141. Miscellaneous proceedings. - The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. [Explanation. - In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution].
Section 141 of the Code of Civil Procedure provides that the procedure made available under the Code of Civil Procedure in regard to the suits to be followed as far as it can be made applicable to all proceedings, in any Court of the Civil Jurisdiction. Explanation to Section 141 has clarified the expression "proceedings" and further laid down that proceedings under Order IX are included in this expression, however, proceedings under Article 226 of the Constitution are not included in the expression "proceedings".
7. The Code of Civil Procedure, undisputedly, is a Code of Procedure to be adopted in relation to the proceedings in a Civil Court. The provisions of the Code of Civil Procedure needs to be read together. Section 153 of the Code of Civil Procedure, as noted above, gives general powers to the Court in relation to the amendment. The intention of investing such power is to put to an end all questions raised between the parties. This general provision is narrowed down under Order VI, Rule 17 of the Code of Civil Procedure, with some precision in relation to conduct of civil suits. Section 141 of the Code of Civil Procedure, as noted above, has made applicable the procedure provided under the Code of Civil Procedure in regard to suits, in all proceedings, in any Court of civil jurisdiction. This expression "proceeding" is defined in Black Law Dictionary as "in a general sense, the form and manner of conducting juridical business before a Court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment". Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like." Execution petition/Darkhast, filed in execution of the decree, passed by the Civil Court, in a suit, can be said to be a step by the decreeholder seeking execution of the judgment and decree passed by the Civil Court. In my opinion, therefore, execution petition can be said to be a proceeding within the meaning of Section 141 of the Code of Civil Procedure. With the aid of Section 141 of the Code of Civil Procedure, even the provision laid down under Order VI, Rule 17 of the Code of Civil Procedure, can be made applicable in relation to amendment to the execution petition. In view of the provision laid down under Section 153 of the Code of Civil Procedure, general power for amendment and Order VI, Rule 17 of the Code of Civil Procedure, as well as Section 141 of the Code of Civil Procedure, in my opinion, application seeking amendment to the execution petition, is maintainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPELLATE SIDE, APPELLATE JURISDICTION
WRIT PETITION NO.: 1593 OF 2007
Syed Akbar Syed Nooroddin Vs Syed Abdul Haq S/o Syed
CORAM:
DATED:
S. B. DESHMUKH,
3rd APRIL, 2007.
1. Heard learned Counsel Mr. V.C. Solshe for the petitioner and learned Counsel Mrs. A. N. Ansari for respondent No. 1.
2. The petitioner, in this writ petition, was defendant No. 2 in Regular Civil Suit No. 43 of 1993. The respondent, in this petition, was plaintiff in Regular Civil Suit No. 43 of 1993. Respondent Nos. 2 to 7 are not represented since no notice was issued to them. Respondent No. 1 had filed caveat that is how learned Counsel Mrs. Ansari is appearing for respondent No. 1. In this writ petition, we are concerned with original plaintiff, who is respondent No. 1 and the defendant No. 2, who is petitioner. Thus, the parties, herein after, are referred to their status as plaintiff and defendant No. 2.
