BHARGAVA, J. - (1.)THIS matter arises out of execution proceedings and is directed against the order of the learned District Judge, Pali dated 26th November, 1955.
(2.)PANNALAL appellant obtained a decree against the respondent for recovery of possession of immovable and movable properties belonging to Murlidhar deceased. In the main suit both the parties had claimed to be the adopted son of the deceased. The suit was finally decided by the High Court and is reported in Ram Prasad Vs. PANNALAL (1 ). The immovable properties for which the suit was decreed are set out in Sch. 'e' annexed to the plaint. Sch. 'e' is as follows: - "manak 1 Vo Talao 1 Vake Moti Chowk Amardasji Ki Gali Sa: Pali Me Hai Jiske Pados Hasbzel Hai Aur Kimat Rs. 3000/- Ka Hai Aur Bagh 1 Jiski Salana Amadni Rs. 500/- Hai. Sd/- Panualal''
It will be noticed that there were three immovable properties for which the plaintiff's suit was decreed namely one house, a thala (a plot of land) and a Bagichi. Under the terms of the decree the decree holder was to get possession of these properties on payment of Rs. 7066/15/-to the respondent. The decree holder having deposited the said amount applied for execution on 27th April, 1953 and prayed for the delivery of possession over the aforesaid properties described in Sch. 'e'. An objection was taken by the court that the boundaries of the properties were not mentioned in the schedule. The decree holder therefore supplied the boundaries of the properties. A warrant for the delivery of possession of Bagichi only was issued and possession was delivered to the decree holder. Later on objections were raised by the judgment debtor firstly that Sch. 'e' was not a genuine document and did not form part of the record and secondly that as the boundaries of the Bagichi were not described in the schedule, the decree was in-executable. These objections were rejected by the executing court as well as by the High Court. The decree holder then made a request for the delivery of possession over the remaining two properties that is the house and the plot of land. On 16th July, 1955 the judgment debtor again filed objections and the main objections were that as the boundaries of the properties were not mentioned in the schedule the decree was in-executable and that the decree was not in respect of the house over which the decree holder was seeking possession and further that he was not in possession of these properties. The first objection found favour with the learned District Judge and holding that the decree was in-executable he dismissed the execution application. It is against this order that the present appeal has been filed.

It is contended on behalf of the appellant that the order under appeal is erroneous. That from the description mentioned in the schedule the property could be identified and at any rate the court could have made an enquiry to ascertain the subject matter of the decree. It is contended that the case of these properties is quite analogous to that of the 'bagichi'. In the case of 'bagichi' also no boundaries were mentioned in the schedule, still the decree holder was allowed by the executing court to give boundaries and then possession was delivered to him over that property. It is further pointed out that as this objection was not taken by the judgment debtor during the course of original suit he should not be allowed to raise this question now during the execution proceedings. Not only that but he had claimed compensation for the amount spent by him for the improvement of the house which were allowed to him under the decree.

On behalf of the judgment debtor respondent it is argued that as required under O. 7, R. 3 C. P. C. , description of the properties was not given in the plaint. Similarly in the decree boundaries of the properties in dispute were not mentioned as required under O. 20 R. 9. The description in Sch. 'e' is vague and the properties cannot be identified from it. The executing court can only construe the decree and can not go behind it by amending or varying it. In my opinion the order passed by the learned District Judge is erroneous and cannot be sustained in the circumstances of this case. It is to be remembered that the dispute between the parties related to the properties of Murlidhar deceased which were then in possession of the judgment debtor. They were described in Sch. 'e' annexed to the plaint. No objection during the suit was taken by the judgment debtor that Murlidhar was not the owner of the properties mentioned therein. In fact his case was that he was in possession of the properties and that he had spent a good deal of money for the improvement of the properties which he was entitled to get back in case the plaintiff succeeded in the suit. There can not be therefore, any shadow of doubt in regard to the identity of the properties so far as the judgment debtor is concerned. Not only that but even after the decree had been passed and possession over the 'bagichi' was delivered to the decree-holder despite the fact no boundaries of the 'bagichi' were mentioned in Schedule 'e' he admitted before the executing court that the 'bagichi' over which possession had been delivered was the same is mentioned in the Schedule. As already observed similar objections regarding the inexecutability of the decree were raised subsequently but they were overruled. Now it is for the second time that the judgment debtor has come forward with the same objections in respect of the properties in question.

It is noteworthy that it is not the judgement debtor's case that Murlidhar deceased had no house or a pale of land in Motichowk Amardas-ki-Gali or that he had more than one house or plot of land there. Had that been his case there might have been some difficulty in the execution of the decree. But under the circumstances the executing court should have issued a warrant for the delivery of possession of the properties and if the officer was not executing the warrant was not able to spot the properties the court could have made an enquiry as to ascertain the subject matter of the decree. There ought not have any difficulty in the identification of the properties because the defendant himself during the suit claimed to be in thin possession and alleged to have carried out some improvement in them. The contention that this course was not open to the executing court is without any force. Learned counsel in support of his contention has relied upon Dwarkanath Haider Vs. Kumolakant Halder, (2), Mahomed Ismail Vs. Lalla Dhundurkishore Narain (3), Chutahrubhagat Vs. Hiralal Sah (4), and Girwarprasad Narainsingh Vs. Rameshwarlal Bhagat (5 ).

