Law Web: Order VI Rule 17 cannot apply to the execution proceedings

From a reading of the aforesaid judgments it can be seen that the underlying principle enunciated therein is that the civil court is not bereft of

the power to allow an amendment at any stage, even at the stage of execution, or to permit an amendment of the execution proceeding itself as ultimately the

endeavour is to see to it that cause of substantial justice is furthered and the

decree holder is not deprived of the fruits of the decree on the ground of a technicality.

In my view, the Executing Court has erred in proceeding on the

premise that Order VI Rule 17 of the Code of Civil Procedure would be applicable. Order VI Rule 17 applies to amendment of the pleadings, and cannot apply to the execution proceedings and more so in respect of an application for possession which has been filed in which through inadvertence the description of the property in so far as the two boundaries are concerned

have not been given. In my view, therefore, the power that is to be exercised by the Executing Court is the inherent power under Section 151 and the power

to permit an amendment under Section 153 of the Code of Civil Procedure.

Though the Full Bench of Andhra Pradesh High Court has held that principles underlying both the provisions i.e. Section 153 and Order VI Rule 17 would be

the same. The Full Bench has also observed that in the special facts and circumstances the power can be exercised. In my view, the power under

Section 153 of the Code to permit the Petitioner to correct the boundaries in

the said Misc. Application No.1351 of 1980 is required to be exercised, as otherwise, it would lead to a travesty of justice as the Petitioner who has a

decree in its favour passed as long back as in the year 1974 and also a Sale Certificate dated 10/3/1980 would be deprived of the possession of the y

property on the ground of a mere technicality.

Ou vs Padma Castle Bunglow on 10 May, 2013

Bench: R. M. Savant

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.7105 OF 2012

The Ratnakar Bank Limited
Versus
1] Usha Rajaram Nimbalkar
CORAM : R. M. SAVANT, J.

Pronounced on : 10th May 2013

1 Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.

2 The writ jurisdiction of this Court under Article 227 of the rt

Constitution of India is invoked against the order dated 12/04/2012 passed by ou

the Executing Court i.e. the learned 8th Joint Civil Judge, Junior Division Kolhapur by which order Exhibit 163 filed in Civil Misc. Application No.1351 of C

1980 for correction of the description of the boundaries of the property in question came to be rejected.

The facts necessary to be cited for the adjudication of the above Petition can be stated thus :-

The Petitioner-Bank is the original Plaintiff who had filed Special Civil Suit No.22 of 1973 against one Rajaram Cement Pipes Company which y

was a partnership firm and its partners being Shri Dadasaheb Nimbalkar, ba

Mrs.Radhabai Dadasaheb Nimbalkar and Shri Rajaram Nimbalkar for recovery of the amount due to it under a loan facility granted by it to the said om

partnership firm in the year 1969. The said loan facility was secured by mortgage of the property created by Shri Dadasaheb Nimbalkar and Shri B

Rajaram Nimbalkar by executing a mortgage deed dated 30/01/1969 in favour of the Petitioner which deed was duly registered in the office of Sub-Registrar, Kolhapur bearing No.KRV/484/1969. It appears that the said property was purchased by Shri Dadasaheb Nimbalkar from Pinappa Ramchandra and Appa Pinappa Mandpe vide a registered sale deed dated 6/10/1944. lgc 2 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

4 In the context of the controversy which is involved in the present rt

Petition, it would be relevant to reproduce the description of the property ou

mortgaged to the Petitioner.

Description of mortgaged property :

Plot Nos.101 to 116 out of CTS No.2113 K/26 situated at Nimbalkar Colony, E Ward, Kolhapur admeasuring about 11131 1/9 Sq.yards bounded as follows :- h

Towards East : 30 ft road and Life Insurance Corporation Company ig

Towards West : Property of Mr. Shirgaonkar Towards South : Property of Mr. Bhausaheb Mahagaonkar H

Towards North : Property of Respondent.

