as defined under rule 1 of Order 6. Therefore, obviously order 6, Rule 17 does not attract for amendment of Execution Petition. Similarly, order 21 of CPC which deals with execution of decrees and orders does not contain any specific provision with regard to amendment of the Execution Petition. Rule 17 of Order 21 of CPC though provides for amendment, on a plain reading of sub- rules (1) and (2) it is clear that it contemplates only correction or defects by the Court in the circumstances stated thereunder. ( 11 ) THE learned counsel for the respondent placing reliance upon Order 21 rule 64 of CPC contends that under the said provision the Court is competent to allow amendment of an Execution Petition. The said rule though empowers the executing court to direct sale of only a portion of the property attached which is necessary to satisfy the decree, it cannot be said that the said power can be extended for amendment of the Execution Petition at the instance of the decreeholder. ( 12 ) HOWEVER the procedural provisions always enable the courts to pass appropriate orders consistent with justice and equity to render substantial justice to the parties. ( 12 ) HOWEVER the procedural provisions always enable the courts to pass appropriate orders consistent with justice and equity to render substantial justice to the parties. The courts can, in exercise of the express power conferred under Section 153 of CPC and the inherent powers under Section 151 of CPC allow the necessary amendment to the execution petition to meet the ends of justice and to decide the real questions in issue provided that no prejudice is caused to the other party which cannot be compensated in costs. ( 13 ) A Full Bench of this court in B. Seshaiah v. B. Veerabhadrayy, has considered the scope of amendment to execution Petition and held as follows: ". . . Apart from Order 21 Rule 17 of cpc Section 153 confers very wide powers on the courts in matters relating to amendment. Obviously the object of the section in allowing amendments is to minimise litigation and avoid multiplicity of proceedings and also to see that the merest technicality may not be allowed to stand in the way of substantial justice. Hence the Court has power to allow all necessary amendments for deciding the real question at issue between the parties provided of course that no injury or injustice is caused to the opposite party or the injury, if any, is such as can be sufficiently compensated for by costs or otherwise. " ( 14 ) THE Full Bench while holding that the term proceeding employed under Sec. 153 of CPC is of wide import and must be construed as including any application to a court of justice, however made, in the enforcement of rights, for reliefs, for redress of injuries, or for any other remedial object also reiterated that execution of a decree is a proceeding in a suit and consequently section 153 of CPC would apply to execution proceedings. The Full Bench has also made it clear that in peculiar and special circumstances an amendment may be allowed even where it has the effect of depriving the other side of his right to plead limitation. ( 15 ) THEREFORE, I do not find any substance in the contention raised by the learned counsel for the petitioners that amendment of the execution petition is not permissible. ( 15 ) THEREFORE, I do not find any substance in the contention raised by the learned counsel for the petitioners that amendment of the execution petition is not permissible. The facts of the case on hand make it clear that the amendment was necessitated consequent to raising of attachment in respect of part of E. P. Schedule pro perty in pursuance of the orders in E. A. No. 66 of 1997. In the circumstances to avoid any ambiguity in the sale proceedings the decreeholder has rightly sought for an amendment to E. P. Schedule by deleting a portion of the schedule property in respect of which attachment was raised. It is also necessary to point out that the amendment sought was not for introducing a new relief/ but only for the purpose of deleting a portion of the schedule property from execution. Further the question of limitation does not arise since the suit was decreed only on 14-11-1996. Therefore no prejudice is caused to the judgment-debtor and the court below has rightly allowed the amendment. ( 16 ) FOR the reasons stated supra, it cannot be said that the court below exercised the jurisdiction not vested in it by law. Accordingly the Civil Revision Petition is dismissed. No order as to costs.