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2013 DIGILAW 8 (KER)

Mathiri v. Mohan

2013-01-03

K.VINOD CHANDRAN

body2013
JUDGMENT K. VINOD CHANDRAN, J. 1. Seemingly black and white case, rendered complex by a confounding decree passed in a suit for recovery of possession. The suit for recovery of property was decreed without identifying the plaint schedule property. The trial Court noticed that the plaintiff had no taken out a Commission, but still granted the prayer for recovery with a rider that the execution Court will identify the property and recovery will be effected only to the extern the plaint schedule property is found in the hands of the defendants. The decree was no to be taken as granting recovery of possession of the properties in the possession of the defendants; but only to the extent; it is identified as in their possession. 2. One Kaliani sued for recovery of possession of 25 cents of “Njal Nilam” in Surve No. 1027 of Thrissur Village. The contention of the plaintiff was that she obtained the said lands from one Bhaskaran Assari, who purchased it from one Kuttan Mannadiar Kuttan Mannadiar obtained the said land from one Sankaran. Sankaran, along with one Pappu, had taken on lease certain paddy fields as also 53 5/8 cents of Njal Nilam from Kuruppath family, who had jenm over the property. Sankaran and Pappu were said to have held one-half share each of the Njal Nilam with Pappu holding the one-half extent to the north and Sankaran the other half to the south. The 1st defendant was one Chennan, whose mother-in-law had a homestead to the north of the Njal Nilam having an extent of 53 5/8 cents. 3. The 1st defendant, denied the lease in favour of Pappu and Sankaran and claimed lease of a total of 35 cents, which comprised a homestead having 10 cents, in favour of his mother-in-law and through her, claimed possession. The second defendant filed a written statement with a schedule of the property in his possession and contended that the plaint schedule property was not in his possession. Essentially he claimed possession of the lands held originally by Pappu and the plaint schedule property, being that originally held by Sankaran, was claimed to be in the hands of a third party. 4. On the basis of the contention raised by the 2nd defendant, the plaint was amended. Essentially he claimed possession of the lands held originally by Pappu and the plaint schedule property, being that originally held by Sankaran, was claimed to be in the hands of a third party. 4. On the basis of the contention raised by the 2nd defendant, the plaint was amended. A reading of the plaint would indicate that the 53 5/8 cents of Njal Nilam stood south of the homestead belonging to the mother-in-law of Chennan. The northern half was the one leased out to Pappu, which the 2nd defendant possessed by, and the southern half leased out to Sankaran was the plaint schedule property purchased by the plaintiff. The title of the plaintiff was found as per the various deeds. The oral lease claimed by the 1st defendant from the Kuruppath family was found to be false. The second defendant contended having obtained an assignment of 35 cents, out of the 50 cents, out of which he had assigned back 10 cents to the 1st defendant. His specific case was that the 25 cents marked as the plaint schedule was lying south of the property in his possession and was in the possession of the owner of a Mill. Since the plaintiff had not taken out a commission for identification of the plaint schedule property, the actual possession was held to be unascertainable and the liability for mesne profits was held to be proportionate, depending on the extent of possession of either the 1st defendant or the 2nd defendant. 5. Without identification of the property scheduled in the plaint, the plaintiff was granted the decree for recovery from the defendants by judgment dated 6.12.1967. Subsequently, an application, I.A.No.2118 of 1971, was filed by the 2nd defendant, in which the decree was clarified by the Court that; the possession of the plaint schedule property in the hands of either of the defendants has to be ascertained by the execution Court and recovery effected only to the extent found by the execution Court, to be in such possession of defendants 1 and 2. This strange procedure has resulted in the execution Court attempting to identify the plaint schedule property for the first time. 6. Before the execution Court, the legal representatives of the decree holder as well as the judgment debtors were impleaded. This strange procedure has resulted in the execution Court attempting to identify the plaint schedule property for the first time. 6. Before the execution Court, the legal representatives of the decree holder as well as the judgment debtors were impleaded. Since the legal heirs of the 1st judgment debtor was not impleaded, the decree in any event could not be executed against the 1st judgment debtor. The second judgment debtor filed an objection, contending that no property scheduled in the plaint was in his possession. His contention, in consonance with his defence in the suit, was that the northern half of the Njal Nilam, which was leased out to Pappu, was in the possession of Chennan, the 1st judgment debtor. Pappu having sold his holding to Ramankutty Vaidyar; the 2nd judgment debtor’s wife purchased it from the said Ramankutty Vaidyar and subsequently sold it to the second judgment debtor. Since Chennan was in possession of the said property, to perfect the title the second judgment debtor had purchased the entire 35 cents from Chennan and reconveyed 10 cents on the north, comprising the homestead, to Chennan. It was his contention that the plaint schedule property is lying to the south of his property. 