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2004 DIGILAW 1548 (AP)

Pola Vishwanadham v. Kalyani Agencies, Warangal

2004-12-27

G.ROHINI

body2004
G. ROHINI, J. ( 1 ) THIS civil revision petition is directed against the order dated 19-2-2004 in EA No. 349 of 2002 in EP No. 366 of 2000 on the file of the Principal Senior civil Judge, Warangal. ( 2 ) THE petitioners herein are the judgment-debtors in EP No. 366 of 2000, which was filed by the respondent herein for execution of the decree in OS No. 118 of 1991 for recovery of amount due from the defendants/judgment-debtors. Pending the suit, the petitioner filed IA No. 690 of 1991 for attachment before judgment of certain properties of the defendants. In the said application the defendants filed an undertaking that they will not sell the said properties, on the basis of which, IA No. 690 of 1991 was closed. It is to be noted that along with the Memo of undertaking the defendants furnished the value of the said property as recorded in the "market value Estimation". After the suit was decreed the plaintiff/decree holder filed e. P. No. 366 of 2000 for attachment and sale of the same property which was specified in the undertaking given by the defendant in IA No. 690 of 1991 i. e. , premises bearing Municipal No. 8/705 to an extent of 142. 29 Sq. meters within the boundaries specified thereunder. The Court below has ordered sale of the E. P. schedule property to be held on 2-6-2002. While so the decree holder/respondent herein filed e. A. No. 349 of 2002 seeking amendment of the E. P. schedule by describing the schedule property as 175 Sq. Yds. , and the extent of construction as 3,064. 62 S. ft. , as recorded in the "market Value Estimation" stating that the E. P. schedule property was described basing on the undertaking given by the judgment-debtor during the pendency of the suit in the application filed for attachment before judgment, however, after the sale of the attached property was ordered it was noticed that certain errors were crept in the description of the E. P. schedule and therefore, the same requires to be amended. The said application filed by the decree holder was opposed by the judgment-debtor contending that the provisions of Order 21 Rule 17 of CPC do not apply and therefore the amendment of the execution petition was prayed for cannot be ordered. The said application filed by the decree holder was opposed by the judgment-debtor contending that the provisions of Order 21 Rule 17 of CPC do not apply and therefore the amendment of the execution petition was prayed for cannot be ordered. The Court below having considered the entire material on record by order dated 19-2-2004 allowed the application, which is under challenge in this revision petition. ( 3 ) I have heard the learned Counsel appearing for both the parties and perused the material on record. ( 4 ) THE learned Counsel for the petitioners vehemently contends that once the execution petition is taken on file and numbered, the Court has no jurisdiction to entertain the amendment petition and therefore the order under revision is illegal and without jurisdiction and liable to be set aside. He submits that at the most the remedy available to the decree holder is to withdraw the execution petition and to file a fresh E. P. rectifying the defects, if any, and the application filed under Order. 21 rule 17 is misconceived and cannot be entertained. ( 5 ) ON the other hand the learned counsel for the respondents submits that since the proposed amendment does not change the nature of location, boundaries or the identity of the E. P. schedule but it is only for the purpose of furnishing more particulars with regard to the E. P. schedule within the four boundaries as shown in the E. P. schedule, the Court below has rightly ordered the petition and therefore the order under revision does not warrant any interference. ( 6 ) IT is to be noted that though the provisions of either Order 6 or Rule 17 or Order 21 Rule 17 of Civil Procedure code do not enable the parties to an execution petition to seek amendment, the law is well settled, that the Courts can in exercise of the power conferred under section 153 of Civil Procedure Code and the inherent powers under Section 151 of civil Procedure Code 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. In the case on hand, the Court below on appreciation of the material on record, found that the amendment sought by the decree holder is only with regard to the description of the property which was already attached by the Court and that the decree holder is not seeking fresh attachment of any other property. It was also found that the decree holder is not seeking amendment of the boundaries of the property but he gives more details about the construction made within the boundaries and that apart the decree holder sought to exclude the machinery placed within the premises. In the circumstances as rightly concluded by the Court below, no prejudice is caused to the judgment-debtor by allowing the amendment. Therefore, in my considered opinion, the Court below has rightly allowed the amendment and it cannot be said that the Court below exercised the jurisdiction not vested in it by law. Thus the order under revision does not suffer from any material irregularity in exercise of jurisdiction vested under law warranting interference by this Court under Section 115 of Civil procedure Code. ( 7 ) ACCORDINGLY, the civil revision petition is dismissed. No costs.