The said suit came to be decreed by the learned Civil Judge, Junior Division, ba

Kolhapur by Judgment and order dated 25/6/1974. Since the said judgment was not challenged by the Defendants i.e. the partners of the said partnership om

firm, the same became final and binding. The Petitioner put the said decree in execution by filing Special Darkhast No.72 of 1976. In view of the fact that the B

decree was one for recovery of money, the Executing Court by order dated 18/6/1976 granted permission to auction the said mortgaged property. The auction was held on or around 3/8/1979, however, no bids were received. The Petitioner therefore sought permission of the Executing Court to itself purchase the suit property, which was granted by the Executing Court. The Petitioner lgc 3 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

accordingly purchased the mortgaged property for an amount proportionate to the outstanding dues. Pursuant to the said purchase by the Petitioner, the rt

Executing Court directed the issuance of a Sale Certificate in favour of the ou

Petitioner in respect of the said mortgaged property which was done on 10/3/1980. In the said Sale Certificate boundaries of the said mortgaged C

property was the same as has been adverted to in the earlier part of this order. h

5 The Petitioner filed Civil Misc. Application No.1351 of 1980 on or ig

about 3/5/1980 for delivery of possession of the property purchased by it as the same was in occupation of the judgment debtors. The said application was H

filed invoking Order XXI Rule 95 of the Code of Civil Procedure. It appears that during the pendency of the said application, Shri Rajaram Nimbalkar expired y

on 8/11/1981. By an order passed by the Executing Court on 30/4/1982 the ba

present Respondents and one Shri Dhairyasheel Nimbalkar and Ms. Sushila Nimbalkar, the son and daughter of Shri Rajaram Nimbalkar were brought on om

record as his legal heirs and representatives. The said Dhairyasheel Nimbalkar on 7/2/1986 filed an objection (Exhibit 50) in the said Misc. Application B

No.1351 of 1980 objecting the said application principally on the ground that the mortgaged property is HUF/ancestral property and therefore could not have been mortgaged or sole in an auction. It appears that thereafter the Respondent Nos.1 and 3 on 19/9/1986 adopted the objection filed by Dhairyasheel Nimbalkar which objection of the Respondent Nos.1 and 3 was lgc 4 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

numbered as Exhibit 75. By an order dated 6/7/1991 the Executing Court was pleased to dismiss the said Misc. Application No.1351 of 1980 on the ground rt

that the mortgaged property was HUF property and since the objectors were ou

still minors, their rights need be protected. C

6 The Petitioner challenged the said order dated 6/7/1991 passed by the Executing Court in this Court by way of Civil Revision Application h

No.778 of 1991. During the pendency of the said Civil Revision Application, ig

Dhairyasheel Nimbalkar expired on 26/9/1991 pursuant to which Smt.Mayura Dhairyasheel Nimbalkar, the wife of deceased Dhairyasheel Nimbalkar was H

brought on record in the said Civil Revision Application. The said Civil Revision Application was disposed of by a consent order whereby the order y

dated 6/7/1991 dismissing the Misc. Application No.1351 of 1980 was set ba

aside and the Executing Court was directed to treat the objections raised by the objectors i.e. Exhibits 50 and 75 as those raised under Order XXI Rule 97 of the om

Code of Civil Procedure. The Executing Court was directed to dealt with the objections on their own merits and in accordance with law. It seems that B

pursuant to the said remand, the objections raised by Dhairyasheel Nimbalkar at Exhibit 50 were rejected by the Executing Court by its order dated 24/6/2011 on the ground that the objector is dead and no one has come forward to carry the matter further. The said order was challenged by the Respondents by filing Writ Petition No.9869 of 2011. This Court vide order lgc 5 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

dated 21/12/2011 directed the Executing Court to consider and decide the objections raised by the Respondents at Exhibit 75 within two months of the rt

appearance of the parties. The said Exhibit 75 is still pending. ou

7 Since the Respondents herein had in the execution proceeding C

raised an issue that the description of the boundaries of the mortgaged property of which possession is sought by way of Misc. Application No.1351 of h

1980 were not correct, the Petitioner filed the instant application Exhibit 163 ig

on 31/1/2012 seeking leave to correct the said error which has crept in the description of the boundaries of the mortgaged property. It was the case of the H

Petitioner in the said application that the said error in the description of the boundaries of the property was an inadvertent error and was restricted to the y

boundaries on the western and southern sides. In so far as the western side is ba

concerned, the boundary was wrongly mentioned, whereas the southern side boundary was remained to be mentioned. The Petitioner had also sought the om

appointment of the DILR, so that the property could be demarcated for being handed over.

