- (1.) THE civil revision petition has been filed against the order of the Executing Court, viz, the Principal District Munsif Court, Tirunelveli, dismissing the application of the revision petitioner in E.A. No. 349 of 1996 in E.P. No. 254 of 1994 in O.S. No. 1263 of 1981 on his file for amendment of the description of the property to be proceeded against in execution of the decree in the suit.
(2.) NOTICE of motion was ordered in the Civil revision petition on 17.2.1998. Though the respondents were served, they have not chosen to appear through counsel and contest the case. Mr.V. Raghavachari was appointed as amicus curiae to assist the court in the matter. The learned counsel also appeared and rendered valuable assistance by citing several authorities in support and against. The revision petitioner filed suit O.S. No. 1263 of 1981 before the principal District Munsif Court, Tirunelveli, for recovery of Rs. 1939. 84 with 6% interest as arrears of lease amount due to it from the respondents. The suit was decreed for Rs. 3719.82 with interest on 21.7.1982. The revision petitioner filed E.P. No. 254 of 1994. The Executing Court on 21.3.1996 ordered attachment of the property at Door No. 12, Mutharamman Koil Street. The bailiff however returned the attachment stating that there was no such person in Door No. 12, Muthuramman Koil Street, Palayamkottai. Thereafter, E.A. No. 349 of 1996 came to be filed in the E.P. for amendment of the suit schedule as far as the street name was concerned. The lower court by order dated 17.10.1997 dismissed the application accepting the case of the respondents that the very property was changed by reason of the amendment order. Aggrieved, the present revision has been filed. It is contended by Mr.P. Srinivas, learned counsel for the revision petitioner that by amending the description there is no change of the property and in fact, the respondents had not taken any serious objections with regard to the description of the property in the execution petition till the property was attached on 21.3.1996. The lower court erred in holding that the entire cause of action would change by reason of the amendment of the mere description of the property. The character of the execution petition for attachment and sale of the property did not change by reason of the amendment sought for. The respondents had suffered a decree and were liable to pay the amount and the revision petitioner was entitled to recover the same by bringing the property of the respondents to sale and the revision petitioner was entitled to have amendment. Mr.V. Raghavachari, learned counsel acting as amicus curiae, has already stated that there were conflicting views in this regard and the amendment application had been filed more than 12 years after the decree and was clearly barred by limitation. This is not a case where any property is sought to be recovered. The revision petitioner had obtained a decree for money and in execution of the decree, the property belonging to the respondents was sought to be brought to sale. There is really no change of cause of action. There is no decree for any property. The property belonging to the respondents is sought to be proceeded against for realising the decree amount. The street name had been wrongly given and it does not lie in the respondents to say that the street name cannot be changed, particularly, when if the street name is changed, the description would tally with the property belonging to the respondents.
(3.) IN Sri Raja D.K. Venkata Lingama Nayanim etc., AIR 1967 Mad. 216 it was held by a Bench of this Court that, "a decree holder cannot be allowed to amend a previous execution petition by including fresh properties more than twelve years after the date of the decree and the court has no discretion in the matter." This is not a case where the decree holder seeks amendment by including fresh properties. What it seeks is only an amendment of the description by changing the name of the street. In Manindra Nath Biswas v. Radhasyam Biswas , AIR 1953 Cal. 676 "a decree holder applied for execution of his decree by proceeding against his bills and security deposits standing to the credit of the judgment-debtor. The decree holder could realise only a part of the decretal amount and found that he would be able to realise only a moiety of the amount due from the properties attached and that too not in the near future. He therefore applied for amendment of his execution application by praying for sale of the immovable properties charged under the decree." It was held in that case by a Bench of the Calcutta High Court that, "in the circumstances the prayer for amendment should be allowed under inherent powers as it had not the effect of changing the original character of the execution application and as no question of limitation came in the way. Even if the prayer for amendment is treated as an independent execution the Court would be justified in the circumstances to allow simultaneous execution in the exercise of its discretion. A Court has inherent power to allow amendment of pending execution application in proper cases apart from the express provisions of Order 21, Rule 17. The matter is one of discretion of the executing Court and except where the law of limitation raises an insuperable bar or where the decree holder has been guilty of gross negligence and where no equitable consideration stands in the way, the power of amendment should be liberally exercised." In Dineshwar Prasad Singh and others v. Deoniti Prasad Singh and others , AIR 1959 Pat. 199 the execution petition was sought to be amended by addition of some more properties to the properties, which were sought to be proceeded against in the first instance. It was held by a Bench of the Patna High Court that, "the amendment which the decree- holders sought to make in the execution petition was not an amendment contemplated by Order 21, Rule 17 and that the application for amendment must be treated as a fresh application for execution and the decree was, therefore barred by limitation under section 48 of the Code of Civil Procedure." ;