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2018 DIGILAW 225 (GAU)

Subodh Krishna Paul v. Kushal Paul

2018-02-06

A.K.GOSWAMI

body2018
JUDGMENT & ORDER : 1. Heard Mr. N. Dhar, learned counsel for the petitioners. Also heard Mr. S.P. Roy, learned counsel, appearing for the respondent. 2. These 3 (three) civil revision petitions under Article 227 of the Constitution of India read with Section 115 of the Civil Procedure Code, 1908, having raised identical questions of law and facts, have been listed together. For the purpose of argument, the learned counsel appearing for the parties have referred to CRP No.305/2017. 3. The respondent, who is common in all the three petitions, had filed three separate title suits against each of the petitioners, who are brothers, in the Court of the learned Munsiff No.2, Kamrup (Metro), Guwahati. The suit filed against Subodh Krishna Paul (petitioner in CRP No.305/2017) was registered as Title Suit No.260/2003; the suit filed against Jagabandhu Paul (petitioner in CRP No.309/2017) was registered as Title Suit No.259/2003 and the suit filed against Tapan Paul (petitioner in CRP No.310/2017) was registered as Title Suit No.261/2003. 4. The common thread which emerges from the case of the plaintiff, as projected in the plaint in all the three suits, is that a plot of land measuring 9 Lechas of land covered by Dag No.116 of K.P. Patta No.477 of Village Sahar, Guwahati, Part-II, Mouza Guwahati, together with an Assam type House standing thereon, which is described in Schedule-A to the plaint, was originally owned by three persons, namely, Kalipada Roy Choudhury, Rabindra Nath Roy Choudhury and Smti. Sandhya Saha Roy Choudhury. The Assam type house was constructed in the year 1925 and the said house was let out to M/s Paul Brothers, which was a partnership firm of which Lal Mohan Paul and Roy Mohan Paul were partners. Subsequently, the suit house was divided in between Lal Mohan Paul and Roy Mohan Paul in the middle portion with consent of the landlord and the father (should have been grandfather) of the plaintiff came into possession of three rooms and Lal Mohan Paul also came into possession of three rooms. On the death of Lal Mohan Paul, his three sons (petitioners of each of the civil revision petitions) jointly carried on business but subsequently, they separated and each one of them separately started their respective business in one room each. It is pleaded that the plaintiff purchased the Schedule-A premises from the three owners vide Sale Deed No.3200 dated 09.05.2002. On the death of Lal Mohan Paul, his three sons (petitioners of each of the civil revision petitions) jointly carried on business but subsequently, they separated and each one of them separately started their respective business in one room each. It is pleaded that the plaintiff purchased the Schedule-A premises from the three owners vide Sale Deed No.3200 dated 09.05.2002. Coming to know of the aforesaid purchase, the three sons of Lal Mohan Lal filed Title Suit No.8/2003 in the Court of the learned Civil Judge (Senior Division) No.2, Guwahati (subsequently registered as Title Suit No.436/2006 in the Court of the learned Munsiff No.3, Guwahati), amongst others, against the plaintiff and the vendors for a declaration that the Sale Deed was void, inoperative and not binding on them, confirmation of possession of the defendants over the land and houses as described in the Schedule-B of the said plaint and for permanent injunction. 5. Title Suit No.259/2003, Title Suit No.260/2003 and Title Suit No.261/2003 were filed on the premise that the defendants (petitioners in the three revision petitions) in the suits not only refused to pay monthly rent to the plaintiff but also refused to attorn the tenancy in favour of the plaintiff and as such, sought for ejectment of the defendants from Schedule-B premises and for recovery of arrear rents and for future rents. All the three suits were decreed by the judgments dated 07.09.2015. 6. Three separate appeals were preferred against the aforesaid judgments and decrees being Title Appeal No.68/2015, Title Appeal No.70/2015 and Title Appeal No.69/2015 corresponding to Title Suit No.260/2003, Title Suit No.259/2003 and Title Suit No.261/2003 in the Court of the learned Additional District Judge No.1, Kamrup (Metro) at Guwahati. Title Appeal No.68/2015 was dismissed vide judgment dated 23.05.2016; Title Appeal No.69/2015 was dismissed by judgment dated 24.05.2016 and Title Appeal No.70/2015 was dismissed by judgment dated 26.05.2016. 