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2012 DIGILAW 1351 (PAT)

Sugandhi Devi v. Banarashi Prasad

2012-09-21

JYOTI SARAN

body2012
ORDER Heard Mr. Chandra Kant, learned counsel appearing on behalf of the petitioners and Mr. Dhananjay Kumar, learned counsel appearing on behalf of the respondents. 2. This application under Article 227 of the Constitution of India has been filed questioning the order dated 21.9.2007 passed by the learned Munsif- I, Siwan in Execution Case No.6 of 1995/42 of 2000, whereby the prayer of the petitioners seeking amendment in the execution petition has been rejected, inter alia, on grounds of absence of statutory provisions permitting such amendment as also in absence of decree-holder-petitioners presenting any document in support of the amendment being sought. 3. A title suit bearing Title Suit No. 110 of 1980 was filed by the petitioners for declaration of title and recovery of possession as also for a further declaration that the defendants had no right and title over the suit property described in the schedule to the plaint. The plaintiffs claimed right, title and interest over the suit property on the basis of a gift deed dated 7.4.1977. Although the defendants also claimed their interest over the suit property by virtue of a second gift deed dated 21.8.1981, but upon contest the suit was decreed in favour of the petitioners under a judgment and decree dated 7.9.1995 and 18.9.1995 respectively, requiring the judgment debtors, i.e. the respondents herein for delivery of possession of the dwelling house, of which they were holding possession. Consequent upon the judgment and decree in Title Suit No.110 of 1980 the decree-holders-petitioners filed an execution case bearing Execution Case No.6 of 1995. The defendants on the other hand, preferred an appeal giving rise to Title Appeal No.95 of 1995. While the appeal was pending consideration a permission was sought by the defendants-appellants (respondents herein) seeking permission to repair the dwelling. An undertaking was also given by them that they would vacate the premises if they loose in appeal. The lower appellate court permitted the defendants to carry out the repairs with clear stipulation that no right would be exercised by them as to the repair made in the house upon loosing in appeal. The undertaking is placed at Annexure-5 and the order dated 25.9.1998 of the appellate court is placed on record vide Annexure-6 to the proceedings. The appeal ultimately was dismissed and thus the execution proceedings continued. 4. The undertaking is placed at Annexure-5 and the order dated 25.9.1998 of the appellate court is placed on record vide Annexure-6 to the proceedings. The appeal ultimately was dismissed and thus the execution proceedings continued. 4. The description of the suit property with the aid of map is given at the foot of the plaint and relates to a piece of land situated in Ward No.3/13, Holding No.759, situate in south-east portion of the plot with the property lying east to west and consisting of an area measuring 10 dhurs as well as dwelling house covering an area of 10 dhurs of land situated in Mauza–Kasba Siwan, Nai Kila, Pathera Toli, Pargana- Bara, P.S. Siwan Town and District- Siwan. The boundary descriptions are also very explicit. 5. It is the case of the petitioners that by passage of time spanning over almost 30 years, the identification of the property underwent a change and required appropriate clarification in this regard. It is stated that it is in this background that an application was filed by the petitioners taking recourse to the provisions of Order 6 rule 17 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) placed at Annexure-9 to this application seeking to amend the description of the suit property in the execution petition and which has been rejected by the impugned order. 6. Perusal of the amendment sought by the petitioners manifests that for the purpose of clarification as regarding the identity of the suit property which had underwent a change that the permission was sought. The petitioners by the amendment prayed, only proposed to clarify the description of the suit property. Whereas the description as it existed at the time of filing of the suit was referred to as Schedule-I, the present day description together with the new Ward number etc. was referred to as Schedule-II and was sought to be entered in column 6 of the execution petition. There being no dispute as to the identity of the suit property inasmuch as the boundary descriptions had remained the same, the only change that has taken place, is the change in Ward number and holding number as clarified by the petitioners. Another change is that by reason of repair allowed under the order of the lower appellate court the structure stands modified from Khaparposh to a Tin Shed. Another change is that by reason of repair allowed under the order of the lower appellate court the structure stands modified from Khaparposh to a Tin Shed. The learned court below has unnecessarily entered into the technicalities of the applicability of the provisions of Order 6 rule 17 of the Code to disallow the prayer made by the petitioners. The jurisdiction vested in the executing court under section 151 of the Code to entertain such clarification by way of amendment in the execution petition is inherent and ought to have been exercised. 7. For the reasons aforesaid, the order passed by the learned court below cannot be upheld and is accordingly set aside. The learned executing court would proceed accordingly. 8. As sufficient time has lapsed since the decree passed by the appellate court, the executing court would be well advised to proceed expeditiously in the matter. 9. This application is allowed.