KALI SARAN NANAK CHAND Vs. HARI RAM

JUDGEMENT

(1.) THIS is an execution second appeal from the order of the Senior Subordinate judge, Jullundur. The facts of this case are that a decree for possession by way of pre-emption was passed in favour of the appellant on 20th January, 1950. This decree was on the basis of a compromise that shop No. 3 indicated in red in the plan, Exhibit O. 1, the breadth of which was erroneously stated to be 9 feet 9 inches, was left with the decree-holder. In addition to this shop, the open space towards the south in continuation of the wall BE right up to the northern wall of house No. 4 was left with the decree-holder in lieu of Rs. 3200/- payable by the decree-holder to the judgment-debtor. It was indicated that a wall was to be constructed in continuation of the joint eastern wall, through the entire length, and this newly constructed wall would be treated as joint. In consequence of this compromise, a joint wall had been constructed as indicated in continuation of the eastern wall of the shop indicated by the letters BE. The decree-holder had deposited the sum of Rs. 3,200/- as required by the trial court After the joint wall had been constructed, the decree-holder took out execution on 17th January, 1953. The executing Court issued notice to the judgment-debtor-respondent who filed objections. The main plea of the judgmentdebtor-respondent was that the decree had been fully satisfied long ago. The decree-holder-appellant contended that the decree had not been satisfied, as under the terms of the compromise, and the decree based on the compromise, he was entitled to an area with a breadth of 9 feet 9 inches, whereas, what he has been given, is an area with a breadth of 8 feet 8 inches only. The decree-holder's grievance was that he has received an area which is short by width of 1 foot 1 inch.

(2.) ON the pleadings of the parties the following issues were struck by the learned sub-Judge:-1. Has the decree been satisfied outside the Court? 2. Relief. Both the courts below decided issues against the decree-holder-appellant, who has now presented a second appeal in this Court. The real controversy centres round the width of 1 foot 1 inch. There is no doubt an obvious error so far as the measurements are concerned as the compromise deed and decree specifically indicate that the width is 9 feet 9 inches and it is an admitted fact that the width on the spot does not exceed 8 feet 8 inches. If one were to look at the measurements it is not possible to reconcile the measurements upon the spot with measurements in the compromise deed and decree based upon it.

(3.) MR. Som Datta Bahri on behalf of the decree-holder-appellant contends that a mistake having crept in the decree it is not open to the executing Court to go behind the decree which must be executed as it stands. Moreover, he argues that the mistake cannot be corrected by the executing Court. It is for the judgment-debtor to apply to the Court which passed the decree under the provisions of section 151 of the Code of Civil Procedure to get the error rectified. He based his contention upon a decision of the Bombay High Court in Krishnaya Parbhaya v. Meghraj Paparam, AIR 1940 Bom. 10 (A ). In that case it was held that where the description of the property is incorrect in the decree itself, the executing Court cannot rectify it. It is only the Court which passed the decree that can correct the mistake in the exercise of its inherent powers under Section 151. The reason given for this conclusion was that if the Court passing the decree, corrects the mistake and amends the decree, the amended decree is appealable, but if it refuses to do so the order of refusal is not a decree and no appeal lies against it. The above bombay decision is distinguishable on facts. It was not a case of property having been described correctly by words and measurements having been wrongly given. That decision is no guide for deciding the point in controversy arising in this case.