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2017 DIGILAW 1012 (JHR)

Nuruddin @ Nuruddin Ansari v. Manki Munda

2017-07-01

RAJESH SHANKAR

body2017
JUDGMENT : The present writ petition has been filed by the petitioners for quashing/setting aside the order dated 02.07.2007 (Annexure-5 to the writ petition), passed by the learned Subordinate Judge, IX, Ranchi in Execution Case No. 4/1999, whereby the learned court below rejected the amendment petition filed by the petitioners praying for amendment in the execution petition. 2. Learned counsel for the petitioners submits that the petitioners had filed Title Suit No. 223 of 1986-1996/70 for declaration of right, title and interest and delivery of possession in respect of three plots 396,218,551 of village Huzir of Khata No. 29 total area 2.69 acres against the defendants/respondents which was allowed vide judgment dated 28.08.98 and decree dated 8.9.1998 in favour of the plaintiffs/petitioners. It is further submitted that the decree dated 8.9.1998 was put in execution vide Execution Case No. 4/99 on 04.02.99 before the Court of Subordinate Judge, IX, Ranchi. Thereafter the Executing Court issued writ of D.P. in respect of plot no. 396 area 0.95 acres, plot no. 551 area 1.59 acres and plot no. 218, area 0.15 acres to give delivery of possession to the petitioners/plaintiffs. The Nazir, Civil Court, submitted his report on 16.07.2003 before the court of Subordinate Judge, IX, Ranchi and as per Nazir report, delivery of possession was given to the plaintiffs/petitioners in respect of lands covered under plot no. 396, area 0.95 acres and plot no. 551 area 1.59 acres. However, in respect of plot no. 218, area 0.15 acres, the delivery of possession could not be given by the Nazir, as there was a house on the said land. It is also submitted that after receipt of Nazir's report for effecting execution of the decree in respect of plot No. 218, area 0.15 acres, the petitioners filed an amendment petition on 25.05.2007 for amendment of the execution petition. 3. The proposed amendment was as follows:- In page no. (5) at paragraph (10) after the word “therefrom” and before the word “it is “ the following words be inserted. “The Decree Holder further pray that upon plot no. 3. The proposed amendment was as follows:- In page no. (5) at paragraph (10) after the word “therefrom” and before the word “it is “ the following words be inserted. “The Decree Holder further pray that upon plot no. 218 a house has been constructed by the judgment debtor during the long pendency of the suit thus the judgment debtors may be dispossessed from the House standing upon the said plot and the decree holders be put in Khas possession thereof by removing all obstructions and impediment that may be put by the judgment debtors at the time of delivery of possession”. 4. However, the learned Subordinate Judge, IX, Ranchi, vide order dated 02.07.2007 rejected the said amendment petition filed by the petitioners. It is further submitted by learned counsel for the petitioners that the learned Executing Court committed a serious error in not allowing the proposed amendment of the petitioners in the execution proceeding and by rejecting the same, the decree passed in favour of the petitioners could not be executed in letter and spirit. 5. No one appears on behalf of respondent nos. 1 to 16. However, J.C. to learned S.C. II appears on behalf of respondent no. 17. Learned counsel for the respondent no. 17 submits that there appears to be no error in the order dated 02.07.2007 passed by the learned Subordinate Judge, IX, Ranchi, as the construction over the plot no. 218, Khata no. 29 was standing before the execution proceeding was started. In fact the petitioners should have sought amendment in the plaint regarding the said fact at the time of suit proceeding itself. 6. Having heard learned counsel for the parties and after going through the relevant documents placed in the file, it appears that though the decree of declaration of right, title and interest over the suit land and for confirmation of possession was passed and in alternative, the decree for recovery of possession over the suit land in favour of the petitioners was also passed, yet neither in the suit proceeding, nor in the decree, it was ever mentioned that there had been a house existing over plot no. 218, khata no. 29. If there had been a construction of house over the suit land, it was open to the petitioners to bring the said fact during the suit proceeding itself by carrying out suitable amendment. 218, khata no. 29. If there had been a construction of house over the suit land, it was open to the petitioners to bring the said fact during the suit proceeding itself by carrying out suitable amendment. However, the said amendment was not carried out till the decree was passed by the learned Subordinate Judge, in Title Suit No. 223 of 1986. Accordingly, the particulars of the suit lands mentioned in the decree did not mention that there has been any construction raised over the plot no. 218, khata no. 29. 7. It is a settled proposition of law that a Court executing the decree shall execute it as it stands and it cannot modify or vary the term of the decree. The Hon'ble Supreme Court in the case of Jai Narain Ram Lundia vs. Kedarnath Khetan reported in AIR 1956 SC 359 held at paragraph no. 24 as under:- 24.…........................ “It may be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree, or modification of the terms of the decree, later if he did not know these fact at the time, as he says it was of the plaintiff. The fact remains that the decree was passed in these terms and it must either be executed as its stands or not at all unless the Court which passed it alters or modifies it”. 8. Thus, in my considered opinion, the learned Subordinate Judge, IX, Ranchi in Execution Case No. 4/1999 has rightly held that there has been no specific decree for recovery of possession over the house constructed on the suit land (plot no. 218 Khata no. 29) and therefore the proposed amendment sought by the petitioners could not be allowed at the time of execution proceeding. In view of the said fact, I find no reason to interfere with the impugned order dated 02.07.2007 passed by the Subordinate Judge, IX, Ranchi in Execution Case No. 4/1999. The writ petition being devoid of merit is accordingly dismissed. Pending I.A., if any, stands dismissed.