7. The execution Court appointed a Commissioner, who identified 53 5/8 cents of land in Survey No. 1027/2 wherein Chennan’s mother-in-law’s kudikidappu and the Njal Nilam lying to its south, in the possession of the 2nd judgment debtor was identified. The balance property in Survey No. 1027/2 was found to be in the possession of a third party. He reported the plaint schedule property was unidentifiable. The decree holder prayed for remitting the report, which was allowed. Since the Commissioner expressed his inability, another Advocate was appointed without setting aside the first report. The identification was more or less similar, but the 2nd Commissioner reported the property in the hands of the 2nd judgment debtor as being part of the plaint schedule property, this revision is against the order directing delivery of the property from the second judgment debtor to the decree holder. 8. I have heard Sri. S. V. Balakrishna Iyer, learned Senior Counsel appearing for the revision petitioners and Sri. P.R. Venkatesh, learned counsel appearing for the respondents. 9. 8. I have heard Sri. S. V. Balakrishna Iyer, learned Senior Counsel appearing for the revision petitioners and Sri. P.R. Venkatesh, learned counsel appearing for the respondents. 9. The learned counsel for the revision petitioners would submit that though the appointment of a Commissioner in the execution proceedings to identify the property for effecting delivery of possession is not completely alien to execution proceedings here is a case where there was no Commission at all taken out in the suit and recovery was ordered subject to the condition that such recovery be effected only if the execution Court finds that any extent of property is in the possession of the defendants Velayudhan v. Nazareen, 2004 (1) KLT SN 64 (C.No.85) and P.N. Kurian v. Thulasidas, 2003 (2) KLT SN 34 (C.No.43) = AIR 2003 Ker.288::2003 ICO 7107, held that when a question arises as to the identity of the property which has to be delivered, in execution proceedings the appointment of a Commissioner simply to ascertain and fix up the identity of the property in terms of the decree would not amount to additional evidence. However, more apposite in the present case would be the decision reported in Pratibha Singh v. Shanti Devi Prasadm, AIR 2003 SC 642 ::2002 ICO 704, wherein the Supreme Court emphasized the necessity of a description of the property sufficient enough to identify it as provided under Order 7, R.3 of the Code of Civil Procedure to facilitate the drawing up of a proper decree as required by Order 20 R.3. In any event, it is the case of the revision petitioners that the first Commission Report having not been set aside, the Court could not have appointed another Commissioner and relied on the second report. To advance the said proposition, reliance is placed on Premananda Bharathi v. Yogananda Bharathi, 1985 KLT 144 :1984 ICO 1057. 10. The further contention is that this Court though sitting in revision under S. 115 C.P.C., is not fettered by the restrictions under S.115 for the reason of the Supreme Court having held that a revisional remedy also comes within the ordinary acceptation of the term “appeal”; in Shankar Ramachandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 :1969 ICO 268. The further reason advanced was that the trial Court having left the question of identity and possession completely to the execution Court, thus enabling and enjoining upon the execution Court to allow evidence to be led, the parties are prejudiced in so far as their appellate remedy is lost; despite there being proceedings akin to a trial, being conducted by the execution Court. The said procedure, according to the learned counsel, is unheard of and the decree should be taken as a non-executable one and that is the reason why though the 2nd defendant filed an appeal from the decree, he withdrew it and sought for correction, which was allowed by order dated 20.11.1972 in I.A.No.2118 of 1971. The correction in I.A.No.2118 of 1971 having been allowed, he rested contend for no extent of the paint schedule property was in his hands. 