7. Against the dismissal of Title Appeal No.68/2015, Title Appeal No.69/2015 and Title Appeal No.70/2015, three separate civil revision petitions were filed, which were registered as CRP No.300/2016, CRP No.299/2016 and CRP No.301/2016, respectively. By judgments dated 24.03.2017, these civil revision petitions were dismissed. 8. To make the narration complete with regard to Title Suit No.8/2003 (Title Suit No.436/2006), it is appropriate to state herein that the same was dismissed vide judgment & order dated 12.03.2012. By judgments dated 24.03.2017, these civil revision petitions were dismissed. 8. To make the narration complete with regard to Title Suit No.8/2003 (Title Suit No.436/2006), it is appropriate to state herein that the same was dismissed vide judgment & order dated 12.03.2012. Against the dismissal of the aforesaid Title Suit, Title Appeal No.54/2012 was preferred in the Court of the learned Civil Judge No.3, Kamrup and the said appeal was also dismissed vide judgment & order dated 04.02.2013. The second appeal being RSA No.166/2013 preferred against the said judgment, was also dismissed vide judgment & order dated 13.08.2013. 9. The plaintiff (the respondent herein) had instituted three title execution cases being Title Execution Case No.45/2015, Title Execution Case No.46/2015 and Title Execution Case No.47/2015 corresponding to Title Suit No.259/2003, Title Suit No.260/2003 and Title Suit No.261/2003. The petitioner in CRP No.305/2017 filed an application under Section 47 read with Section 151 CPC in Title Execution Case No.46/2016, which was registered as Misc. (J) Case No.142/2017. An application under Order 26 Rules 9 & 10 read with Section 151 CPC was also filed in the execution case. Similar application under Order 47 read with Section 151 CPC was filed in Title Execution Case No.47/2015 and in Title Execution Case No.45/2015, which were registered as Misc. (J) Case No.143/2017 and Misc. (J) Case No.141/2017, respectively. In both the aforesaid execution cases, similar application under Order 26 Rules 9 & 10 read with Section 151 CPC were also filed. 10. The learned Munsiff No.2, Kamrup (Metro), Guwahati, by separate orders dated 20.11.2017 passed in Misc. (J) Case No.142/2017, Misc. (J) Case No.143/2017 and Misc. (J) Case No.141/2017, rejected the petitions filed under Section 47 read with Section 151 CPC as well as the applications filed under Order 26 Rules 9 & 10 read with Section 151 CPC. 11. It is against the aforesaid orders dated 20.11.2017 that these three civil revision petitions have been filed. 12. Mr. N. Dhar, learned counsel for the petitioners has submitted that the suit property, as described in Schedule-A of the plaint and purchased by the opposite party vide Sale Deed dated 09.05.2002, is not identifiable in the locality and, therefore, Schedule-B of the plaint cannot be the part of the suit property, as described in Schedule-A of the plaint. 12. Mr. N. Dhar, learned counsel for the petitioners has submitted that the suit property, as described in Schedule-A of the plaint and purchased by the opposite party vide Sale Deed dated 09.05.2002, is not identifiable in the locality and, therefore, Schedule-B of the plaint cannot be the part of the suit property, as described in Schedule-A of the plaint. He submits that even in the suit filed by the petitioners, the petitioners had indicated that the plot of land measuring 9 Lechas of land is not bounded by boundaries, as described in the Sale Deed, but in the actual site, it had different boundaries. It is submitted that without ascertaining the identity of the Schedule-A property, no eviction can take place from Schedule-B property. Relying upon Paragraph-8 of the present application, he submits that the petitioners/judgment debtors are also not in possession of the property described in Schedule-B of the plaint. Schedule-B is also not identifiable as it does not correspond with the boundaries of the suit property described in Schedule-A of the plaint, he submits. He has submitted that while dismissing CRP No.300/2016, CRP No.299/2016 and CRP No.301/2016 vide order dated 24.03.2017, at Paragraph-22, observation was made that aggrieved party may invoke Section 47 of CPC in an appropriate manner or defect in boundary can be corrected under Section 152 CPC. It is submitted by him that, accordingly, the applications under Section 47 read with