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2011 DIGILAW 2714 (MAD)

M. S. Munusamy v. G. Venko Sivasakthi

2011-06-10

K.MOHAN RAM

body2011
JUDGMENT :- 1. The Petitioner in the above C.R.P are the Defendants in O.S. No. 599 of 2004 and the Respondents in R.E.P. No. 125 of 2007 and R.E.P. No.308 of 2008 on the file of the District Munsif Court Gobichettipalayam. 2. The Respondent herein, on the basis of a Sale Agreement dated 28.8.2003 said to have been executed by the Petitioners herein filed O.S. No.599 of 2004 before the District Munsif Court, Gobichettipalayam seeking a decree for specific performance of the Agreement of Sale. 3. Though the Petitioners/Defendant filed a Written Statement, they were set ex-parte and an ex-parte decree was passed on 21.4.2007. On 24.11.2008 the Respondent herein filed E.P. No. 125 of 2007 as the Petitioners failed to execute the Sale Deed as per the Decree. 4. The Execution Petition was contested by the Petitioners herein. As directed by the Executing Court a draft Sale Deed was filed by the Respondent and as there was no objection by the Petitioners, the same was approved by the Court and thereafter a fair Sale Deed was filed by the Respondent and the same was sent to the office of the sub-Registrar for registration. The Sub-Registrar returned the Sale Deed as certain particulars were not mentioned in t he schedule of the property. 5. In such circumstances, the Respondent filed E.A. No. 308 of 2008 purportedly under Order 6, Rule 17, and Section 151, C.P.C on 27.8.2008 seeking to amend the schedule in the Execution Petition, draft Sale Deed and fair Sale Deed. 6. The amendment sought for was to include the following particulars namely Town survey Ward: B Block: 39 T.A. No: 4 Old Survey No: 194/A Part Extent: 0.00.62 sq mt 7. In the Affidavit filed in support of the E.A. it is stated that at the time of entering into the Agreement of Sale as well as obtaining the decree, the Respondent was not aware of the particulars now sought to be included by way of amendment which should have been included in the schedule. Only when the Sale Deed was sent to the office of the Sub-Registrar for registration the Sub-Registrar returned the Sale Deed for including the aforesaid details. 8. In such circumstances the Petition is being filed to amend the Execution Petition, draft Sale Deed and the fair Sale Deed. Only when the Sale Deed was sent to the office of the Sub-Registrar for registration the Sub-Registrar returned the Sale Deed for including the aforesaid details. 8. In such circumstances the Petition is being filed to amend the Execution Petition, draft Sale Deed and the fair Sale Deed. By allowing the amendment nature of the Petition, and the case of action will not be changed. If the amendment sought for is not allowed, great hardship will be caused to the Respondent whereas no hardship will be caused to the Petitioners. 9. The Petitioners herein contested the E.A. by filing a Counter Affidavit inter alia contending as follows: a. The reasons stated for seeking amendment are not correct the sale agreement was not executed with an intention to sell the property; the singed blank stamp papers entrusted by the Petitioners as security for the loan obtained by them from the Respondent had been used to create the sale agreement and that was the reason the T.S. No. Block No. etc were not mentioned in the Sale Agreement without seeking the amendment of the Plaint and the decree, it is not open to the Respondent to seek for amendment of the Execution Petition draft Sale Deed and fair Sale Deed. It was further contended that the extent now sought to be included is larger than the extent mentioned in the Plaint. 10. On a consideration of the rival contentions, the Court below allowed the amendment sought for holding that it is not the contention of the judgment-debtors by allowing the amendment different property than the one mentioned in the Plaint will be sold and the Petition has been filed only to add the particulars which were omitted to be mentioned in the Plaint. 11. Being aggrieved by that, the Judgment debtors are before this Court. 12. Heard both. 13. The learned Counsel for the Petitioners made the following submissions. A. No acceptable reasons have been stated in the Affidavit filed in support of the Amendment Petition for seeking the amendment. b. Unless the proposed amendment is carried out in the Agreement of Sale, Plaint and decree, the same cannot be made in the Execution Petition, draft Sale Deed and fair Sale Deed. 14. The learned Counsel further submitted that as per Section 26 of the Specific Relief Act, the suit should have been filed to rectify the sale agreement. b. Unless the proposed amendment is carried out in the Agreement of Sale, Plaint and decree, the same cannot be made in the Execution Petition, draft Sale Deed and fair Sale Deed. 14. The learned Counsel further submitted that as per Section 26 of the Specific Relief Act, the suit should have been filed to rectify the sale agreement. The learned Counsel further submitted that the Executing Court cannot go behind the decree and therefore the amendment sought for cannot be allowed. 