Poorna Ram S/o Shri Mala Ram Meghwal v. Legal Representatives of Late Smt. Kishni D/o Shri Dula Ram
2017-04-03
DINESH MEHTA
body2017
DigiLaw.ai
JUDGMENT : Dinesh Mehta, J. By way of the present writ petition, the petitioner has assailed the order dated 25.5.2015 whereby the learned trial court has rejected petitioner's objection dated 02.8.2013. 2. Briefly stated the facts of the case are that the plaintiff decree holder Smt. Kishni Devi had filed the suit under Section 10 of the Specific Performance Relief Act for the purpose of an agreement dated 19.6.1985 which suit came to be decreed by the trial court vide its order dated 29.11.2015. 3. Feeling aggrieved against the said judgment and decree the plaintiff filed a civil appeal which came to be allowed by the Additional District Judge, Ratangarh vide its order dated 06.8.2011. It is an undisputed fact that the said judgment has attained finality as the appeal against them has been dismissed by the higher courts. The decree holder thereafter preferred an execution in 2011. During the pendency of the execution proceedings, the petitioner-judgment debtor submitted his objection on 02.8.2013 and it was contended that there is no stipulation regarding handing over the possession and as such, the prayer for possession mentioned in execution of decree cannot be allowed. It was also contended that the decree in question was in relation to 4/5th share of 40 bigha land in Khasra No. 327. It was further contended that while passing the decree the Appellate Court/Executing Court concerned has returned to the effect that 4/5th part of the 40 bigha land in Khasra No. 327 will be transferred and 15 bigha 12 biswa land in Khasra No. 266 would be transferred to the plaintiff and sale deed would be executed which according to the petitioner was in correct and the decree was required to be modified in as much as final decree the court has passed the decree for execution of sale deed to the extent of 20 bigha 15 biswa. It will not be out of place to reproduce the relevant part of the decree, photo-state copy thereof has been submitted by the learned counsel for the petitioner. 4. Mr. Gehlot further contended that the learned Executing Court is proceeding to hand over the possession of the subject land also whereas there was no stipulation regarding handing over of the possession in the decree.
4. Mr. Gehlot further contended that the learned Executing Court is proceeding to hand over the possession of the subject land also whereas there was no stipulation regarding handing over of the possession in the decree. His another argument has been that though the order of the Executing Court was clear to execute a sale deed in relation to 20 bigha 15 biwsa land in Khasra No. 327 whereas the relevant decree stipulated 4/5th share of 40 biha land of Khasra No. 327 which cannot be equal to 20 bigha 15 biswa land. He further contended that there is an apparent error in decree and same should have been modified by the executing court in exercise of powers available to it under Section 152 of CPC. 5. Heard learned counsel for the parties and perused the material available on record. As far as the first argument of Mr. Gehlot is concerned that the Court has not passed the decree to hand over the possession and if the decree holder wanted to seek possession it was required of him to have taken up separate proceedings in accordance with law for getting possession. A perusal of the decree particularly the following part....................... 6. The operative portion of the decree clearly required to the defendant not only to execute the sale deed within a period of two months but also hand over the possession thereof to the plaintiff. 7. In view of the clear stipulation, the decree itself permitted the plaintiff to get the sale deed executed so also to get the possession thereon, the learned Executing Court has committed no error of law in proceeding to hand over the possession of subject property in relation to the given argument of Mr. Gehlot that there is a typographical or clerical error in the decree. Suffice it to observe that 4/5th share of 40 bigha land in Khasra No. 327 comes to 15 Bigha and 15 biswa in Khasra No. 260 somewhere 55 bigha 12 biswa whereas the operative portion of the decree stipulates only 20 Bigha 15 biswa land, this Court is of the considered opinion that by way of the proceedings in question the executing court is proceeding to execute the sale deed and hand over the possession in the spirit of decree which clearly provides that 20 Bigha 15 biswa land on payment of Rs.
13,268/- and as such no prejudice is being caused to the judgment debtor. Even if there is a typographical or clerical error in the decree and the executing court is considering the tenure mandate to the decree in its true spirit, there is no requirement for this court to interfere in the matter at this stage. 8. The writ petition in hand seeking to lay challenge to the order dated 07.12.2015 is therefore dismissed with the above observation.