Section 151 CPC was filed by the judgment debtors along with applications under Order 26 Rules 9 & 10 read with Section 151 CPC for appointment of a Commissioner to make a local investigation of the suit property for elucidating the dispute relating to the identity of the suit property as described in Schedule- A and Schedule-B of the decree. Mr. Dhar contends that, however, the learned executing Court recorded a perverse finding that this Court had already held in CRP No.300/2016, CRP No.299/2016 and CRP No.301/2016 that there are no discrepancies in the identity of the suit land and, therefore, the impugned orders dated 20.11.2016 are not sustainable in law. Mr. Dhar contends that, however, the learned executing Court recorded a perverse finding that this Court had already held in CRP No.300/2016, CRP No.299/2016 and CRP No.301/2016 that there are no discrepancies in the identity of the suit land and, therefore, the impugned orders dated 20.11.2016 are not sustainable in law. He has further submitted that the learned trial Court did not frame any issues after the Section 47 CPC petition was filed and no date was fixed enabling the parties to adduce evidence and yet the learned executing Court took an adverse view that the judgment debtors failed to adduce evidence to establish the contentions to the effect that suit property is not identifiable. 13. Referring to Paragraph-11 of CRP No.305/2017, he has also urged that without hearing the petitioner, the petition under Section 47 read with Section 151 CPC was dismissed by the impugned order. He has also submitted that the petitions filed by the judgment debtors on 20.11.2017 making a prayer for adducing evidence in Title Execution Case No.46/2015 was not even taken into consideration. He has further submitted that the execution case records were also not available with the executing Court when the order was passed, as 13.12.2017 was fixed for tagging the original case record and, therefore, it demonstrates that the learned executing Court had not really applied its mind to the contentions advanced by the judgment debtors. Mr. Dhar has placed reliance on the decisions in the case of Jai Narain Ram Lundia -Vs- Kedar Nath Khetan & Ors., reported in AIR 1956 SC 359 , Bhavan Vaja & Ors. -Vs- Solanki Hanuji Khodaji Mansang & Anr., reported in (1973) 2 SCC 40 , Century Textiles Industries Limited -Vs- Deepak Jain & Anr., reported in (2009) 5 SCC 634 , Sm. Lalmuni Devi & Ors. -Vs- Shiv Shanker Tiwary & Ors., reported in AIR 1980 Patna 184 and Dr. Madhukar Trimbak Gore -Vs- Vasant Ramkrishna Kolhatkar, reported in AIR 1983 Bombay 277. 14. Mr. S.P. Roy, learned counsel for the decree holder, by placing reliance on the documents furnished to the Court, copies of which were also furnished on an earlier date to Mr. -Vs- Shiv Shanker Tiwary & Ors., reported in AIR 1980 Patna 184 and Dr. Madhukar Trimbak Gore -Vs- Vasant Ramkrishna Kolhatkar, reported in AIR 1983 Bombay 277. 14. Mr. S.P. Roy, learned counsel for the decree holder, by placing reliance on the documents furnished to the Court, copies of which were also furnished on an earlier date to Mr. Dhar, has submitted that non-identifiably of the suit property is a bogey raised by the judgment debtors in order to frustrate and delay the execution of the decree and that there is no dispute whatsoever with regard to the identity of the suit land. Placing reliance on the suit filed by the petitioners being Title Suit No.8/2003 (Title Suit No.436/2006), he submits that a plea was taken that the owners of Schedule-A land had agreed for disposal of the entire Schedule-A land to them and accordingly, they had also arranged money but the owners (defendant Nos.1 to 3 in the suit) executed Sale Deed dated 09.05.2002 to the present decree holder and, therefore, it is obvious that plea raised regarding non-identifiably of Schedule-A and Schedule-B land is a frivolous plea. He has also drawn the attention of the Court to the cross-examination of petitioner in Title Suit No.305/2017 to contend that the same also demonstrates that there is no issue regarding identification of the Schedule-A and Schedule-B. That apart, he has strenuously contended that this Court, in its judgments dated 24.03.2017, at Paragraph-20, had already recorded a categorical finding that sufficient particulars are furnished in the plaint so as to properly identify Schedule-A and Schedule-B. He has also submitted that reliance placed by Mr. Dhar on the