15. The learned Counsel further submitted that the Respondent had not been diligent enough to include the particulars now sought to be added by way of amendment in the plaint itself. It has not even been stated in the affidavit that in spite of due diligence the said particulars could not have been incorporated in the Plaint and therefore as per Order 6 Rule 17, C.P.C. the amendment sought for ought not to have been allowed by the Court below 16. In support of this contention the learned Counsel relief upon the decision reported in Vidyabai and others v. Padmalatha and another 2009 (2) SCC 409 . The facts of the said decision are as follows: “In a Suit for specific performance of contract filed by the Appellant-Plaintiff issues were framed on the basis of pleadings of the parties, Affidavits were filed regarding evidence and dates were fixed for cross examination. Thereafter, the Respondent-Defendants filed two las one seeking to amend the WS under Order 6 Rule 17, C.P.C and the other seeking to produce additional documents under Order 8, Rule I-A C.P.C. The Civil Judge dismissed both the Applications. The High Court by its impugned order partly allowed a Writ filed there against by the Respondent-Defendants by allowing the Applications seeking to produce additional documents. 17. An Appeal was filed before the Apex Court by the Plaintiff. The Apex Court has held as follows: “Order 6, Rule 17, C.P.C is couched in a mandatory form Unless the jurisdictional facts as envisaged in the proviso to Order 6, Rule 17 C.P.C. is found to be existing the court will have no jurisdiction at all to allow the amendment of the Plaint. The Court’s jurisdiction to allow such an Application is taken away unless the conditions precedent therefore are satisfied viz. The Court’s jurisdiction to allow such an Application is taken away unless the conditions precedent therefore are satisfied viz. it must come to a conclusion that spite of due diligence the parties could not have raised the matter before the commencement of the trial. From the order passed by the Trial Judge, it is evident that the Respondents had not been able to fulfill the said pre-condition.” 18. In the decision reported in Sarojini v. Narayani 2008(1) KLT 516 the Suit filed for recovery of property was decreed and the property was decreed and the property was delivered Subsequently, the Plaintiff filed a Petition for correction of Survey Number in the Plaint. The Trial Court dismissed the Petition and being aggrieved by that revision has been filed before the High Court. 19. The question that arose for consideration before the High Court was whether the correction can be allowed after the Suit is decreed and property is delivered. 20. The Kerala High Court held as follows: “10 The principle to be applied in contingencies as in the present case is that once a decree gets fully satisfied and discharged, the decree becomes extinct and dead so far as the Court is concerned, and unless there is scope for resuscitating the same in accordance with law and it gets resuscitated as such, neither the party could seek nor the Court could indulge in any amendment of such a decree which has become non est in the eye of law. This appears to me the basic principle, which should govern the question of amendment of a decree. Amendment presupposes the existence of a decree which is found to be incorrect or infirm or which is irreconcilable with the judgment and on those grounds or on some other analogous ground, amendment can be sought for. But when the decree as it stood has become extinct and dead in the eye of law by full satisfaction and discharge of the same the Court will lack jurisdiction to order amendment of such a decree. It would be a difference matter if by due process of law the recording of full satisfaction is nullified and the decree stands resurrected. It would be a difference matter if by due process of law the recording of full satisfaction is nullified and the decree stands resurrected. The remedial measure in such cases that may be resorted to is to have the order recording full satisfaction of the decree set aside and deleted by any process known to law and have the decree resuscitated and then only to seek the amendment. An amendment of the decree after satisfaction has been entered, is not permissible unless steps are taken to set aside the order recording the satisfaction thereby reopening the execution proceedings. Then the aggrieved parties can approach the Trial Court after amendment of the Plaint and consequently to amend the decree.” 