11. The learned counsel for the respondents would place before me the decisions reported in Hari Shankar v. Girdhari Lai., AIR 1963 SC 698 , Pandurang v. Maruti., ADR 1966 SC 153:1965 ICO 197, M/s Bhojraj Kunwarji Oil Mill & Ginning Factory v. Yograjsinha, AIR 1984 SC 1894 :1984 ICO 138, Shiv Shakti Co-op. Housing Society v. Swaraj Developers, 2003 (2)KLT 503(SC)= (2003) 6 SCC 659 :2003 ICO 693, Rafique Bibi v. Sayed Waliuddin,, (2004) 1 SCC 287 :2003 ICO 947, Pothina Narasamma v. Marupilla Ammaji, (2006) 9 SCC 749 and Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur, (2009) 5 SCC 162 :2009 ICO 2029. It is his contention that Shankar Ramachandra Abhyankar (supra) never intended to widen the scope of revision and the above cited decisions by co-ordinate and larger Benches have consistently reaffirmed the restricted scope of revision under S. 115 C.P.C. This Court is barred from looking into the evidence and re-appreciating the same to come to a finding that a more reasonable conclusion would have emanated from the evidence so as to reverse the finding of the lower Court on that ground alone. At best or worst, the submission of the learned counsel is that, this Court can order remand and restrain itself from a re-appreciation of the materials before the court below. 12. At best or worst, the submission of the learned counsel is that, this Court can order remand and restrain itself from a re-appreciation of the materials before the court below. 12. Hari Shankar (supra) held that “under S. 115 of the Code of Civil Procedure, the High Court’s powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone” (sic). Pandurang (supra) considered the scope of S. 115 elaborately in para 10 and held “that a distinction must be drawn between the errors committed by subordinate Courts in deciding questions of law which have relation to, or are concerned with, questions of jurisdiction of the said Court, and errors of law which have no such relation or connection” (sic). The exercise of jurisdiction by the High Court under S. 115 was held to be justified only when the error committed by the lower Court related to its jurisdiction and not to a misconstruction of a statutory provision or the terms of a decree. M/s. Bhojraj Kunwarji Oil Mill case (supra) reiterated the position that in exercise of the revisional jurisdiction on the only ground that a different view on facts elicited was possible, is not justified. In Pothina Narasamma (supra) the High Court exercising jurisdiction under S.115 reversed the impleadment of the legal heirs of the plaintiff on the finding that there was no satisfactory explanation for the delay caused in impleading the legal heirs. The Supreme Court held that under S.115 it was not open to the High Court to question the findings of fact recorded by a subordinate Court; and has to confine itself to questions of jurisdiction. 13. The list of precedents and the judicial thought evinced there from clearly indicate that under S.115 C.P.C. power is to be exercised only when the subordinate Court exercises a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested or in the exercise of its jurisdiction it does so illegally or with material irregularity. Errors of facts are not to be corrected under S. 115 and also errors of law unless it touches upon the jurisdictional aspect. Errors of facts are not to be corrected under S. 115 and also errors of law unless it touches upon the jurisdictional aspect. I am not inclined to accept the contention of the learned Senior Counsel that Shankar Ramachandra Abhyankar (supra) lays down that a revision is akin to an appeal; going merely by the literary connotations of the word “appeal”. That was a case in which a revision under S. 115 C.P.C. was dismissed by the High Court and later a Writ Petition under Articles 226 and 227 of the Constitution of India was entertained by the very same High Court. The Supreme Court was concerned with the question whether on a dismissal of a revision under S.115, there would be a merger of the order of the subordinate Court in the order of the High Court and would it not, then, lead to an illegality as also an impropriety in entertaining a further challenge against the same order under Articles 226 and 227. The revisory power was also held to be one which resulted in opening the doors of a superior Court and invoking its aid and interposition to redress the error committed by the Court below. It was only to reaffirm, the principles of merger, in revision proceedings too, that the Supreme Court held that in applying that principle there cannot bea distinction between are vision and an appeal. This Court draws support, in taking such a view from Shiv Shakti Co-op. Housing Society (supra) wherein the Supreme Court clarified that the observations in Shankar Ramachandra Abhyankar (supra) cannot be read out of context and cannot be held to have equated an appeal with a revision. 