8 The said application was opposed to on behalf of the Respondents by filing their reply which was numbered as Exhibit 164. The objection was inter-alia on the grounds mentioned in the said reply and principally on the ground that the said application suffers from gross delay inasmuch as the lgc 6 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

description of the property was sought to be corrected after a period of about 30 years. The Executing Court considered the said application and has by the rt

impugned order dated 12/4/2012 rejected the same. The said rejection, as can ou

be seen, is on the ground that the said application suffers from gross delay, and therefore, could not be permitted in view of the tests which have to be satisfied C

in respect of Order VI Rule 17 of the Code of Civil Procedure. h

9 SUBMISSIONS ON BEHALF OF THE PETITIONER BY THE ig

LEARNED COUNSEL SHRI P.S.DANI.

A] That the rejection of the application for correction of description of the property has a result of causing grave injustice to the Petitioner inasmuch y

as the Petitioner is prosecuting the matter since the year 1974 when the decree ba

came to be passed in its favour;

B] That the learned Judge of the Executing Court has erred in applying the provisions of Order VI Rule 17 of the Code of Civil Procedure B

whilst considering the application for correction of the description of the property in the application. The learned Judge failed to appreciate that the correction is not sought in respect of any pleadings but was only in respect of the mortgaged property where due to inadvertence the Western boundary was incorrectly mentioned and Southern boundary was not mentioned at all; lgc 7 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

C] That the learned Judge erred in holding that the amendment if rt

allowed would cause prejudice to the Respondents. The learned Judge failed to ou

appreciate that there is already a Sale Certificate in favour of the Petitioner- Bank wherein the boundaries have been mentioned and which Sale Certificate C

has been issued to the Petitioner pursuant to the purchase of the property by the Petitioner under the sanction of the Court. h

That the learned Judge failed to exercise the inherent power which a Civil Court is vested with under Section 151 and the power to permit H

an amendment under Section 153 of the Code of Civil Procedure. The said powers are to be exercised so that substantial justice is done to the parties. In y

respect of the said contention the learned counsel for the Petitioner relied upon ba

the following judgments. The judgment of the Apex Court reported in (2003) 2 SCC 300 in the matter of Pratibha Singh and anr v/s. Shanti Devi Prasad om

and anr. wherein the plaint was allowed to be corrected in exercise of power under Section 152 of the Code of Civil Procedure. The judgment of a learned B

Single Judge of this Court reported in 2007(2) Bom.C.R. 923 in the matter of Mahadeo Tukaram Kulal & Anr. v/s. Kisan Ayaji Bodakhe & ors wherein the description of the property in the decree was allowed to be corrected by having recourse to Section 152 of the Code of Civil Procedure. The judgment of another learned Single Judge of this Court reported in 2009(5) Bom. C.R. 5 in lgc 8 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

the matter of Hansabai Shripati Bhosale v/s. Parubai Gopal Bhosale & ors. which judgment is an exposition as to when the provisions of Sections 151, 152 rt

and 153 can be invoked. The judgment of the Full Bench of the Andhra ou

Pradesh High Court reported in AIR 1972 AP 134 in the matter of Bhoganadham Seshaiah v/s. Budhi Veerabhadrayya (died) and ors. where C

the issue before the Full Bench was whether the amendment by including a new prayer, which was tantamount to a fresh execution petition could be h

ordered after 12 years disregarding the provisions of Section 48 of the Civil ig

Procedure Code. The judgment of a learned Single Judge of the Andhra Pradesh High Court reported in 2002 AIHC 2575 reported in M.A. Rasheed H

and anr. v/s. T S Mahaboob Basha wherein the issue was correction of a money decree in exercise of powers conferred by Section 152 of the Code of y

Civil Procedure.

E] That the learned Judge failed to appreciate that the mis- om

description of the property is merely a slip, inadvertent, accidental and typographical error which has crept in, which should not come in the way of B

the Petitioner seeking justice particularly having regard to the fact that the decree was passed on 25/6/1974, Sale Certificate was issued on 10/3/1980 and the application for possession was filed on 3/5/1980 which is still pending.