observations of the Court at Paragraph-22 of the said judgments are only general observations and, therefore, the learned executing Court was wholly justified in passing the impugned orders. He has placed reliance on the decisions in the case of The Managing Director (MIG) Hindustan Aeronautics Limited, Balanagar, Hyderabad & Anr. -Vs- Ajit Prasad Tarway, Manager (Purchase & Stores), Hindustan Aeronautics Limited Balanagar, Hyderabad, reported in AIR 1973 SC 76 , M/s Woolways, Shop-cum-Office, Chandigarh & Ors. -Vs- Central Bank of India, Chandigarh & Ors., reported in AIR 1990 Punjab & Haryana 92 and V. Chinna Lakshmaiah -Vs- Samurla Ramaiah & Ors., reported in AIR 1991 Andhra Pradesh 177. 15. -Vs- Ajit Prasad Tarway, Manager (Purchase & Stores), Hindustan Aeronautics Limited Balanagar, Hyderabad, reported in AIR 1973 SC 76 , M/s Woolways, Shop-cum-Office, Chandigarh & Ors. -Vs- Central Bank of India, Chandigarh & Ors., reported in AIR 1990 Punjab & Haryana 92 and V. Chinna Lakshmaiah -Vs- Samurla Ramaiah & Ors., reported in AIR 1991 Andhra Pradesh 177. 15. At the outset, it will be appropriate to take note of the judgments cited by the learned counsel for the parties. In Jai Narain Ram Lundia (supra), the Supreme Court laid down that the executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about such identity or substance, nobody but the Court executing decree can determine it and it being a matter distinctly relating to execution, discharge and satisfaction of the decree, under Section 47 of the CPC, it can only be determined by the Court executing the decree. 16. In Bhavan Vaja (supra), the Supreme Court observed that while it is true that an executing Court cannot go behind the decree under execution but that does not mean that it has no duty to find out the true effect of that decree. For construing a decree, it can and in appropriate cases, it ought to take into consideration the proceedings leading up to the decree. 17. In Century Textiles Industries Limited (supra), the Supreme Court reiterated that a Court executing a decree cannot go behind the decree; it must take the decree according to its tenor and has no jurisdiction to widen its scope. 18. In Sm. Lalmuni Devi (supra), the Patna High Court observed that the executing Court can ascertain and fix up the identity of the property in terms of the decree. In Dr. Madhukar Trimbak Gore (supra), the Bombay High Court held that where a question arises in execution regarding the identity of the property, possession of which has to be delivered to the decree holder, the executing Court ought to hold proper inquiry and determine the question. 19. In Dr. Madhukar Trimbak Gore (supra), the Bombay High Court held that where a question arises in execution regarding the identity of the property, possession of which has to be delivered to the decree holder, the executing Court ought to hold proper inquiry and determine the question. 19. In M/s Woolways, Shop-cum-Office, Chandigarh (supra), the Punjab & Haryana High Court observed that the executing Court is not enjoined by the statute to frame issues and dispose of the same in the same manner as a suit but if a party wants to lead evidence he ought to be afforded an opportunity. 20. V. Chinna Lakshmaiah (supra) is not relevant for the purpose of this case as the said case relates to allegations of fraud, which is not the case here. 21. The Managing Director (MIG) Hindustan Aeronautics Limited (supra) laid down the proposition that in exercise of powers under Section 115 CPC, the High Court cannot set aside an order of the first Appellate Court when it was not the case set up that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. 22. Having noted the principles emerging from the judgments referred to hereinabove, it will now be appropriate to consider the submissions advanced by the learned counsel appearing for the parties. To appreciate the contentions in the correct prospective, I have also perused the materials on record as well as the documents furnished to the Court, as referred to in Paragraph-14 of this judgment. 23. That the fact that the judgment debtors had sought for a declaration in their suit being Title Suit No.8/2003, which was subsequently registered as Title Suit No.436/2006 in the Court of the learned Munsiff No.3, Kamrup, that the Sale Deed dated 09.05.2002 is not binding upon the plaintiff in respect of Schedule-B land, itself demonstrates that the Schedule-B land was part of the land sold under Sale Deed dated 09.05.2002. 