BHARAT MOTORS Vs. SAVITRI

JUDGEMENT

(1.) This petition challenges the order dated 04.01.2018, passed by the learned Civil Judge (Senior Division), First Court, Cuttack in Execution No.25 of 2016, whereby, the application filed by the D.Hrs.-opposite parties under Order 6 Rule 17 CPC for amendment of the execution petition has been allowed.

(2.) Bereft of unnecessary details, the short facts of the case are that plaintiffs-opposite parties instituted C.S. No.6785 of 2014 before the learned Civil Judge (Senior Division), Cuttack, for eviction of defendants from the suit premises, delivery of possession, arrear house rent and damages with interest. The suit was decreed. The defendants were directed to deliver vacant possession of the suit premises within three months, pay arrear rent of Rs.40,000/- per month from November, 2013 to March, 2014 and damages @Rs.80,000/- per month from 1.4.2014 till delivery of vacant possession. Decree was drawn up on 25.06.2016. D.Hrs. levied Execution Case No.25 of 2016. Felt aggrieved, defendants filed RFA No.10 of 2016 before the learned District Judge, Cuttack. Plaintiffs-respondents had filed crossobjection. The appellate court did not interfere with the finding of the learned trial court except to the order pertaining to fair and equitable rent and modified the same to Rs.30,000/- instead of Rs.40,000/- per month from August, 2008 to October, 2013. The other findings of the trial court were affirmed. The cross-objection was dismissed. Consequent upon the modification of the decree passed by the learned First Appellate Court, the D.Hrs. filed an application under Order 6 Rule 17 CPC for amendment of the execution application to incorporate the mathematical calculation of the arrear rent. J.Drs. filed objection stating inter alia that the calculation made by the D.Hrs. is erroneous. They have filed R.S.A. No.337 of 2017 before this Court assailing the judgment passed by the learned appellate court. The application is premature.

(3.) By order dated 04.01.2018, the Executing Court allowed the application holding that the proposed amendment is essential for execution of the decree. Mere filing of RSA No.337 of 2017 before this Court is not a ground to reject the amendment. No stay of further proceeding in the execution case has been passed. The court is duty bound to calculate correctly the arrear house rent at the time of execution of the decree.