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F] That the learned Judge failed to appreciate that the procedural law is a handmaid of justice and it has to be used to further the cause of rt

substantial justice and not to obstruct it. ou

G] That no prejudice would be caused to the Respondents as the C

Respondents are well aware as to the property in respect of which the application for possession has been filed. h

SUBMISSIONS ON BEHALF OF THE RESPONDENTS BY THE LEARNED SENIOR COUNSEL SHRI RAVI KADAM.

I] That there is gross delay in filing the application for amendment y

inasmuch as the application for possession has been filed on 3/5/1980 whereas ba

the application for amendment has been filed in the year 2012 i.e. after a period of 32 years, and therefore, if the amendment is allowed, the same om

would take away the vested right of the Respondents in so far as limitation is concerned.

II] That the application i.e. the Misc. Application No.1351 of 1980 as filed was not in order as Order XXI Rule 95 postulates that the application is to comply with some basic requirements and in the instant case, the same is undoubtedly the description of the property the said application filed in the lgc 10 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

year 1980 since lacking in the proper description of the property can be said to be no application in the eyes of law.

III] That since the original application filed in the year 1980 is a defective application, the application for amendment whereby the proper C

description of the property is now sought to be incorporated tantamounts to a fresh application being made in the year 2012 which is obviously barred in h

view of Article 134 of the Limitation Act as the said application has not been ig

filed within the time postulated for execution of the decree. H

IV] That assuming that the said application is an application for amendment of the Misc. Application as originally filed, the same is required to y

be filed within a period of 3 years of the cause of action arising which in the ba

instant case was in the year 1980 itself when the said Misc. Application 1351 of 1980 was originally filed containing the said mis-description and therefore in om

terms of Article 136 of the Limitation Act is barred by limitation. The learned Senior Counsel sought to rely upon the judgment of the a learned Single Judge B

of this Court reported in 2012(2) Mh.L.J. 106 in the matter of Harinayaran G Bajaj and another v/s. Vijay Agarwal and others. V] That the judgments cited on behalf of the Petitioner are clearly distinguishable as the said judgments disclose that the corrections were lgc 11 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

permitted as the mistake had occurred in the decrees which had been passed by the concerned Courts, and therefore recourse to Sections 151, 152 and 153 rt

of the Code of Civil Procedure could not be taken exception to in the said ou

cases. However, in the instant case, the mistake is that of the Petitioner whilst filing the said Misc. Application No.1351 of 1980 and therefore the same C

cannot be corrected by having recourse to Sections 151, 152 and 153 of the Code of Civil Procedure. The said judgments therefore would have no h

application. The learned Senior Counsel contended, that as held by the Full ig

Bench of the Andhra Pradesh High Court the principles applicable to Order VI Rule 17 of the Code of Civil Procedure would equally apply to Section 153 of H

the Code of Civil Procedure in the matter of permitting amendments, and hence the application filed after a period of 32 years of filing the said Misc. y

Application could not be entertained. The learned Senior Counsel for the ba

Respondents sought to refer to Paragraphs 50, 51 and 53 of the said judgment. om

CONSIDERATION :

11 Having heard the learned counsel for the parties, I have bestowed B

my anxious consideration to the rival contentions. In the instant case it is required to be noted that the Petitioner has a decree in its favour passed in the suit filed by it being Special Civil Suit No.22 of 1973 which decree is dated 25/6/1974. The mortgaged property has been lgc 12 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

referred to in the plaint. Thereafter on the application filed by the Petitioner to auction the said mortgaged property for recovering of the amounts due to it rt

from the Judgment Debtors, the Executing Court by its order dated 18/6/1976 ou

granted permission to auction the said mortgaged property. In the auction notice the description of the property was given which was the same as in the C

plaint. The auction was held for the said mortgaged property on or around 3/8/1979 and since no bids were received, the Petitioner had obtained h

permission from the Executing Court to itself purchase the said mortgaged ig

property which permission was granted by the Executing Court. The Petitioner was thereafter issued Sale Certificate dated 10/3/1980 in respect of the said H

mortgaged property which was purchased by it and in which Sale Certificate the description of the mortgaged property is as under :- y

Description of property :

Plot Nos.101 to 116 out of CTS No.2113 K/26 situated at E Ward, Kolhapur admeasuring about 11131 1/9 Sq.yards bounded as follows :- om

Towards East : 30 ft road and Life Insurance Corporation Company Towards West : Property of Mr. Shirgaonkar B

Towards South : Property of Mr. Bhausaheb Mahagaonkar Towards North : Property of Respondent.