21. In the same decision in paragraph 14, it has been further observed as follows: “14. In the facts and circumstances of the case I am of the view that if really there is grievance that in the plaint a mistake has been crept there should be some remedy for the Revision Petitioners. One remedy available to the Revision Petitioners is that they can file a review Petition to reopen the execution Proceedings, so that the pendency of the Suit will continue so long as the Execution proceedings are pending. Then the Revision Petitioners can move the Court which passed the decree to make the correction. Alternatively the revision Petitioners can also sue for rectification of the mistakes crept in the Survey Number of the Plaint schedule property. These remedies are open to them and they are at liberty to avail the above said remedies to redress their grievance.” 22. Countering the aforesaid submissions, the learned Counsel for the Respondents submitted that on 20.11.2008. I.A. was allowed. As against that order, the Petitioners filed C.R.P on 13.2.2009 and the C.R.P was admitted only on 13.2.2009, whereas on 11.12.2008 itself the Sale Deed had been registered and the E.P. is pending only for delivery of possession. 23. According to the learned Counsel it is the duty of the Petitioners herein to have furnished all the details in the Sale Agreement itself. Only on the basis of the description of the property as found in the Sale Agreement, the Suit was filed and the same had been decreed and the E.P. has been filed. 23. According to the learned Counsel it is the duty of the Petitioners herein to have furnished all the details in the Sale Agreement itself. Only on the basis of the description of the property as found in the Sale Agreement, the Suit was filed and the same had been decreed and the E.P. has been filed. The draft Sale Deed was filed into the Court and since there was no objection by the Petitioners herein, the same was approved and thereafter, fair Sale Deed was filed and the same was sent to the of the office of the Sub-Registrar for registration. Having not raised any objection to the draft Sale Deed, it is not open to the Petitioners to raise any objections. 24. The learned Counsel submitted that admittedly, there is no dispute regarding the identity of the suit property with the particulars furnished in the Sale Agreement, the Plaint schedule and the schedule in the decree and the suit property can easily be identified. But for registration purposes, the Sub-Registrar wanted the following additional particulars namely: Town Survey Ward: B Block: 39 T.A. No:4 Old Survey No; 194/A part Extent: 0.00.62 Sq.mt and only because of such requirements, the Respondent had filed an Applications for amending the execution Petition, draft Sale Deed and fair Sale Deed. 25. The learned Counsel further submitted that it is not the contention of the Petitioners that the property in respect of which the Sale Deed is sought to be executed is different from the one for which the Suit was filed. When the Sale Deed to be executed is in respect of the suit property, there can be no objection on the part of the Petitioners for allowing the amendment sought for. By allowing the amendment no prejudice whatsoever will be caused to the Petitioners. 26. The learned Counsel further submitted that the registration of a document is only an administrative act and not a judicial act. If the amendment sought for is not allowed the Sale Deed cannot be registered and the decreed obtained by the Respondent will be defeated. Though wrong provision, namely, Order 6, Rule 17, C.P.C. has been mentioned since the Petition has also been filed under Section 151, C.P.C. by exercising the inherent powers the executing Court can order the amendment, even otherwise, the Petition is maintainable under Sections 152, and 47, C.P.C. 27. Though wrong provision, namely, Order 6, Rule 17, C.P.C. has been mentioned since the Petition has also been filed under Section 151, C.P.C. by exercising the inherent powers the executing Court can order the amendment, even otherwise, the Petition is maintainable under Sections 152, and 47, C.P.C. 27. In respect of the aforesaid submissions, the learned Counsel relied on the following decisions. 