14. It is true that this Court has found the procedure in appointing a Commissioner by the execution Court; to ascertain and fix up the identity of the property, as being perfectly in order. However, the Supreme Court in Pratibha Singh (supra) clearly found so: “Order 7, R.3 of the 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 the Court to draw a proper decree as required by O.20, R.3 of the 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. Such description enables the Court to draw a proper decree as required by O.20, R.3 of the 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 R.S. Plot No.595 and having seen the maps annexed with the registered sale deeds of the defendant-judgment debtors we are clearly of the opinion that the Sub-Plots 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 map of the suit property annexed with the plaint. If the plaintiffs committed an error the defendants should have objected to 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 subject-matter of the suit being filed. This is the first error”. The Supreme Court also held that the defect in the Court record caused by overlooking the provisions contained in Order 7 R.3 and Order 20 R.3 C.P.C. is capable of being cured, since the plaintiff should not be deprived the fruits of the decree. It was also held that the inadvertent error of the Court can be corrected either under S. 152 or under S.47 CPC. Under S.47, it was held, that the exact description of the property can be ascertained by the execution Court. However, it is to be noticed that the directions issued by the Supreme Court in the said case was partly under Art. 142 of the Constitution of India, for doing complete justice in the lis. It is also relevant that the suit was one for specific performance and not for recovery of possession. When specific performance is involved, R.34 of Order 21 provides for a draft of the document to be drawn up by the decree holder and delivered to the Court and also provides for objections of the judgment debtor and determination of the same by the execution Court. When specific performance is involved, R.34 of Order 21 provides for a draft of the document to be drawn up by the decree holder and delivered to the Court and also provides for objections of the judgment debtor and determination of the same by the execution Court. It was in this context that the Supreme Court said that: “There is no determination by the Executing Court that the immovable property as slineated and demonstrated in the map accompanying the draft sale deed was the property arming subject-matter of agreement to sell and the decree inasmuch as the possession is yet to be taken by the plaintiff-decree-holders this aspect can still be taken care of and that we shall do by making an appropriate direction in the operative part of this order”. 15. It is too late in the day to contend that the decree itself is a nullity. Rafique Bibi (supra) drew a distinction between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. In the case of a decree suffering from illegality or irregularity of procedure, it cannot be termed is in executable by the executing Court and the remedy of a person aggrieved by such a decree was to have it set aside by a superior court. In the instant case, though an appeal was filed, it was not pursued. However, going by the specific terms of the decree, it cannot also be said that on the mere filing of a report of the Commissioner the Court can order delivery of the properties sought to be recovered. As was noticed earlier, here is a case where no identification of the property sought to be recovered was attempted at the trial stage. It was not as if any doubt regarding the identity had to be cleared by the execution Court by appointment of a Commissioner. Identification was not at all attempted in trial. The execution Court was cast with the onerous responsibility of identifying the plaint schedule property and finding out whether any extent of such property was in the possession of the defendants. 16. In the instant case, a commission was taken out by the decree holder, in E.A.No. 125 of 1983 in E.P.No.642 of 1982. The execution Court was cast with the onerous responsibility of identifying the plaint schedule property and finding out whether any extent of such property was in the possession of the defendants. 16. In the instant case, a commission was taken out by the decree holder, in E.A.No. 125 of 1983 in E.P.No.642 of 1982. Advocate T.A. Varkey was appointed as the Commissioner. He inspected the property with the help of the Village Officer and filed a report before Court, dated 10.11.1983, along with a sketch. It was reported that the plaint schedule property, as per the title deeds, were said to be in Survey No.1027. The properties in Survey No.1027 was identified and the same was found to be lying in seven sub-divisions. Chennan’s homestead having been identified on the northern extremity of sub-division 2 of Survey No. 1027, the entire properties comprising the kudikidappu and that in the possession of the 2nd judgment debtor were identified and marked in the sketch. The total extent of properties in sub-division 2 of Survey No.1027 was found to be 53 5/8 cents and lying in an arch form, from north to west. The property marked as ‘A’ was reported to be having an extent of 11.132 cents and marked blue in the sketch. 