In the first case there was a decree for the recovery of palla (turn of worship) and it provided that the decree holder will get the palla in the month of Bhadro immediately following that of Moheshchunder. When the decree was put in execution an objection was raised that Moheshchunder had several pallas in the month of Bhadro, it was impossible to ascertain which of the pallas of Moheshchunder's, the palla which the plaintiff had recovered, was to be immediately following. The decree holder thereupon asked the executing court to put him in possession of the palla falling in different month from that of Bhadro and it was also admitted on his behalf that Moheshchunder had more than one palla in the month of Bhadro. It was in these circumstances held that: - "the description of the property in the decree was to ascertain that it is impossible to ascertained what is decreed. It seems clear that the plaintiff cannot be put into possession by execution of any other thing than which the decree describes. '' This case is quite distinguishable. In the present case the decree had been passed in respect of a house or a plot of land situated in Motichowk Gali Amardas in the town of Pali and there is no uncertainty about the subject matter of the decree.

In the second case it was held that: - "a suit to recover land without defining boundaries cannot be maintained, because if decreed, the decree could not be executed". This case has therefore, no application as no decree had been passed and the point was taken up during the pendency of the suit itself.

In the Patna case also the question was raised during the pendency of the suit itself and the plaintiff was allowed to amend the plaint by giving a proper description of the property in dispute.

The last Patna case does not appear to be relevant. In the present case there is a substantial description of the properties which in the circumstances of the case should be sufficient to identity them and in case it is found that the property cannot be ascertained the executing court will be entitled to hold such enquiry as may be necessary to find out the subject matter of the dispute. It is undoubtedly the imperative duty of the plaintiff to give a description of the property sufficient to identify it in the plaint when the subject matter of the suit is immovable property and such defects in the plaint must be removed in the initial stages of the suit and must not be allowed to last till the stage for passing a decree is reached but even if it comes to that the court before passing any decree in such suits should see that it is done in accordance with the requirements of O. 20 R. 9. However in cases where there is a misdescription of the properties in the decree the executing court will not be exceeding if it holds an enquiry to find out the subject matter of the decree. By doing so the court will not be going behind the decree or adding to or varying its terms in any way. In this connection reference may be made to a few cases. In Bhugobatsing vs. Ramadinsingh (6), it was held that: - "the decree must speak for itself. But there is nothing whatever to prevent evidence being taken by the Court in order that it may ascer-taine what is the subject upon which the decree operates. And indeed this is done every day in cases where the judgment debtor calls upon the Court to put him into possession of the property which has been decreed to him, and the Court sends down an officer to locality for the purpose of giving him formal possession. That officer, by the aid of the best evidence which he can discover on the ground, ascertains the land which is the subject of the decree in order that he may give over possession of it according to the terms of the decree. " Similarly in Matiurrahman Khan Vs. Sonulal (7) it was observed by Fazalali J. , as he then was that: - "the executing Court has no right to go behind the decree or in any way to add to or amend the terms thereof. It has to execute the decree as it stands and any amendment thereof can be made only by the Court which passed the decree. It is however 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 permanent description of the property and abide by it". In this case the property described in the decree was five annas mukarrari share bearing touzi No. 4548 and separate account No. 60. At the time of execution it was found by the decree holder that the judgement debtor had no such property in separate account No. 60 but that the property was situated in separate account No. 8 8. The executing court held an enquiry and came to the conclusion that the property in dispute was in fact situated in separate account No. 88. It was in these circumstances that the above observations were made.

In Devankrishan Kartha Vs. Kochumohamed Pariathu (8), the facts were that: - "the decree holder discovered when he applied for 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. In appeal the District Court found that the court below had exceeded in jurisdiction in launching into an elaborate enquiry as to identity of the property and therefore dismissed the application of the decree holder". and it was held that: - "when the question is as to what is included in a decree in execution the executing court has gone 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 executing court did the right thing in taking evidence and going in to 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". The case of Matiurrahman Khan Vs. Sonulal (7), was relied upon in this case.

I am in respectful agreement with the view taken in these cases and I am of opinion that the learned District Judge was in error in holding that the decree was inexecut-able and that he could not hold an enquiry to ascertain the subject matter of the decree.

Apart from it, it is not open to the judgment debtor at this stage of the matter to say that the property described in Schedule 'e' is not identifiable. He having contested the suit for the properties mentioned in the schedule 'e' and having putforth the claims for reimbursement of money spent for their improvement cannot be permitted to say that the property is not identifiable.

(3.)THIS appeal is therefore allowed. The order of the learned District Judge is set aside and the case is sent back to the executing court for taking proceedings for the delivery of possession of the house and the plots of land according to law in the light of the observations made above. The appellant will get costs of this appeal from the respondent. .