TIKO Vs. LACHMAN

JUDGEMENT

(1.) Special leave granted.

(2.) Heard counsel on both sides. We find from the facts that a suit was filed for redemption of mortgage. In the plaint the area of the mortgaged land was stated to be 20 bighas 5 biswas, i. e. approximately 34 kanals. Since the land allotted after consolidation proceedings was not correctly stated in the jamabandi of 1965, the area and description given therein also crept into the plaint. The suit was ultimately decreed on 8/08/1985. The first appeal as well as the second appeal failed and the appellants before us were put in possession of the land. It appears that thereafter the respondent filed an application alleging that since the area of the land mentioned in the decree was 11 kanals and 16 marlas, the warrant for possession was wrongly issued for 34 kanals 14 marlas. Thereupon the appellants herein moved an application for amendment of the plaint and the decree to correct the area and description of the mortgaged land to that mentioned in the mortgage deed itself. Unfortunately, this application was moved before the executing court which dismissed it holding that it could (sic not) go beyond the decree. The High court dismissed the revision petition carried against that order and hence this appeal by special leave.

(3.) Technically speaking the executing court could not go beyond the decree and hence the order passed by it is not assailable. But the executing court was also the court which could have amended the plaint and the decree. Counsel for the appellants states that although the decree was passed by Sub-Judge Class III, sonepat, the very same court later exercised powers as Sub-Judge Class I and was executing the decree. It was, therefore, open to that court to treat the application as an application made before the decretal court and proceed to dispose of the same in accordance with law.