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.Equivalent Citation: AIR2003SC643, 2003(1)BLJR360, JT2002(10)SC302, (2003)2SCC330
IN THE SUPREME COURT OF INDIA
Decided On: 29.11.2002
Appellants: Pratibha Singh and Anr.
Vs.
Respondent: Shanti Devi Prasad and Anr.
Hon'ble Judges: R.C. Lahoti and Brijesh Kumar, JJ.
Property – Order 7 rule 3 of Civil Procedure Code, 1908 – Defendant judgment debtors entered
into an agreement to sell properties in favour of plaintiff decree-holders - Plaintiff decree-holders
filed a suit for specific performance of the agreement for sale – Suit property described by Khata
numbers, plot numbers, sub-plot numbers, area, village and boundaries – No map of the land
attached with the plaint – Court held proper map had to be filed with the plaint – Sub-plots not
capable of being identified by boundaries nor by numbers as numbers do not appear in record of
settlement or survey
Civil Procedure Code – Order 21 rule 32 and 34 and Section 47 – Execution of decree for specific
performance – Decree holder may prepare draft of document in terms of decree – Court shall
serve on judgment debtor together with notice requiring his objection – Draft sale deed along with
notice served by court – No determination by executing court that the immovable property as
delineated and demonstrated in the map was the property forming the subject matter of this
agreement – Error committed by court to be rectified as possession mortgage yet not yet taken by
decree holder
Civil Procedure Court – Order 41 ruke 6 – high court stayed the education procedures in appeal
and directed judgment data to deposit Rs, 5,000 by way of security – In absence of any judicial
order made by court security cannot be appropriated.
ORDER
1. Leave granted.
2. Failure on the part of plaintiffs to give correct, specific and exact description of the immovable property
forming subject- matter of suit, added by omission on the part of the Trial Court to insist on compliance by
the draftsman of the plaint with the rules of pleadings, has resulted in a decree which is yet to witness its
full execution and satisfaction though the litigation has by this time stretched over two decades.
3. The parties are appearing in person and we have heard them at length. We propose to make an order
which would finally bury - to the extent we can - the hatchets so far wielded by the parties. The directions
which we propose to make, after briefly setting out the facts, are partly in exercise of jurisdiction conferred
on this Court by Article 142 of the Constitution of India for doing complete justice in the lis before us.
4. Smt. Pratibha Singh, the appellant No. 1 is the wife of Shri Madhusudan Prasad Singh, the appellant
No. 2. The appellant No. 2 is power of attorney holder for appellant No. 1. Smt. Shanti Devi Prasad, the
respondent No. 1 is the wife of Shri Lakshmi Kant Singh, respondent No. 2. Respondent No. 2 is also
power of attorney holder for respondent No. 1. The agreement to sell forming subject-matter of decree for
specific performance thereof was entered into between Smt. Pratibha Singh as vendor and Smt. Shanti
Devi Prasad as vendee. However, it appears that the suit for specific performance was filed by Smt.
Shanti Devi Prasad and Shri Lakshmi Kant Singh, arrayed as plaintiffs against Smt. Pratibha Singh and
Shri Madhusudan Prasad Singh, arrayed as defendants. For the sake of convenience the former two will
be referred to as the plaintiff-decree holders while the latter two will referred as the defendant judgment-
debtors.
5. The suit property is a piece of land admeasuring 8 kathas situated in village Hinoo of P.S. Doranda in
District Ranchi. It is part of Revenue Survey No. 595 which has a larger area. Vide registered deed of sale
dated 21st June, 1975, the defendant judgment-debtors had purchased a piece and parcel of land
measuring 9 decimals (0.09 acres) out of Revenue Survey plot No. 595 which was designated as sub-plot
No. 595/II out of Khata No. 9, Khewat No. 8 of P.S. Ranchi, P.S. No. 225. A map of the property so
purchased was annexed with the Deed of Sale. By yet another registered Deed of Sale dated 11th June,
1976, the defendant judgment-debtors purchased another piece and parcel of land measuring 11 kathas
3 Chattacks out of Revenue Survey plot No. 595 which has described as sub-plot No. 595/I out of Khata
No. 9 Khewat No. 8 P.S. Ranchi, P.S. No. 225. The boundaries of the land covered by the respective sale
deeds were stated in the deeds of sale and map describing the location of land was each annexed
therewith. It is clear that two pieces of land so purchased by the defendant judgment-debtors though
described in the deeds of sale as survey Nos. 595/II and 595/I were not so designated as sub-plots in the
revenue records - either the record of rights or in the revenue survey map.