17.600 cents was marked as ‘B’ and coloured red in the sketch. ‘A’ and ‘B’ were found in the possession of the 1st and 2nd judgment debtors respectively. A pathway having an extent of 1.786 cents was also marked as ‘C’ The balance properties lying in sub-division 2 of Survey No. 1027 though shown in the sketch was not measured, since the same was reported to be in the hands of third parties. Both the decree holder and the second judgment debtor filed objection to the Commission Report. The Commissioner was also examined. The Commissioner filed a final report, expressing his inability to identify the plaint schedule property. This clearly indicates that the properties in the hands of the judgment debtors were not the plaint schedule property. 17. The decree holder filed objection dated 2.1.1984 to the Commission Report and prayed for remitting the report. The objection was to the effect that the Commissioner ought to have included 7.4 cents from the portion marked as ‘A’ to that marked as ‘B’ (17.600 cents) and report the same to be the plaint schedule property. 17. The decree holder filed objection dated 2.1.1984 to the Commission Report and prayed for remitting the report. The objection was to the effect that the Commissioner ought to have included 7.4 cents from the portion marked as ‘A’ to that marked as ‘B’ (17.600 cents) and report the same to be the plaint schedule property. The second defendant filed E.A.No.292 of 1984 dated 14.7.1984 producing three documents to be marked in evidence. The documents were (i) the Receipt dated 2nd Kumbam, 1140 M.E. (1965) issued by one Narayani Amma of Vadakke Kurupath for the pattam paid by Mathiri, W/o. the 2nd defendant for the 25 cents ‘Njal Nilam’, (ii) the order of fixation of fair rent in O.A.No.1010/1967 dated 26.8.1967 and (iii) the application dated 15.9.1965. Thereafter/since Sri.T.A. Varkey expressed his inability, the decree holder sought for appointing a new Commissioner by E.A.No. 156/1987. This application was allowed on 12.6.1987, without setting aside the earlier report. Hence, it could only be taken as an order of remit. 18. One another Advocate Sri. T.D. Chakkunny was appointed as Commissioner. He filed a report and sketch. In the sketch prepared by the 2nd Commissioner, 4.366 cents, marked as red, was identified as being the properties comprised in the homestead of Chennan. The property in the possession of the revision petitioner, marked as blue, was measured to have an extent of 20.634 cents. As in the earlier sketch, the balance properties lying in Survey No.1027/2 was not measured, being in the hands of third parties. The Commissioner reported that the plaint schedule property is that marked as blue (20.634 cents). The execution Court accepted the same and ordered accordingly, directing the Amin to effect delivery of the property having an extent of 20.634 cents identified by the Commissioner and demarcated in blue colour in the sketch and found to be in the possession of the 2nd judgment debtor. 19. Unlike in Pratibha Singh (supra), which was from a suit for specific performance where the respondent had a remedy by way of stating his objections before Court under R.34 of Order 21, in the present case such objections can only be by way of objection to the Commission report. The first Commission report categorically stated that the plaint schedule property was not identifiable. The boundaries disclosed from the documents obviously was of the entire 53 5/8 cents lying in survey No. 1027/2. The first Commission report categorically stated that the plaint schedule property was not identifiable. The boundaries disclosed from the documents obviously was of the entire 53 5/8 cents lying in survey No. 1027/2. This is the only conclusion possible, because if the homestead of 1st judgment debtor’s mother-in-law or the 25 cents each which was leased out originally to Sankaran or Pappu was separately scheduled, then the boundary would have shown either of these properties. Identification of the properties claimed by the 1st judgment debtor, second judgment debtor and the decree holder is possible from the specific averments made in the plaint itself. The homestead of Chennan was lying to the north of survey No. 1027/2. The specific recitals in the plaint have to be harmonized with the Commission report. The plaint states that Chennan’s homestead to be in the north of survey No. 1027/2, then to the south the property claimed by Pappu and immediately south thereof was that possessed by Sankaran. The Commission report demarcates the property lying in survey No. 1027/2 and shows it to be lying in an arch in a south-westerly direction. Hence, Chennan’s homestead was at the northern extremity of survey No. 1027/2 and to the south-west was the 25 cents Njal Nilam of Pappu and to the south-west of this 25 cents was the 25 cents Njal Nilam of Sankaran; the latter of which obviously is the plaint schedule property. The second defendant’s title is of no consequence, since he was found in possession of the property originally possessed by Pappu, i.e., the property lying northeast of the plaint schedule property. 