LOKMANYA PRASAD Vs. JAMILA KHATOON

JUDGEMENT

(1.) Challenge in this writ application is to the order dated 7.9.2005 (Annexure-7) passed in Misc. Case No. 6 of 2005, whereby the application dated 25.8.2005, filed by the Respondents / Decree Holder under Section 152 of the Code of Civil Procedure (CPC) for addition of the boundary to the description of the suit land in the decree passed in the Eviction Suit No. 20 of 1998, was allowed. The petitioner being the judgment debtor, had contested the Decree Holder's prayer for amendment of the decree in terms prayed for, on the ground that the Executing Court exercising powers under Section 152 CPC, cannot amend or incorporate the boundary of the suit land in the Decree, as the same does not come within the purview of clerical arithmetical error.

(2.) For better appreciation of the dispute, reference in brief, to the background facts of the case, would be necessary. The respondents/decree holders filed a suit for eviction against the present petitioner vide Eviction Suit No. 20 of 1998. The suit was decreed by the Trial Court in favour of the plaintiffs/decree holders vide decree dated 19.02.2003. The judgment and decree of the Trial Court was challenged by the petitioner/judgment debtor in appeal which was dismissed by the Appellate Court. A Second Appeal filed by the petitioner before this court was also dismissed on 12.05.2009. During the pendency of the Second Appeal, the respondents/decree holders filed the application for execution of the decree and for delivery of possession of the suit premises, vide Execution Case No. 1 of 2005.

(3.) On 11.8.2005. the petitioner/judgment debtor, filed an objection petition under Section 47 CPC, stating that the decree was not executable due to absence of specific description of the suit premises. The objection was registered as Misc. Case No. 4 of 2005. The decree holders also filed their rejoinder thereto, but no final order was passed on the objection. In their rejoinder to the petitioner's objection, the decree holders had argued that the description of the suit property was adequately mentioned in the plaint of the suit land but due to inadvertence, the description of the suit premises could not be incorporated in the decree by way of a specific schedule and the omission can be rectified by amendment of the decree.