28. In the decision reported in Pratibha Singh and another v. Shanti Devi Prasad and another, 2002 (5) CTC 660 (SC) 2003 (2) SCC 330 , in paragraphs 13,15and 17, the Apex Court has laid down as follows: “13. At the time of hearing the parties raised very many contentions and we have told them that the concern of this Court is to put an end to the litigation guided by the overriding consideration that the decree of a competent Court having achieved finality must be honoured while the judgment debtors must receive full consideration and at this stage we would not permit sheer technicalities coming in the way of execution, discharge and satisfaction of the decree. It has also to be seen that the decree-holders acquire title and enter into possession over the property which the defendant Judgment-debtors intended to sell while the latter should not be compelled to part with any property which they did not intend to sell. 15. Order 7, Rule 3, C.P.C. requires where the subject-matter of the suit is immovable property, the Plaint shall contain a description of the property sufficient to identify it. Such description enables to the Court to draw a proper decree as required by Order 20, Rules 3 C.P.C. In case such property can be identified by boundaries or numbers in a record for settlement of survey, the Plaint shall specify such boundaries or numbers. Having perused the revenue survey map of the entire area of RS Plot No.595 and having seen the maps annexed with the registered Sale Deed annexed with the registered Sale Deeds of the Defendant judgment debtors we are clearly of the opinion that Sub Plots Nos. 595/1 and 595/11 were not capable of being identified merely by boundaries nor by numbers as Sub Plot numbers do not appear in records of settlement or survey. The Plaintiffs ought to have filed the map of the suit property annexed with the Plaint. 595/1 and 595/11 were not capable of being identified merely by boundaries nor by numbers as Sub Plot numbers do not appear in records of settlement or survey. The Plaintiffs ought to have filed the map of the suit property annexed with the Plaint. If the Plaintiffs committed an error the Defendants should have objected to it promptly. The default or carelessness of the parties does not absolve the Trial Court of its obligation which should have, while scrutinizing the Plaint, pointed out the omission on the part of the Plaintiffs and should have insisted on a map of the immovable property forming the subject-matter of the suit being filed. This the first error. “17 When the Suit as to immovable property has been decreed and the property is not definitely identified, the defect in the Court record caused by over looking of provisions contained in Order 7, Rule 3, and Order 20, Rule 3, C.P.C. is capable of being cured. After all a successful Plaintiff should not be deprived of the fruits of the decree. Resort can be had to Section 152, or Section 47, C.P.C depending on the facts and circumstances of each case-which of the two provisions would be more appropriate just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152, C.P.C. by the Court which passed the decree by supplying the omission. Alternately, the exact description of decretal property may be ascertained by the executing Court a as question relating to execution, discharge or satisfaction of decree within the meaning of Section 47, C.P.C A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47, C.P.C.” 29. In the decision reported in Tilak Raj v. Baikunithi Devi (Dead) by L.Rs 2010 (12) SCC 585 in paragraphs 25 and 27, the Apex Court has laid down as follows: “25. Since the Court exists to dispense justice, any mistake which is found to the clerical in nature should be allowed to be rectified by exercising inherent power vested in the Court for sub serving the cause of justice. Since the Court exists to dispense justice, any mistake which is found to the clerical in nature should be allowed to be rectified by exercising inherent power vested in the Court for sub serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the Court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the Court should not bind itself by the shackles of technicalities. 27. We feel that if we direct the Appellant to seek remedy under the provisions of Section 152, C.P.C it will only delay and prolong the litigation between the parties. In orders to cut shot the ligation and to save precious time of the Court as also give quietus to the entire dispute, we direct in exercise of the powers under Section 152, C.P.C that the decree be corrected by giving the correct Khasra No. 26-R/52 in place of khasra No.25-R/52. Having decided so in the aforesaid manner, we are not required to go into the arguments advanced before us and adjudicate as to whether Order 2 Rule, C.P.C would be applicable in the facts and circumstances of the present case and whether or not the subsequent suit was barred.” 