24. The pleadings in Title Suit No.8/2003 (subsequently registered as Title Suit No.436/2006) would go to show that there was no whisper with regard to Schedule-A land being not identifiable. It is pleaded that the boundary wall had been constructed just in middle portion of the entire Schedule-A land and that accordingly, they had possessed their respective portion of land and houses by running their respective business establishments. It is pleaded that the boundary wall had been constructed just in middle portion of the entire Schedule-A land and that accordingly, they had possessed their respective portion of land and houses by running their respective business establishments. It is another matter that they had given a different boundary in the suit in respect of the aforesaid 9 Lechas of land. It will also be relevant to take note of the cross-examination of the petitioner of CRP No.305/2017 on 08.06.2015 and 15.06.2015 in Title Suit No.260/2003. His cross-examination on 08.06.2015 reads as under:- "I know Sri Kalipada Rai Choudhury, Ravindra Nath Roy Choudhury & Smti. Sandhya Saha Ray Choudhury, who were the owners of A schedule land and Assam Type houses standing therein. Over the A Schedule land I along with my brothers Sri Tapan Kr. Paul & Jagabandhu Paul along with the plaintiff were tenants under the aforesaid three owners. I do not know if the plaintiff had purchased A Schedule premises from the aforesaid three owners. It is a fact that I along with my two brothers had instituted T.S. 8/2003 in the Court of Civil Judge No.2, Kamrup (M) against the plaintiff and aforesaid three owners seeking cancellation of the Sale Deed by which the plaintiff had purchased the A schedule premises. Exhibit 11 is the plaint of T.S. No.8/2003. In the said suit I along with my two brothers had claimed cancellation of the Sale Deed for land measuring 4 & Lechas which is part of Schedule A land. T.S. 8/2003 was transferred to Court Munsiff No.3 and renumbered as T.S. 436/2006 and vide judgment passed on 15.03.2012 that suit got dismissed. Ext. 17 is the certified copy of judgment dated 15.03.2012. Against the said judgment & decree passed on T.S. 8/2003 we have preferred Appeal bearing T.A. 54/2012 which was also dismissed vide judgment and decree dtd. 04.02.2013. Ext. 18 is the certified copy of judgment and decree dtd. 04.02.2013 passed on T.A. 54/2012. Then we preferred RSA No.166/2013 which also got dismissed vide judgment & Order 13.08.2013. Ext. 19 is the judgment & Order dtd. 13.08.2013. Myself and my two brothers had came to know about the purchase of schedule A premises after filing of T.S. 436/06 when the said suit was in the middle stage. 04.02.2013 passed on T.A. 54/2012. Then we preferred RSA No.166/2013 which also got dismissed vide judgment & Order 13.08.2013. Ext. 19 is the judgment & Order dtd. 13.08.2013. Myself and my two brothers had came to know about the purchase of schedule A premises after filing of T.S. 436/06 when the said suit was in the middle stage. After purchase of schedule A land by plaintiff myself and my brothers have not received any notices for attorning the tenancy in favour of the plaintiff. During pendency of T.S. 436/06 myself and my two brothers came to know that plaintiff had purchased the A schedule premises from the owners. But even thereafter myself and two brothers have not tendered any rent to the plaintiff and only paying the same to the previous owner of the premises by depositing monthly rents in Court." 25. Relevant extract of his cross-examination on 15.06.2015 reads as under:- "I do not remember it suit premises is measuring 24X6 feet. The Schedule B suit premises is correctly described in the plaint though I do not remember length and breadth of the plaint." 26. From the above, it is seen that it was stated by him that Kalipada Roy Choudhury, Rabindra Nath Roy Choudhury and Smti. Sandhya Saha Roy Choudhury were owners of Schedule-A land and the Assam type house standing thereon and that he along with two brothers and the plaintiff were tenants under the aforesaid three owners. It was also stated that Title Suit No.8/2003 was filed seeking cancellation of the Sale Deed by which plaintiff had purchased the Schedule-A premises. The evidence extracted above clearly demonstrates that the petitioners themselves are aware what is Schedule-A land. It was also admitted by him that Schedule-B premises is correctly described in the plaint, though he did not remember the length and breadth as mentioned in the plaint. 