12 Since the mortgaged property, which was now covered by the Sale Certificate issued in favour of the Petitioner, was in possession of the Judgment lgc 13 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

Debtors, that the Petitioner filed the said Misc. Application No.1351 of 1980 for possession of the property purchased by it from the Judgment Debtors. In rt

the said Misc. Application No.1351 of 1980 the description of the property was ou

as under :-

"Plot Nos.101 to 116 out of CTS No.211 /26 situated E Ward, Kolhapur admeasuring about 11121 1/9 Sq.yards bounded as follows :- h

Towards East : 30 ft road and Life Insurance Corporation Company ig

Towards West : Property of Mr. Mahagaonkar Towards North : Property of Opposite Party." H

As can be seen from the said description, there is omission to mention the y

correct boundary on the western side and omission to mention the boundary ba

on the southern side. However the boundaries of Eastern side and Northern side were mentioned. As the record discloses though the said description was om

appearing in the said Misc. Application 1351 of 1980, no objection was taken by the original Judgment Debtors and an objection was taken for the first time B

in the year 2012 when the objection under Order XXI Rule 97 of the Code of Civil Procedure filed by the heirs of the said Rajaram Nimbalkar was to be considered.

lgc 14 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

13 In view of the said objection, that the Petitioner had filed the instant Application Exhibit 163 for correcting the description of the boundaries rt

mentioned in the said Misc. Application No.1351 of 1980, i.e. to correct the ou

boundary mentioned on the Western side and to include the boundary on the Southern side.

The said Application (Exhibit 163) was filed invoking Sections 151 h

and 153 of the Code of Civil Procedure. As indicated above the said ig

application has been rejected on the ground that the same cannot be allowed in the light of the Proviso to Order VI Rule 17 of the Code of Civil Procedure. H

14 At this stage it would be relevant to refer to the judgments cited y

on behalf of the Petitioner in support of its contention that it should be allowed ba

to correct the description of the property as mentioned in the said Misc. Application No.1351 of 1980.

The judgment in Mahadeo Tukaram Kulal's case (supra) concers B

the correction of the decree by way of amendment by having recourse to Section 152 of the Code of Civil Procedure for correcting the suit property from Survey No.124/1 to Survey No.127/1. The said mistake had occurred in the judgment and decree passed by the concerned court due to wrong Survey number. mentioned in the plaint. A learned Single Judge of this Court in the lgc 15 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

context of the fact that the parties were aware as to in respect of which Survey number. they were litigating, observed that the said mistake was only a rt

typographical mistake and since the Defendant was fully aware that the ou

Plaintiff was litigating in respect of Survey No.127/1, the description of the property was required to be corrected by having recourse to Section 152 of the C

Code of Civil Procedure.

The judgment of the Apex Court in Pratibha Singh's case (supra) ig

also concerns the exercise of jurisdiction under Section 152 of the Code of Civil Procedure. In the said case the decree had to be corrected in view of the fact H

that the defect had been caused in the description of the property in the court record on account of overlooking of provisions contained in Order VII Rule 3 y

and Order XX Rule 3 of the Code of Procedure. The Apex Court was of the ba

view that the said error being an inadvertent error, not affecting the merits of the case, the same could be corrected under Section 152 of the Code of Civil om

Procedure, by the court which passed the decree by supplying the omission. The Apex Court further observed that alternatively, the exact description of B

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 of the Code of Civil Procedure. The Apex Court observed that 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. lgc 16 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

In Hansabai Shripati Bhosale's case (supra) a learned Single rt

Judge of this Court was concerned with the interpretation of the phrase "in any ou

proceeding" which appears in Sections 152 and 153 of the Code of Civil Procedure. The learned Judge held that the phrase would have to be given the C

widest amplitude and the phrase therefore covers the proceedings in the Court of Civil Jurisdiction so as to lien in favour of Court having power under h

Sections 151, 152 and 153 in favour of the Civil Court to correct errors in the ig

proceeding so as to amend judgment and decree in order to do justice between the parties. The learned Judge therefore held that the impugned order in the H

said case was liable to be sustained on the touchstone of Sections 152 and 153 read with Section 151 of the Code.