6. The defendant judgment-debtors entered into an agreement to sell sub-plot No. 595/I area 6 kathas
and 595/II area 2 kathas total area 8 kathas (equivalent to 2.44 acres) in favour of the plaintiff-decree
holders. It is not disputed that 8 kathas of land forming subject-matter of agreement to sale is out of the
same land as the defendant judgment-debtors had purchased through the two sale deeds dated
21.6.1975 and 11.6.1976 referred to hereinabove. The plaintiff-decree holders filed a suit for specific
performance. In the plaint the suit property was described as under:
"SCHEDULE OF THE SUIT LAND
All that piece and parcel of land measuring 8 (eight) Kathas out of total area of 17 Katha, 4 chatak as
mentioned below:-
Khata No.
Plot No. Sub Plot No.
Area
9 595 595/I 6 Kathas
" 595 595/II 2 Kathas
situated at Village Hinoo, P.S. Ranchi, P.S. No. 225, District Ranchi bounded and settled as follows:-
North-
Portion of R.S. Plot No. 595
South-
Portion of Sub-plot No. 595(I)
belonging to the defendant No. 1
East- Ranchi Chaibasa Main Road
West- Portion of R.S. Plot No. 595"
7. The suit was decreed. The principal relief that was allowed to the plaintiff-decree holders was relief No.
1 as prayed for in the plaint which is reproduced hereunder:
"Claim for :(i) That the defendants be directed to accept the balance amount of the consideration under
the agreement dated 30.11.78 read with the agreement dated 4.9.79 within a time to be fixed by the court
and to execute and register a deed of sale with respect to the suit lands as described in the schedule of
the plaints in favour of the plaintiffs No. 1 and 2 as per terms of the said agreement failing which the said
sale deed by executed and registered through the court at the cost and expenses of the defendants."
8. The decree reads as under:
"It is ordered and decreed that the suit is decreed on contest with cost. Pleader's fee of Rs. 36/- and
pleader Clerk fee Rs. 4/- are also allowed. The defendants are directed to accept the balance amount of
the consideration money under the agreement dated 30.11.78 read with the agreement dated 4.9.79 and
are further directed to execute and register the sale deed of the suit lands within a period of two months
from the date of order failing which the plaintiffs shall be at liberty to get it executed through the process
of the Court and that the sum of Rs. 3529.95p. (Three thousand five hundred and twenty nine and paise
ninety five) as paid by the defendants to the plaintiffs on account of the costs of this suit."
9. As there was no map of the land attached with the plaint, the decree too is not accompanied by any
map of the property forming subject-matter of decree. The decree refers to the decretal property as "suit
lands" which obviously means the lands forming subject matter of suit as per plaint averments.
10. It is not disputed that in all an amount of Rs. 32,000/- was required to be paid by the plaintiff-decree
holders to the defendant judgment-debtors as balance of consideration.
11. It appears that the defendant judgment-debtors did not execute the sale deed as decreed, and
therefore, the plaintiff-decree holders had to file an execution application. At one stage of the execution
proceedings the plaintiff-decree holders filed a draft of sale deed accompanied by a map of the suit
property to be executed and registered by the defendant judgment-debtors. Admittedly this map was
drawn by the plaintiff-decree holders and filed for the first time during the execution proceedings and as
accompanying the draft sale deed. As we have already stated neither the plaint nor the decree was
accompanied by any map and so also the revenue survey map did not indicate sub-plot No. 595/I and
595/II. These sub-plots find mention either in the two registered deeds of sale whereby the suit property
was acquired by the defendant judgment-debtors or in the map annexed with the court sale deed.