27. Issue of non-identifiably of the suit land was also raised in CRP No.300/2016, CRP No.299/2016 and CRP No.301/2016. In Paragraphs-19 and 20 of the judgment & order dated 24.03.2017 passed in the aforesaid civil revision petitions, this Court held as under:- "19. Coming to the next question raised by the petitioner's counsel regarding discrepancy in the description of the land contained in the schedule, it must be mentioned herein that the objection of Mr. In Paragraphs-19 and 20 of the judgment & order dated 24.03.2017 passed in the aforesaid civil revision petitions, this Court held as under:- "19. Coming to the next question raised by the petitioner's counsel regarding discrepancy in the description of the land contained in the schedule, it must be mentioned herein that the objection of Mr. Dhar is primarily on the ground that there is no mention of SRCB Road in the boundary description in respect of the Schedule-B land. For the purpose of proper appreciation of the contentions raised by the petitioner's counsel, Schedule-A and Schedule-B as contained in the plaint are reproduced here-in-below : 'SCHEDULE-A A plot of land measuring 9 Lechas covered by Dag No. 116, K.P. Patta No. 477 of village Sahar Guwahati, Part- II, Mouza Guwahati under the Sub-Registry office at Guwahati in the district of Kamrup, Assam, and an 60 years old Assam type Commercial House standing thereon with existing tenant’s. The land is bounded as follows: North:- Drain and road, South:- Drain and road, East:- Sri Rajani Kanta Roy, Shri Pramod Nath Sarma, (Sri Babu Lal Ram Swarup Bajaj) West:- Sri Raimohan Paul and Sri Lalmohan Paul SCHEDULE-B All that an Assam type room measuring 6'x24' (L. type) being part of Holding No. 9 of Ward No. 29 situated over a plot of land covered by K.P. Patta No. 477, Dag No. 116 of village Sahar Guwahati 2nd Part, Mouza Guwahati situated at Dewan Patty road, Fancy Bazar, Guwahati -, being part 'A' schedule land and houses and bounded as follows:- North:- Other room of plaintiff in possession of Subodh Krishna Paul. South:- Babulal Ramswaroop Bajaj East:- Other room of the plaintiff let out to Sri Jagabandhu Paul. West:- Dewan Patty Road." 20. From an examination of the schedules contained in the plaint, I find that the Schedule-A does not mention about the SRCB Road. In paragraph 26 of the plaint, however, sufficient mention has been made regarding location of the Schedule-A property in the proximity of SRCB Road and Dewan Patty Road, Fancy Bazar. From the pleadings contained in the plaint, it is evident that the Schedule-A land is actually located close to the SRCB Road. That apart, in the Schedule-A, mention has also been made of "drain and road" although without indicating SRCB Road. From the pleadings contained in the plaint, it is evident that the Schedule-A land is actually located close to the SRCB Road. That apart, in the Schedule-A, mention has also been made of "drain and road" although without indicating SRCB Road. However, it is possible that the description of Schedule-A has been given in terms of the schedule contained in the original sale deed which might not have any reference to the SRCB Road. From a comparative analysis of the pleadings contained in the plaint, this Court is of the view that there are sufficient particulars furnished in the plaint so as to properly identify the Schedule-A and Schedule-B land." (emphasis supplied by this Court.) 28. It was also held in Paragraphs-21 and 22 of the aforesaid judgment & order dated 24.03.2017 as under:- "21. In the case of Pratibha Singh Vs. Shanti Devi Prasad reported in (2003) 2 SCC 330 the Supreme Court has held that when a suit involving immovable property has been decreed and the property is not definitely identified, the defect in court record caused by over-looking the provisions contained in Order 7 Rule 3 CPC and Order 20 Rule 3 CPC is capable of being cured. The relevant observations made in the said judgment is quoted here-in-below: 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 overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC 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 of the CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. 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. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. 