Now coming to the to the Full Bench judgment of the Andhra Pradesh High Court in Bhoganadham Seshaiah's case (supra). A reference om

was made to the Full Bench on the following issue, "whether the amendment by including a new prayer, which was tantamount to a fresh execution petition, B

could be ordered after 12 years disregarding the provisions of Section 48 of the Civil Procedure Code. The facts in the said case were that the decree-holder requested the Executing Court to direct recovery of the E.P. amount by attachment of the decree in O.S. 383 of 1954 as modified by the decree of the High Court of Andhra Pradesh in S.A. No.367/64 and direct set off of the lgc 17 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

amount due thereunder to the first respondent from the petitioner against the amount due to the petitioner from the first respondent under the decree in O.S. rt

No.30 of 1949 of Sub-Court Nellore, and to record part satisfaction for the ou

amount as may be set off. The judgment debtor in his counter had agreed to the set off. The question therefore was whether the claim for set off could be C

incorporated in the Execution Petition as filed. The Full Bench of the Andhra Pradesh High Court held that the execution of a decree is a proceeding in a suit h

and consequently Section 153 applies to such execution proceeding. The power ig

under Section 153 can be exercised for amending the execution petition even after expiry of limitation. The Full Bench of Andhra Pradesh High Court H

however observed that the said power cannot be exercised in cases in which it is quite often pointed out that amendment might work injustice to the other y

side and where it takes away from that party a right accrued to him by ba

expiration of certain time. The Full Bench held that in such class of cases it is well established that ordinarily a decree holder will not be allowed to amend om

his execution petition by including a new relief which since the date of the decree has become barred by the provisions of the Limitation Act. In the facts B

of the said case before it the Full Bench held that considering the circumstances under which adjustment of the decretal amount partially has taken place which circumstances were taken into account by the learned Judge in allowing the amendment of the pending execution petition, it is enough to say that those are special circumstances which can persuade any Court to allow lgc 18 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

amendment as in fact is done by the learned Judge. The Full Bench held that it did not think that the learned Judge has in any manner erred in principles in rt

exercising his discretion to permit amendment even beyond twelve years of the ou

decree. Any other view would only mean effecting injustice and allowing the judgment debtor to take unfair advantage and deprive the decree holder of his C

legitimate claim. The Full Bench further held that in the peculiar circumstances, the Court had ample power to allow the amendment of the h

pending execution petition in the manner in which it is allowed even though ig

twelve years have elapsed, and therefore, did not find any valid reason to interfere with the view taken by the learned Judge or differ with the conclusion H

to which he has reached.

The judgment in M A Rasheed's case (supra) also concerns ba

exercise of power under Section 153 and inherent powers under Section 151 of the Code of Civil Procedure. The learned Single Judge of the Andhra Pradesh om

High Court upheld the amendment sought in the execution proceeding as by the said amendment no new relief was sought and what was sought was only B

deleting a portion of schedule property from execution and to avoid ambiguity in sale proceedings. The learned Single of Andhra Pradesh High Court held that the procedural provisions always enable the courts to pass appropriate orders consistent with justice and equity to render substantial justice to the parties, and that recourse could be had to Sections 153 and 151 of the Code of lgc 19 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

Civil Procedure to allow the necessary amendment to the execution petition to meet the ends of justice and to decide the real question in issue. rt

15 From a reading of the aforesaid judgments it can be seen that the underlying principle enunciated therein is that the civil court is not bereft of C

the power to allow an amendment at any stage, even at the stage of execution, or to permit an amendment of the execution proceeding itself as ultimately the h

endeavour is to see to it that cause of substantial justice is furthered and the ig

decree holder is not deprived of the fruits of the decree on the ground of a technicality.

