KRISHNAN KARTHA Vs. PARIATHU
HIGH COURT OF KERALA
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(1.) The matter arises in execution of a decree for recovery of property which had been usufructuarily mortgaged in favour of the plaintiff and taken back on lease by the defendant mortgagor. The decree holder discovered when he applied for delivery in execution that there was a misdescription of the property in the decree as regards survey numbers and extent and filed a schedule before the executing court showing the correct survey numbers and area of the property for purpose of delivery. The executing court took evidence in respect of the matter by issue of a commission and eventually granted recovery of the properties as per the schedule filed by the decree holder. The learned Second Judge in appeal by the defendant judgment debtor, found that the court below had exceeded its jurisdiction in launching into an elaborate enquiry as to identity of the property and therefore dismissed the application of the decree holder. Hence this second appeal by the plaintiff.
(2.) The property involved consists of six items. In respect of the 6th item there is no dispute. Items 1 to 5 are described as situate within a single boundary and consist of various sub-divisions of one or two main survey numbers with corresponding lekkoms and areas. According to the decree holder the lekkoms and boundaries were correctly shown but the survey numbers were totally mistaken, some of them not found to exist at all inside the Revenue District and some falling outside the boundaries and the areas also were incorrect. The question is whether the learned Munsiff exceeded his jurisdiction in taking evidence for purpose of identifying the properties covered by the decree for purpose of delivery thereof in due course of execution. Learned Counsel for the special respondent urges that the executing court had no jurisdiction to make a new decree altogether under the guise of interpretation. Its duty was only to execute the decree as it stood. He referred to V. Ramaswami v. Kailasa Thevar, AIR 1951 SC 189 , and Bank of Bihar v. Sarangdhar Singh, AIR 1949 PC 8 . As a general proposition it is no doubt correct to say that the executing court has no right to go behind the decree or in any way add to or amend the terms thereof. It has only to execute the decree as it stands and any amendment thereof can be made only by the court which passed the decree. But it is always the duty of the executing court to ascertain the property which is the subject of the decree and for this purpose it is entitled to look at the paramount description of the property and abide by it. See Matiur Rahman v. Senu Lal, AIR 1938 Patna 195. The court below would appear to hold that the executing court may be competent to amend an apparent error or slip of obvious mistake made by the plaintiff but not as in the present case launch into an enquiry, for the question relating to identity of property was one within the legitimate jurisdiction of the Trial Court. It seems to me this is rather taking a too narrow view of the jurisdiction of the executing court. In my judgment when the question is as to what is included in a decree in execution the executing court has to go into the question as to what was decreed and such evidence as is necessary to ascertain what is the subject upon which the decree operates must always be taken. The evidence supplied by boundaries, extent, survey numbers and lekkoms forms the determining factors when the identity of the property is put in issue. If all these factors harmonise there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as where the extent and survey numbers do not agree with the boundaries, usually the boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. This is not an inflexible rule and the guiding principle is to apply that test which is most unlikely to be vitiated by error. See Velayudhan Thankal v. Kunjan, 19 TLJ 1142. The executing court did the right thing in taking evidence and going into the question as to what exactly was the property in respect of which a decree has been passed. It is not correct to say that the decree in the case must first be made correct in all particulars by way of necessary amendments at the trial side and must thereafter be put in execution. Learned Counsel for the decree holder relied upon a partition deed in the family of the mortgagors in which the properties covered by the decree herein are mentioned according to the correct survey numbers and area and submits that the partition deed may be looked into as evidence of subsequent conduct. It may be so. But the document though produced in the case has not even been referred to by the executing court. Whatever it be the matter requires a more thorough scrutiny than had been bestowed on it by the executing court. The lower appellate court has not also considered the matter on the merits. I therefore set aside the orders of the courts below and remand the entire matter to the executing court for trial de novo and disposal according to law and in the light of the above observations. Parties will be at liberty to adduce fresh evidence if they want. The costs incurred so far will abide the final result.;
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