3. Regular Civil Suit No. 43 of 1993 was filed by plaintiff against the defendants for partition and separate possession of his share in relation to the suit properties. It is admitted fact that the suit properties consist agricultural lands as well as residential house property. Regular Civil Suit No. 43 of 1999 ended with passing of compromise decree. Copy of the compromise decree, passed in Regular Civil Suit No. 43 of 1993, is on record at Annexure-B. This compromise decree was put into execution by filing Regular Darkhast No. 11 of 2005 in the Court of learned Civil Judge, Junior Division, Udgir, district Latur. Regular Darkhast No. 11 of 2005 is filed under Section 54 of the Code of Civil Procedure, as pointed out by the learned Counsel Mr. Solshe, for the petitioner. During the pendency of Regular Darkhast No. 11 of 2005, two applications were filed at Exhibit-23 and 27 by the defendant No. 2. The trial Court passed common order below Exhibit-1, 23 and 27 in Regular Darkhast No. 11 of 2005 on 23rd March, 2006. Applications at Exhibit-23 and 27 were dismissed with costs and the Judgment Debtor No. 2 i.e. defendant No. 2 was saddled with the costs of Rs. 500/-. This order was subject matter of challenge in Writ Petition No. 3435 of 2006 by the defendant No. 2, in this Court. The writ petition is allowed by this Court by the order passed on 30th September, 2006. The trial Court was directed to recall the precept issued under Section 54 of the Code of Civil Procedure and determine the issue regarding executability of the decree in accordance with law. Time frame was given by this Court. After this order, passed by the High Court, the plaintiff/decree holder filed an application for amendment of the Regular Darkhast on 1st February, 2007. It was at Exhibit-45. This application was opposed by the defendant No. 2 by filing reply on 12th February, 2007. The trial Court, after hearing the parties, allowed the application for amendment filed by the decree holder, by the order passed on 2nd March, 2007. It is this order, which is challenged in this writ petition by the defendant No. 2.
4. Mr. Solshe, learned Counsel for the defendant No. 2, has invited my attention to Regular Darkhast No. 11 of 2005. Copy of the said execution petition is annexed with the petitioner at Exhibit-B. It appears that, this application, for execution of the decree, is filed by decree holder/plaintiff under Section 54 of Civil Procedure Code. Mr. Solshe submits that the order passed by the trial Court is perverse. According to him, it is a case of non-application of mind since the trial Court has referred the amendment to the plaint instead of amendment to the execution petition/Darkhast, filed by the decree holder. According to Mr. Solshe, learned Counsel for the petitioner/defendant No. 2, Order VI, Rule 17 of the Code of Civil Procedure, permits amendment to the pleading and not execution petition. Mrs. Ansari, learned Counsel for the decree holder, supports the order passed by the trial Court.
5. It is true that the execution petition filed by the decree holder do mention that it is filed under Section 54 of the Code of Civil Procedure. The decree passed by the Civil Court can be executed by filing an application under Order XXI of the Code of Civil Procedure. Apart from mentioning Section 54, in this execution petition, it is also titled as application for execution of decree. The decree holder, by this application, seeks execution of the decree passed in Regular Civil Suit No. 43 of 1993. Reference of Section 54 of the Code of Civil Procedure in execution petition does not change the nature of the application for execution of a decree filed by the decree holder under Order XXI of the Code of Civil Procedure.
6. Amendment is provided under Section 153 of the Code of Civil Procedure. It, thus, reads:
153. General power to amend. - The Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
It is clear from Section 153 of the Code of Civil Procedure that it vests power with the Court in relation to amendment. The Court is empowered to amend any decree or error in any proceeding in a suit. It is also contemplated under Section 153 of the Code that all necessary amendments shall be made for the purpose of determining real question or issue raised by or depending on such proceeding. Intention lying under Section 153 of the Code, is the determination of the real question or issue raised or depending on such civil proceeding. Apart from this Section 153, vesting powers with the Court, in relation to amendment, provision laid down under Order VI, Rule 17 is also embodied in the Code of Civil Procedure. Order VI is titled as "pleadings generally". Pleading is defined under Order VI, Rule 1. Pleading shall mean plaint or written statement. In relation to the amendments, Order VI, Rule 17 is material. Mr. Solshe, learned Counsel, is justified in his submission that amendment of pleadings is applicable to the plaint, if such an application is filed by the plaintiff, and written statement, if defendant seeks amendment to his pleading i.e. written statement. Order VI, Rule 17 nowhere refers its applicability to the execution petitions. However, Section 141 of the Code of Civil Procedure also needs to be considered. It, thus reads:
141. Miscellaneous proceedings. - The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. [Explanation. - In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution].
Section 141 of the Code of Civil Procedure provides that the procedure made available under the Code of Civil Procedure in regard to the suits to be followed as far as it can be made applicable to all proceedings, in any Court of the Civil Jurisdiction. Explanation to Section 141 has clarified the expression "proceedings" and further laid down that proceedings under Order IX are included in this expression, however, proceedings under Article 226 of the Constitution are not included in the expression "proceedings".