30. In the decision reported in Tiko (Smt) and others v Lachman 1995 Supp (4) SCC 582 it has been laid down as follows: “3 Technically speaking the executing Court could not go beyond the decree and hence the order passed by it is not assailable. But the executing Court was also the Court which could have amended the Plaint and the decree. Counsel for the Appellant states that although the decree was passed by Sub-Judge Class III, Sonepat, the very same Court alter exercised powers as Sub-Judge Class I and was executing the decree. It was therefore, open to that Court to treat the Application as an Application made before the Decretal Court and proceed to dispose of the same in accordance with law.” 31. By way of reply Mr. N. Manokaran, learned counsel for the a Petitioners submitted that under Order 21, Rule 34, C.P.C notice should be enclosed with the draft Sale Deed and only then the judgment-debtor can make his objections. By way of reply Mr. N. Manokaran, learned counsel for the a Petitioners submitted that under Order 21, Rule 34, C.P.C notice should be enclosed with the draft Sale Deed and only then the judgment-debtor can make his objections. But in this case, no notice was enclosed with the draft Sale Deed and therefore, the Petitioners-judgment debtors could not make their objections. 32. I have considered the aforesaid submissions and perused the materials available on record. 33. At the outset it has to be pointed out that since admittedly, the Application filed by the Respondent was not for amending the written statement, Order 6, Rule 17, C.P.C is not applicable and the decision reported in Vidyabai and others v. Padmalatha and another, 2009 (2) SCC 409 , is also not applicable to the facts of the case. 34. Similarly, the decision reported in Sarajoini v. Narayani 2008 (1) KLT 516 is not applicable to the facts of the case since in that case, the decree itself had been fully satisfied and only in that context, the Kerala High Court has held that once a decree gets fully satisfied and discharged decree becomes extinct and dead and when a decree has been fully satisfied and discharged, Court is functus officio and can more entertain any Application for amendment under Section 152, C.P.C whereas in the case on hand, the decree had not been fully satisfied and the Execution Petition was pending and unless the Execution petition is ordered and the Sale Deed is executed, it cannot be construed that the decree has been fully satisfied and discharged and therefore, the said decision is not applicable to the facts of the case. 35. In the decision reported in Satyanarayana v. Purnayya, AIR 1931 Mad 260, it has been laid down as follows: “There is nothing which limits the power of the Court under S. 152 to correcting errors, mistakes and omissions, which arise in the suit. Nothing prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the Plaint. A Suit for rectification of the instrument and decree is not the only remedy; an Application for review may be appropriate, but that is no obstacle under Section 152 to an Application.” 36. Nothing prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the Plaint. A Suit for rectification of the instrument and decree is not the only remedy; an Application for review may be appropriate, but that is no obstacle under Section 152 to an Application.” 36. In another decision reported in Krishna Poduval v. Lakshmi Nathiar, AIR 1950 Mad 751 , this Court while considering the question as to whether the prayer for amendment of the survey number of the property in the Plaint schedule and the decree schedule, when there was no dispute as regards the identity of the property or boundaries to it, allowed the amendment under Section 152, C.P.C and it has been laid down as follows: “I do not think therefore that the amendment asked for goes to the root of the claim or an amendment is sought for in respect of any matter which has been a subject of controversy between the parties to the suit. It is only an amendment for correction of certain errors that have crept into the decree and in the Plaint schedule which errors happen to be also in Ex. B.I(Original document). The fact that Ext.B1 also has the same errors as in the Plaint schedule and in the schedule to the decree cannot disentitle the Plaintiff’s to have the errors set right if they are entitled to it under the provisions of the Code.” 37. In the light of the aforesaid decisions, if the facts and circumstances of the case on hand are considered it could be seen that the description of the suit property in the Plaint is the same as is found in the Sale Agreement and the same description is found in the decree also. 38. In the Krishna Poduval v. Lakshmi Nathiar, AIR 1950 Mad. 751 , even the amendment of the survey number was allowed under Section 152, C.P.C and from the above decision, it is clear that what has to be kept in mind is that whether the amendment asked for goes to the root of the claim or the amendment is sought for in respect of any matter which has been a subject of controversy between the parties in the suit. 39. In this case, admittedly, there is no controversy about the identity of the suit property. 