20. Procedural irregularity is writ large, in so far as the report of the Commissioner appointed subsequently was the only material relied on by the execution Court to order delivery. When the 1st report specifically recorded that the plaint schedule property was unidentifiable, the decree holder sought for a remit. As noticed above, the prayer in the objection was that 25 cents should be identified from the possession of the 2nd judgment debtor and the deficient extent from the possession of the 1st judgment debtor and delivery effected thereon. This would go against the terms of the decree, since first the plaint schedule property had to be identified and then there should be an ascertainment as to whether any extent is in the hands of the defendants. This would go against the terms of the decree, since first the plaint schedule property had to be identified and then there should be an ascertainment as to whether any extent is in the hands of the defendants. The 2nd Commission report shows the identification of the property, with reference to the boundaries shown in the title deed of the plaintiff. As noticed above, that boundary related to the entire 53 5/8 cents of property in Survey No. 1027/2 and not of the 25 cents Njal Nilam scheduled in the plaint. 21. After the 2nd report, the 2nd judgment debtor filed E.A.No.37 of 1989 to set aside the said report. That application was posted “for enquiry” to 6.7.1989 and nothing was done thereafter. The original plaintiff/decree holder and the 2nd defendant/2nd judgment debtor expired in the meanwhile and it was the legal heir who carried on the case. But, that does not absolve the Court from looking into the materials and arriving at a finding on the specific terms of the decree. As matters stand, this Court is of the opinion that the 2nd report filed before the execution Court is one beyond the scope of remit, since it is in direct conflict with the earlier report. Going by the dictum in Premananda Bharath (supra), the 2nd report filed, when the earlier report was not set aside; has to be definitely eschewed. That was what was sought for by E.A.No.37/1989, which remains pending even after the conclusion of the execution proceedings. An undue haste in accepting a report which purportedly identified the plaint schedule property is writ large in the proceedings. The 1st Commission Report identified the property in the possession of the 1st and 2nd judgment debtors and reported the plaint schedule property as unidentifiable. That should have concluded the matter and the decree hence stood unexecutable for reason of non-ascertainment of the plaint schedule property and the property in the hands of the judgment debtors being not the plaint schedule property. The 2nd Commissioner went beyond the scope of the terms of his appointment. Many of the documents referred to in this judgment and produced by either side have not been taken into account by the Commissioner. Nor was it looked into by the execution Court, probably due to the death of the original parties to the lis and the failure of the legal representatives to lead evidence. Many of the documents referred to in this judgment and produced by either side have not been taken into account by the Commissioner. Nor was it looked into by the execution Court, probably due to the death of the original parties to the lis and the failure of the legal representatives to lead evidence. 22. Considering the long pendency of the proceedings, this Court would have been persuaded to give a quietus to the entire issue. But, many of the documents specifically brought to the attention of this Court, available in the records of the case, have not been marked in evidence. This Court, sitting in the revisional jurisdiction conferred under S.115 of the Code of Civil Procedure, cannot go into a roving enquiry as to the identification of the property and so on and so forth. But, the material irregularity noticed in the procedure cannot be ignored, since while ensuring that the fruits of the decree is not denied to the plaintiff; this Court has an equal duty to the judgment debtors to ensure that; in the guise of protecting the plaintiffs right, property rightfully and legally due is not deprived to the defendants. The terms of the instant decree is very explicit as has been spelt out in the earlier part of this order, and needs no reiteration. The defendants’ contention is that on the amendment of the, decree there was no requirement to pursue an appeal, since no extent of the plaint schedule property was in the possession of the defendants. Though no appeal was prosecuted recovery can be effected only if any portion of the plaint schedule property is found in the possession of the defendants. On the basis of the discussion above, the Civil Revision Petition is allowed. The order of the Court below is set aside and the matter is remanded back to the execution Court. The parties shall appear before the execution Court on 1.2.2013. The execution Court shall give the parties an opportunity to adduce evidence, if sought for, and conclude the proceedings at any rate within a period of six months from 1.2.2013. No costs.