12. The Executing Court directed the drafts sale deed submitted by the plaintiff-decree holders, along with
the map forming part of the draft sale deed, to be executed and registered. That was done. Thereafter, it
appears that the plaintiff-decree holders also got possession over some property purportedly the decretal
property, but there was some dispute raised and the judgment-debtors succeeded in possession over the
property being restored to them. As on the date, it is an admitted position, that the sale deed as per the
draft filed by the plaintiff-decree holders stands executed and registered under the directions of the Court
but the possession over the suit property is with the defendant judgment-debtors. There is also a dispute
raised by the judgment-debtors that full balance consideration has not yet been deposited by the plaintiff-
decree holders and realised by the defendant judgment-debtors; it is stated to be short by Rs. 5000/-.
13. At the time of hearing the parties raised very many contentions and we have told them that the
concern of this Court is to put an end to the litigation guided by the overriding consideration that the
decree of a competent Court having achieved a finality must be honoured while the judgment-debtors
must receive full consideration and at this stage we would not permit sheer technicalities coming in the
way of execution, discharge and satisfaction of the decree. It has also to be seen that the decree-holders
acquire title and enter into possession over the property which defendant judgment-debtors intended to
sell while the latter should not be completed to part with any property which they did not intend to sell.
14. Out of the voluminous documents brought on record by the parties we have carefully compared the
maps annexed with the registered sale deeds of the defendant judgment-debtors with the map annexed
with the sale deed executed by the Court in execution of the decree and we find that there is some
difference between the exact description and location of the property between the two sets of the maps.
One of the noticeable differences is that what has been shown as survey No. 595/I in the defendants'
registered sale deed has been shown in the Court sale deed as 595/II and vice-versa. The plaintiff-decree
holders have pointed out that this is an inadvertent error though there is no difference in the location of
the property and the area forming subject-matter of Court sale deed is 8 kathas only which area was the
subject-matter of agreement to sell and also the decree. Be that as it may, some error is there.
15. Order 7 Rule 3 of the CPC requires where the subject-matter of the suit 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 Order 20 Rule 3 of the CPC. 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/I and 595/II 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.
16. The second error was committed during the execution proceedings. Under Order 21 Rule 32 of the
CPC a decree for specific performance of a contract, on failure to obey, may be enforced by the
judgment-debtor being detained in civil prison. Order 21 Rule 34 provides the procedure for execution of
documents pursuant to a decree. Where a decree is for the execution of a document the decree holder
may prepare a draft of the document in accordance with the terms of the decree and deliver the same to
the court. Thereupon the court shall cause the draft to be served on the judgment-debtor together with a
notice requiring his objections, if any, to be made out within time as the court fixes in this behalf. Where
the judgment-debtor objects to the draft, his objections shall be stated in writing and then determined. The
draft shall be approved of altered consistently with the finding arrived at by the Court. In the present case
the plaintiff-decree holders pointed out that the defendant judgment-debtors were aware of the contents of
the draft sale deed. The fact remains that the draft sale deed accompanied by a notice requiring
objections to be made by judgment-debtor as provided by Sub-rule 2 of Rule 34 of Order 21 of the CPC
was not caused to be served by the Court. The record also reveals the judgment-debtors repeatedly
insisting, may be dogmatically, on draft sale deed being delivered to them enabling objections being filed.
There is no determination by the Executing Court that the immovable property as delineated and
demonstrated in the map accompanying the draft sale deed was the property forming 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.
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. In the facts and circumstances of the present case we think it would be
more appropriate to invoke Section 47 of the CPC.