39. In this case, admittedly, there is no controversy about the identity of the suit property. The amendment sought for by the Respondent is only to add additional particulars as sought for by the Sub-Registrar. By adding these additional particulars, neither the identity of the property will be changed nor any additional extent of the property belonging to the Petitioners will be transferred to the Respondents. The Petitioners will be getting the same property as intended to be sold by the Respondent will be getting the same property as intended to be sold by the Petitioners to the Respondents. In such circumstances, no prejudice whatsoever will be caused to the Petitioners by allowing the amendment. 40. As has been pointed out by the Apex Court in Pratibha Singh and another v. Shanti Devi Prasad and another, 2002 (5) CTC 660 (SC) 2003 (2) SCC 330 , if the property is not capable to being identified by the survey number and the boundaries, the Plaintiff ought to have filed the map of the suit property annexed with the Plaint. If the Plaintiff has committed an error, the Defendants should have objected to the error promptly. The default or carelessness of the parties however, does not absolve the Trial Court of its obligation which should have, while scrutinizing the Plaint, pointed out the omission on the part of the Plaintiff’s and should have insisted on a map of the immovable property forming the subject matter of the Suit being filed. 41. In that case also, in the Suit for specific performance and in the execution proceedings, the draft Sale Deed accompanied by a notice requiring objections to be made by a judgment-debtor as provided by sub-Rule (2) of Rule 34 of Order 21, C.P.C. was not caused to be served by the Court. But in spite of the same, the Apex Court has held that when the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the Court record caused by overlooking of provisions contained in Order 7, Rule 3, and Order 20, Rule 3, C.P.C. is capable of being cured. But in spite of the same, the Apex Court has held that when the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the Court record caused by overlooking of provisions contained in Order 7, Rule 3, and Order 20, Rule 3, C.P.C. is capable of being cured. After all a successful Plaintiff should not be deprived of the fruits of the decree and resort can be had to Section 152 or Section 47, C.P.C depending on the facts and circumstances of each case-which of the two provisions would be more appropriate, just and convenient to invoke. It has to be pointed out that being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152, C.P.C by the court which passed the decree by supplying the omission. 42. The Executing Court by exercising powers under Section 47, C.P.C should allow the error to be rectified. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. Since admittedly, the Amendment Petition has been filed before the Executing Court which also happens to be the Trial Court, the Application can either be treated as one filed under Section 152, C.P.C or under Section 47, C.P.C. Therefore, this Court does not find any error in the order passed by the Court below. 43. in the decision reported in Tilak Raj v. Baikunthi Devi (Dead) by L.Rs 2010(12) SCC 585 , the Apex Court has held that since the Court exists to dispense justice, any mistake which is found to be clerical in nature should be rectified by exercising inherent powers vested in the Court for subserving the cause of justice. The Principle behind the provision is that no party should suffer due to bona fide mistake. 44. In that decision, in the Plaint, Khasra number was wrongly mentioned as 25-R/52 and the same was allowed to be rectified under Section 152, C.P.C as Khasra No 26- R/52. 45. In this case, it was not due to the mistake committed on the part of the Respondent/Plaintiff the amendment is sought for. As stated above, the amendment has become necessary in view of the insistence on the part of the Sub-Registrar to furnish additional details as stated above. 45. In this case, it was not due to the mistake committed on the part of the Respondent/Plaintiff the amendment is sought for. As stated above, the amendment has become necessary in view of the insistence on the part of the Sub-Registrar to furnish additional details as stated above. By furnishing the aforesaid additional details, neither the description nor identity or extent of the suit property will be altered and no prejudice whatsoever will be caused to the Petitioners. Mere technicalities should not be allowed to stand in the way of the Court in rendering justice. 46. In view of the aforesaid decisions referred to above, this Court is unable to countenance the contention of the learned Counsel for the Petitioners that the Respondent should have filed the suit only under Section 26 of the Specific Relief Act to rectify the Sale Agreement. For the Aforesaid reasons, the C.R.P fails and the same is dismissed however, there will be no order as to costs. Connected M.P. is also dismissed.