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2004 DIGILAW 864 (MAD)

Retnasawamy v. Justin

2004-07-09

M.KARPAGAVINAYAGAM

body2004
ORDER: The petitioner is the son of the plaintiff in the suit. The suit was filed for redemption and partition. After preliminary decree, an Advocate Commissioner was appointed to measure the property and file a report. Accordingly, the report was filed, allotting plot-A in the Commissioner’s plan to the plaintiff, in the final decree proceedings. Thereafter, the plaintiff filed an execution petition for taking delivery of the property at Plot-A allotted to him. Accordingly, delivery was ordered on 19.2.2004. The Amin appointed by the Court visited the suit property and delivered Plot-A to him on 21.2.2004. At that stage, the 41st defendant in the suit filed a petition before the Executing Court in E.A.No.59 of 2004 in O.S.No.28 of 1964, requesting the Court to pass an order not to record the delivery, since the delivery order was passed without notice to necessary parties. 2. Enquiry was conducted in the said petition. The Amin was examined. On behalf of the respondent herein, the 41st defendant (the petitioner in E.A.), he himself was examined as a witness. Then the Executing Court concluded that the extent measured by the Amin for delivery is more than the extent mentioned in the final decree and as such, the same is deviated from the final decree. The Executing Court ultimately concluded that the delivery alleged to have been effected by the Amin, cannot be recorded. This order is under challenge before this Court by the plaintiff. 3. According to the plaintiff, already the plaintiff had taken delivery of possession in Plot-A on 21.2.2004 itself and all that remains to be done is to record delivery and it is purely an administrative order. As such, the lower Court is wrong in passing an order not to record the delivery. It is also submitted that the Executing Court cannot go beyond decree. 4. To substantiate the above contention that the rule that the Executing Court cannot go behind the decree, prevails, learned counsel for the petitioner has cited a judgment of the Supreme Court reported in Rafique Bibi v. Sayed Waliuddin, (2004)1 S.C.C. 287 . 5. It is also submitted that the Executing Court cannot go beyond decree. 4. To substantiate the above contention that the rule that the Executing Court cannot go behind the decree, prevails, learned counsel for the petitioner has cited a judgment of the Supreme Court reported in Rafique Bibi v. Sayed Waliuddin, (2004)1 S.C.C. 287 . 5. On the other hand, learned counsel for the respondent/caveator, would cite number of authorities to show that the Executing Court has got power to ascertain and rectify the mistake with reference to the exact description of decretal property as a question relating to execution, discharge or satisfaction of the decree within the meaning of Sec.47 of the Civil Procedure Code. The following are the authorities in support of the said submission: (i) Ramana v. Nallaparaju, (1956)1 M.L.J. 71 (S.C.): A.I.R. 1956 S.C. 87: 1956 S.C.J. 101; (ii) Padmanabha v. Padmanabha, A.I.R. 1959 Ker. 401; (iii) Shreevastava v. Veena, (1967)1 S.C.R. 147 ; (iv) Bhavan Vaja and others v. S.H.K.Mansang, (1973)2 S.C.C. 40 ; (v) Gopalkrishna Kammath v. R.Bhaskar Rao, A.I.R. 1989 Ker. 251; (vi) M/s.Woolways vs. Central Bank of India, Chandigarh, A.I.R. 1990 P. and H. 92; (vii) Babul Ali v. Khirada Dutta, A.I.R. 1993 Gau. 56; (viii) N.S.S.Narayana Sarma v. M/s.Goldstone Exports (P) Limited, A.I.R. 2002 S.C. 251; (ix) Gulabrao Balwantrao Shinde v. Chhabubai Balwantrao Shinde, A.I.R. 2003 S.C. 160; (x) Pratibha Singh v. Shanti Devi Prasad, A.I.R. 2003 S.C. 643. 6. I have carefully considered the submissions made by learned counsel for the parties and also gone through the impugned order and the typed set of papers. 7. It is settled law that the plenary power conferred by Sec.47 of the C.P.C. upon the Court executing the decree to determine all questions arising between the parties to the suit in which the decree was passed and relating to the execution, discharge or satisfaction of the decree, is not thereby affected. Sec.47 of the C.P.C. indicates the salutary rule that all questions relating to execution, discharge or satisfaction of the decree, shall be determined not by a separate suit, but in execution of the decree. 8. Under those circumstances, it cannot be contended that the Executing Court cannot correct the error committed in the execution proceedings. The decree of a competent Court should not be allowed to defeat on account of an accidental slip or omission. 9. 8. Under those circumstances, it cannot be contended that the Executing Court cannot correct the error committed in the execution proceedings. The decree of a competent Court should not be allowed to defeat on account of an accidental slip or omission. 9. In the light of the above principle laid down by various Courts, including the Apex Court, the finding rendered by the Executing Court that the alleged delivery by Amin of the area of with more than the extent mentioned in the final decree, cannot be recorded, in my view, is perfectly correct. The evidence of Amin in the cross-examination as well as the evidence of the 41st defendant as P.W.1, would make it clear that the correct measurements have not been done by the Amin and the Amin was not able to say whether the exact extent of area as provided in the final decree, has been delivered. 10. Under those circumstances, the Executing Court cannot record delivery. It is open for the petitioner to file a fresh application to direct the Amin to go and visit and take suitable measurements with the help of a Surveyor to enable the Executing Court to pass further orders. 11. The civil revision petition is dismissed accordingly. No costs. Consequently, C.M.P.No.9344 of 2004 is also dismissed.