18. Another controversy between the parties is as to the sale consideration of Rs. 52,000/- (Fifty Two
Thousand only) as appointed by the decree and which has been deposited by the decree holders in the
Court. We do not have to enter into and re-open the controversy whether the amount was deposited
within time or not. The fact remains that it has been deposited. However, there is a side controversy
surviving. It appears that at one stage of the litigation when the judgment-debtors preferred an appeal in
the High Court, vide order dated 13.4.1983 passed in First Appeal No. 27/83 (R), the Court directed the
execution of the decree under appeal to remain stayed subject to the appellants depositing Rs. 5,000/- by
way of security. However, the High Court went on to add -- 'If the deposit is made by the appellants the
respondents shall be entitled to withdraw the same on furnishing security to the satisfaction of the
execution court'. We fail to understand how the amount of security demanded by the Appellate Court,
presumably in exercise of the power conferred by Rule 6 of Order 41 of the CPC, was simultaneously
allowed to be withdrawn by the respondents in the appeal. The amount was withdrawn by the appellants
herein. When the appeal was finally disposed of the High Court did not make any order as to the forfeiture
of the security in favour of the plaintiff-decree holders or as to the amount of costs or mesne profits being
taxed and recovered out of the amount of security deposit. In the absence of any further and final order
having been made, the amount of security demanded by the High Court through its interim order should
have remained as security liable to be released in favour of the person who had deposited the amount of
security. In the absence of any specific judicial order having been made, the amount of security
demanded by the High Court through its interim order should have remained as security and liable to be
released in favour of the person who had deposited the amount of security. In the absence of any specific
judicial order made by the High Court or by any other Court, the amount of Rs. 5,000/- which was
deposited by defendant-judgment debtors by way of security cannot be appropriated by the plaintiff-
decree holders and the same should be returned to the defendant-judgment debtors. This amount has
nothing to do with the amount of sale consideration.
19. Though the parties appearing in person tried to raise other issues and controversies, but we are
clearly of the opinion that excepting the abovesaid two controversies, none else survives for decision and
cannot be permitted to be raised at this belated stage of litigation.
20. The appeals are disposed of in terms of the following directions:-
(i)(a) The Executing Court shall, after going through the record of the case and after affording the parties
an opportunity of hearing, decide upon the correctness of the map filed by the plaintiff-decree holders
during the execution proceedings and presently forming part of the Court sale deed dated 23.12.1998. If
the Executing Court finds that the map forming part of the sale deed is not a correct map or needs to be
rectified either wholly or in part, that shall be done and the map correctly drawn up under the orders of the
court shall then form part of the sale deed. The necessary deed of rectification shall be executed and
registered under the orders of the court. In that eventuality, the deed of sale dated 23.12.1998 shall take
effect as rectified under the orders of the Executing Court.
(b) Thereafter possession over the property equivalent to 8 kathas of land as described in the sale deed
executed in execution of the decree and as rectified in the event of an occasion arising for the purpose,
shall be delivered by the judgment-debtors to the decree holders, if necessary through warrant of delivery
of possession.
(c) It would be in the discretion of the Executing Court to take such steps as may be necessary for fixing
the identity of the property. The Executing Court was take assistance from the previous (SIC) of title, the
Revenue Records and/or may have a survey carried out by appointing a competent Commission.
Nevertheless, the Court shall see that the decree holder gets the property as per agreement to sell and as
decreed.
(ii) The amount of Rs. 5,000/- (Rupees five thousand only) shall be deposited by the decree holders for
payment to the judgment-debtors within such time as may be appointed by the Executing Court.
(iii) The direction numbers (i) and (ii) abovesaid are independent of each other and not interdependent.
Each party must carry out its own obligation without insisting on compliance by the other as a condition
precedent.
(iv) In view of the delay that has already taken place, it is directed that the hearing of the execution shall
be expedited and concluded as early as possible, preferably within a period of four months from the date
of communication of this order.
21. In view of the above orders, no orders are called for on I.As. 9 and 10.
22. The appeals stand disposed of. No orders as to the costs.
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