7. The Code of Civil Procedure, undisputedly, is a Code of Procedure to be adopted in relation to the proceedings in a Civil Court. The provisions of the Code of Civil Procedure needs to be read together. Section 153 of the Code of Civil Procedure, as noted above, gives general powers to the Court in relation to the amendment. The intention of investing such power is to put to an end all questions raised between the parties. This general provision is narrowed down under Order VI, Rule 17 of the Code of Civil Procedure, with some precision in relation to conduct of civil suits. Section 141 of the Code of Civil Procedure, as noted above, has made applicable the procedure provided under the Code of Civil Procedure in regard to suits, in all proceedings, in any Court of civil jurisdiction. This expression "proceeding" is defined in Black Law Dictionary as "in a general sense, the form and manner of conducting juridical business before a Court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment". Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like." Execution petition/Darkhast, filed in execution of the decree, passed by the Civil Court, in a suit, can be said to be a step by the decree holder seeking execution of the judgment and decree passed by the Civil Court. In my opinion, therefore, execution petition can be said to be a proceeding within the meaning of Section 141 of the Code of Civil Procedure. With the aid of Section 141 of the Code of Civil Procedure, even the provision laid down under Order VI, Rule 17 of the Code of Civil Procedure, can be made applicable in relation to amendment to the execution petition. In view of the provision laid down under Section 153 of the Code of Civil Procedure, general power for amendment and Order VI, Rule 17 of the Code of Civil Procedure, as well as Section 141 of the Code of Civil Procedure, in my opinion, application seeking amendment to the execution petition, is maintainable.
8. Mr. Solshe, learned Counsel, submits that this Court, in Writ Petition No. 3435 of 2006, had given a calendar of disposal of the execution petition within a period of three months. According to him, this period expired on 30th December, 2006. Mrs. Ansari, learned Counsel, submits that this time is extended by this Court subsequently. The application for amendment is filed on 1st February, 2007. Grievance raised by learned Counsel Mr. Solshe is in relation to provision laid down under Section 54 of the Code of Civil Procedure. According to him, under Section 54 of the Code of Civil Procedure, the prayer, which is made by the present decree holder, cannot be considered by the Court. The order passed by the trial Court, according to him, is also illegal on this ground. It is true that provision laid down under Section 54 of the Code of Civil Procedure is not applicable in the facts and circumstances of the present case. As noted above, Regular Civil Suit No. 43 of 1993 ended in compromise decree, the copy of which is on record. This decree is put into execution under Order XXI of the Code of Civil Procedure. Possession of the Immovable property can be sought under Order XXI, Rule 35 of the Code of Civil Procedure. Here is a decree passed by the Civil Court for delivery of possession of the Immovable property. Shares between the parties have been determined in view of the compromise decree, passed by the Civil Court. Execution of the said decree, as clarified by this Court, in the order passed in Writ Petition No. 3435 of 2006, is not within the limits of Section 54 of the Code of Civil Procedure. This decree has to be executed in view of the provision laid down under Order XXI, Rule 35 of the Code of Civil Procedure.
9. The decree holder has sought amendment in terms of the order passed by this Court in Writ Petition No. 3435 of 2006. Fact of compromise decree is admitted by the defendant No. 2. The application filed by the present decree holder cannot be faulted with. Reference can be made to the compromise decree passed in Regular Civil Suit No. 43 of 1993. This compromise, between the parties, which forms part of the decree, is also on record at Annexure-A. The execution is pending before the trial Court. In the earlier order, passed by this Court in Writ Petition No. 3435 of 2006, time frame for disposal of the execution petition is given. In this petition, I am concerned with the order permitting the decree holder to amend the execution petition. In my view, the trial Court has incorrectly referred the amendment to the plaint in its order. However, that cannot be said to be a sufficient ground for upsetting the order passed by the trial Court. Except this reference in the order, no perversity in the impugned order is pointed out so as to cause interference under supervisory jurisdiction of this Court.
10. In the result writ petition stands dismissed. No costs.
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