JAYARAJ Vs. CHOCKALINGAM CHETTIAR

JUDGEMENT

(1.) Whether an application for amendment of Execution Petition is maintainable at any stage other than those mentioned in Rule 17 of Order 21 of the Code of Civil Procedure, 1908, is the core issue that arises for consideration in this Civil Revision Petition.

(2.) The respondent filed a suit in O.S.No.29 of 1988 against the petitioner before the learned District Munsif, Aranthangi, praying for a money decree. The suit was decreed, by judgment and decree dated 21.11.1988. Since the petitioner failed to satisfy the decree, the respondent filed an application for execution in E.P.No.44 of 2004. The respondent prayed for an order to arrest the petitioner. During the currency of the Execution Petition, the respondent filed an application in E.A.No.54 of 2004, to amend the Execution Petition to incorporate a prayer for attachment and sale of the property owned by the petitioner. The Trial Court allowed the application for amendment, by order dated 05 November, 2004. The Interlocutory Order is challenged by the petitioner primarily on the ground that the Executing Court has no power to direct amendment of Execution Petition. SUBMISSIONS:

(3.) The learned counsel for the petitioner contended that the Execution Petition is not in the nature of a civil proceeding and as such, Order 6 Rule 17 of the Code of Civil Procedure, 1908, is not applicable to the Execution Petition. According to the learned counsel, in case the decree holder has prayed for a particular mode of recovery in the Execution Petition, he should prosecute it till its logical end. It was contended that there is no provision permitting amendment of Execution Petition seeking another mode of execution.