HIGH COURT OF PUNJAB AND HARYANA
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Teja Singh, C.J. -
(1.) THE facts giving rise to this Second appeal may be shortly skated. A decree for Rs. 809 with costs was passed in favour of the decree -holder on 10 -2 -1985. During the execution proceedings, 43 bighas and 5 biswas of land belonging to the judgment -debtor was ordered to be mortgaged to the decree -holder in (sic) of the decretal amount. The Khasra, numbers of the land were also mentioned in the order. Later on, the judgment -debtor objected that since he was an agriculturist and some land had to be left for his maintenance, the order of 23 -3 - 1991 whereby his entire land had been given on mortgage to the decree -holder was illegal.
This objection of his was allowed and by its second order dated 29 -8 -1992 the executing Court released 13 bighas and 5 biswas of the land and ordered the rest to be given to the decree -holder on mortgage for the decretal amount. When the papers went to the Collector he allowed only 26 bighas of the land to be given on mortgage to the decree -holder. In spite of the fact that neither in the order of the executing Court nor in that of the Collector, the land which was to be given on mortgage to the decree -holder had been specified, a mutation in favour of the decree -holder was sanctioned by the revenue authority and the decree -holder was actually put in possession of 24 bighas and 19 biswas of land on 1 -3 -1993. The judgment -debtor appealed to the Assistant Collector against the order o £ the revenue authority sanctioning the mutation and the Assistant Collector set aside the mutation on the ground that since the executing Court had not specified the khasra numbers of the fields which were to be given to the decree -holder on mortgage, the revenue authority could not determine them itself and the order sanctioning the mutation was illegal. This order of the Assistant Collector was later on confirmed by the Collector.
(2.) ON 28 -1 -2000, a fresh mutation was sanctioned whereby the mortgage in favour of the decree -holder was redeemed. The present application was made by the decree -holder on 27 -6 -2000. It was merely to the effect that since a mutation relating to the redemption of the mortgage had been made and the order by virtue of which he was given land did not specify the khasra numbers this omission be made good, the numbers which were to be given to him on mortgage should be specified, and he should be put in possession of that land. The application was opposed by the judgment -debtor on various grounds. The executing Court treating the application as one under Section 152, Code of Civil Procedure corrected its original order by specifying the khasra numbers of the land which was to be given to the decree -holder on mortgage in lieu of the decretal amount and also ordered the possession of the land to be awarded to the decree -holder. On appeal the District Judge set aside the executing Court's order. His view was that the application fell within the purview of Section 47, but since it was barred by time no action could be taken thereon. The decree -holder is the Appellant before me. It may here be mentioned that after the executing Court had ordered the land to be given to the decree -holder on mortgage in lieu of the decretal amount and probably after the decree -holder had obtained actual possession of it, an order was made recording the decree as completely satisfied. In spite of the fact that the decree -holder in his application prayed that the order be corrected and the omission that existed therein be made good by specifying the khasra numbers of which the decree -holder was to be the mortgagee, no prayer was made regarding the setting aside of the order by which the decree was satisfied. Mr. Atma Ram, learned Counsel for the Appellant, contends that since his application came within the purview of Section 47, and the executing Court was competent to deal with it, it was not necessary for him to pray that the order recording the decree as satisfied should be cancelled before any further relief could be given to him. In support of his contention the learned Counsel cited a couple of authorities in which it was held that if an order recording complete satisfaction of the decree is wrongly made it can be varied or even set aside on a proper application to the executing Court and that such an application comes within the scope of Section 47, Code of Civil Procedure I have no quarrel with this proposition, because if an order recording satisfaction of a decree is made and one of the parties comes forward with the allegation that the order is wrongly made or that it is illegal, there is no doubt that the Court can go into the matter and decide the question whether or not the order was valid. In the present case it is not the position of the decree -holder that the order recording complete satisfaction of the decree could not have been made, or that it was illegal. On the other hand, it is conceded that since the executing Court ordered the judgment -debtor's land to be given to the decree -holder on mortgage for the decretal amount and further because the possession of that land had also been taken by the decree -holder nothing remained further to be executed and as the matters stood then, the executing Court was justified in ordering complete satisfaction of the decree. What is, however, urged is that because there were omissions in the order by virtue of which the decree -holder was given the land on mortgage, the original mutation in his favour was later on set aside and he was also dispossessed of the land and since he is no longer in possession of the land that was given to him in lieu of the decretal amount it cannot be said that the decree has been fully satisfied and accordingly the order recording complete satisfaction cannot stand in his way. I agree that the order recording complete satisfaction of the decree no longer represents the actual state of affairs, but I cannot understand how the decree -holder or the executing Court can ignore it. The facts stated in the decree -holder's application may afford a good ground to cancel that order but until that is done the executing Court is functus officio and cannot afford any relief to the decree -holder by way of amending the order which is now in question. This appears to me to be the first hurdle in the decree -holder's way and this could only be overcome by a proper application for setting aside the order recording the complete satisfaction of the decree by review. Since no such application was made I hold that the present application for amendment of the order of 29 8 -1992 did not lie.
(3.) EVEN if I ignore this technical objection to the application of the decree -holder there is another difficulty in his way. Mr. Atma Ram maintained that his application is under Section 47, Code of Civil Procedure. In my opinion, the contention is without force, because the contents of the application as well as the relief which is claimed therein bring the application within the scope of Section 152, Code of Civil Procedure, rather than of Section 47. But even if I agree with Mr. Atma Ram and treat the application as one for the execution of the decree, the question is whether it is within time. Mr. Atma Ram contends that the terminus a quo for the application was the time when his client was dispossessed of the land but it is significant that no mention of that time is made in the application itself and there is no evidence on record from which it can be found when the decree -holder was actually dispossessed. In addition I do not think that even if the decree, holder was dispossessed within 3 years of the date of the application, this would make the application within time, because if it is an application for execution and comes within the scope of Section 47, so far as limitation is concerned it is governed by Article 181, Limitation Act, and it can be held to be within time only if it is shown to be within 3 years of the last step -in -aid of execution. On this point, Mr. Atma Ram has not been able to convince me and I hold that if the application is really under Section 47, it is barred by limitation.;
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