YEMPALLA RAMAAIAH Vs. PALLAMPARTHI KRISHNAREDDY

JUDGEMENT

(1.) Respondents filed a suit seeking a decree of perpetual and mandatory injunctions against the revision petitioner and others, which was decreed in the trial Court and confirmed by the first appellate Court, which became final. Respondents filed the E.P. to enforce the decree of mandatory injunction of removal of a wall passed in their favour and against the revision petitioner. Warrant was returned unexecuted by the bailiff on the ground that the wall which is to be removed as per the decree, was not found. Thereafter, respondents filed a petition under Section 152 C.P.C. in E.A.No.9 of 2001 seeking amendment of the decree passed in their favour which was opposed on various grounds by the revision petitioner and others. Negativing their contention, the executing Court allowed the said E.A. by the order under revision. Hence, this revision.

(2.) The main contention of the learned counsel for the revision petitioner is that since the executing Court, which is bound to execute the decree as it, has no power to amend the decree. The contention of the learned counsel for the respondents is that since the Court that passed the decree and the executing Court are one and the same, in view of the ratio in TIKO (SMT) v. LACHMAN 1995 SUPP (4) SUPREME COURT CASES 582 and PRATIBHA SINGH v. SHANTl DEVI PRASAD (2003) 2 SUPREME COURT CASES 330 the executing Court rightly allowed the petition of respondents.

(3.) For understanding the decree, the judgment can be looked into. So, at my request, the learned counsel for the respondents produced a certified copy of the judgment of the trial Court in the suit. The operative portion of the judgment reads: In the result, the suit is decreed as prayed for with costs. Defendants are permitted to remove the ID wall within one month from the date of this judgment. Failure to comply with this judgment, the plaintiff is at liberty to remove the same through process of Court. A reading of the judgment also shows that during the course of trial, a commissioner was appointed and that he drew a sketch showing the topography of the disputed area and filed it into Court along with his report. The nomenclature used to denote the locations in the commissioner's plan is different from the nomenclature used in the plaint plan. Unfortunately the judgment of the trial Court does not state that ID wall referred to in the operative portion of its judgment is the ID wall shown in the sketch prepared by the commissioner. The difficulty during execution proceedings arose because there is no ID with opwration pertiatonof the judgment wall in the plaint plan. Had the learned trial Judge mentioned 'ID wall shown in the sketch of the commissioner' there would not have any difficulty. Probably for that reason respondent filed E.A.No.9 of 2001 seeking amendment of the decree by substituting words 'PQ' in place of 'ID' because 'PQ' in the sketch filed along with the plaint is 'ID' in the sketch prepared by the commissioner. .