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 of the CPC. 22. As noted above, this court is of the opinion that there is no noticeable discrepancy in the description of the suit property made in the plaint creating any genuine doubt about the true identity of the suit property. However, even assuming that there is any such defect in description of the suit property, from the aforesaid decision of the Supreme Court, it is clear that such defect can be corrected under Section 152 CPC or the aggrieved party may invoke Section 47 of the CPC in an appropriate manner." (emphasis supplied by this Court) . 29. A perusal of the aforesaid paragraphs would go to show that this Court had recorded a finding that sufficient particulars are furnished in the plaint so as to properly identify the Schedule-A and Schedule-B land and that there is no noticeable discrepancy in the description of the suit property made in the plaint creating any genuine doubt about the true identity of the suit property and such finding has attained finality. Reliance placed by Mr. Dhar in the observations in the later part of the said paragraph, which reads, "However, even assuming that there is any such defect in description of the suit property, from the aforesaid decision of the Supreme Court, it is clear that such defect can be corrected under Section 152 CPC or the aggrieved party may invoke Section 47 of the CPC in an appropriate manner", to contend that this Court had permitted invocation of Section 47 CPC to the aggrieved party or correction under Section 152 CPC, is misplaced. The sentence begins with an assumption and, therefore, having regard to the fact that a finding is already recorded, it is obvious that the same is a general observation of the Court that in a given case, a defect of property being not properly identified can be corrected under Section 152 CPC or by invoking Section 47 CPC in an appropriate manner. It is to be noted that in the previous paragraph, i.e. in Paragraph-21, in the context aforesaid, the Court had extracted Paragraph-17 of the judgment of the Supreme Court in Pratibha Singh -Vs- Shanti Devi Prasad, reported in (2003) 2 SCC 330 . 30. Petition No.1907/2017 was the petition under Order 26 Rules 9 & 10 read with Section 151 CPC. Misc. (J) Case No.142/2017 was registered on the petition filed by the petitioners under Section 47 read with Section 151 CPC. Order dated 15.07.2017 goes to show that 28.07.2017 was fixed for hearing on both Petition No.1907/2017 and the Misc. Case under Section 47 CPC. By placing reliance on Paragraph-11 of CPR No.305/2017, Mr. Dhar had argued that the petitioner was not heard in the Section 47 CPC petition. Order dated 28.07.2017 belies the aforesaid contention, wherein it is specifically recorded that the parties were heard in Misc. (J) Case No.142/2017, which was registered on the basis of the petition under Section 47 CPC. Order dated 28.07.2017, however, did not reflect hearing on the Petition No.1907/2017 but 07.09.2017 was fixed for orders on both on the petition as well as in the Misc. Case. No grievance was made against the aforesaid order at any point of time prior to the passing of the impugned order contending that the petitioners were not heard in either of these two petitions and, therefore, it is obvious that it was a mere omission to record hearing on Petition No.1907/2017. Order dated 20.11.2017 passed in Title Execution Case No.46/2015, directing the Bench Assistant to tag the original case record, does not establish that original case records were not available when the impugned order dated 20.11.2017 was passed in the Misc. Case. Rather, after disposal of the Misc. Case, the same are to be tagged with the execution case. The impugned order dated 20.11.2017 also refers to perusal of case records. 31. The statute does not enjoin the executing Court to frame issues. Case. Rather, after disposal of the Misc. Case, the same are to be tagged with the execution case. The impugned order dated 20.11.2017 also refers to perusal of case records. 31. The statute does not enjoin the executing Court to frame issues. The petitioners did not file any petition before hearing was concluded praying for an opportunity to lead evidence and in that view of the matter, the petition filed on 20.11.2017, which was the date fixed for order on the two petitions filed by the judgment debtor (s), is of no consequence. 32. In view of the above discussions, there is no merit in these petitions and accordingly, they are dismissed. No cost.