16 It is in the said context that the facts of the instant case would y

have to be considered. As mentioned herein above, the Petitioner itself was ba

permitted to purchase the mortgaged property pursuant to which purchase a Sale Certificate has been issued in favour of the Petitioner which shows the om

boundaries of the property purchased by the Petitioner. The said sale in favour of the Petitioner was preceded by the auction notice in which also the B

boundaries were mentioned. The parties were therefore very well aware as to the property in respect of which the application for possession has been filed by the Petitioner under Order XXI Rule 95 of the Code of Civil Procedure. The omission to mention the correct boundary on the western side and omission to mention the southern side boundary in the said application can only be lgc 20 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

attributed to inadvertence on the part of the Petitioner. In view of the fact that the parties were well aware as to in respect of which property the execution rt

proceedings were filed as also the application for handing over the possession, ou

the amendment of the description of the property in the said Misc. Application No.1351 of 1980 can therefore hardly cause any prejudice to the Respondents. C

It is further required to be noted that the Respondents have also raised the objection as regards the description of the property only in the year 2012, h

after this Court had directed the objections raised by the Respondents to be ig

one under Order XXI Rule 97 of the Code of Civil Procedure, the Executing Court, as can be seen, has proceeded on a premise that the provisions of Order H

VI Rule 17 of the Code of Civil procedure would be applicable and therefore by relying upon the judgment of a learned Single Judge of this Court in y

Harinarayan G Bajaj's case (supra) has held that the application for ba

amendment filed in the year 2012 was filed beyond limitation, and therefore could not be allowed.

In my view, the Executing Court has erred in proceeding on the B

have not been given. In my view, therefore, the power that is to be exercised by the Executing Court is the inherent power under Section 151 and the power rt

to permit an amendment under Section 153 of the Code of Civil Procedure. ou

Though the Full Bench of Andhra Pradesh High Court has held that principles underlying both the provisions i.e. Section 153 and Order VI Rule 17 would be C

the same. The Full Bench has also observed that in the special facts and circumstances the power can be exercised. In my view, the power under h

Section 153 of the Code to permit the Petitioner to correct the boundaries in ig

the said Misc. Application No.1351 of 1980 is required to be exercised, as otherwise, it would lead to a travesty of justice as the Petitioner who has a H

decree in its favour passed as long back as in the year 1974 and also a Sale Certificate dated 10/3/1980 would be deprived of the possession of the y

property on the ground of a mere technicality. The judgment in Harinarayan ba

Bajaj's case on which reliance has been placed by the Trial Court has no application in the fact situation of the instant case. om

The submission of the learned Senior Counsel appearing on behalf B

of the Respondents that by seeking amendment and by including a prayer for the DILR be directed to demarcate the property to facilitate handing over of the same to the Petitioner, a virtually a new application has been filed cannot be accepted. As indicated above, what has been sought is the correction of the boundary on the western side and mentioning of the boundary on the southern lgc 22 of 23 ::: Downloaded on - 18/05/2013 10:50:06 ::: wp-7105.12

side. The said boundaries are already appearing in the Sale Certificate which has been issued to the Petitioner. Hence it is not as if for the first time some rt

new boundaries are sought to be mentioned and thereby a new property is ou

sought to be included in the execution proceedings. The prayer for appointment of DILR can only be said to be consequential to the main relief in C

the said application. In my view, since what is sought is only the correction of the boundaries in the said Misc. Application No.1351 of 1980, the provisions of h

Article 136 of the Limitation Act would therefore have no application and ig

consequently the judgment of the learned Single Judge in Harinarayan Bajaj's case.

17 In that view of the matter, the impugned order dated 12/4/2012 y

passed on the application Exhibit 163 would have to be quashed and set aside ba

and accordingly quashed and set aside, resultantly the application Exhibit 163 would stand allowed. The Petitioner would therefore be entitled to carry out om

the correction in the description of the property mentioned in the Misc. Civil Application No.1351 of 1980 in terms of the application Exhibit 163. B

18 Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs of the Petition. [R.M.SAVANT, J]

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Monday, 19 August 2013

Order VI Rule 17 cannot apply to the execution proceedings

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