R.B.Mehrotra - (1.) RESPONDENTS no 3 to 5 got a decree of possession of the property in dispute with costs. This decree was dated 7-11-1981. The decree-holder respondents moved an execution application before the executing court. In the execution application the prayer for possession was not clear and the cost was deposited by the judgment debtors. Consequent thereto, vide an order, dated 14-4-1987, the executing court passed an order saying "the prayer of possession is not clear, Rejected."
(2.) ON 17-4-1987, the execution court passed another order saying "the application is allowed. The amount to the extent of cost can be withdrawn by the decree-holder which has been mentioned in the execution application consigned to the record room, The warrant of attachment is withdrawn." On 22-4-1987, the decree-holder moved another application 19-C for execution of possession but got it dismissed as not pressed. On 24-4-1987 the decree-holder moved another application saying that the record of the execution case may not be consigned to record room. The said application was allowed and it was directed that the record of the execution case may not be consigned to record room. Subsequent thereto, the decree holder moved an amendment application in the main execution application on 27-4-1987/14-5-1987. In the said amendment application, the decree holder stated that by some typing error, the prayer in the execution application became ambiguous, therefore the decree holder should be permitted to amend his execution application in the manner described in the application which was as under :- "Before the words 'costs of the suit' figure '1' should be allowed to be added and after the words 'belongings of judgment debtor; the word 'and' 'should be allowed to be added and before the words 'possession of house,' figure '2' should be allowed to be added." The executing court, vide its order, dated 14-4-1987, rejected the respondents amendment application taking the view that it would have changed the nature of the execution application and relied upon a decision of the Calcutta High Court in the case of Smt. Sabitri Bala Mallick v. Alak Ranjan Paul, AIR 1980 Cal. 249, wherein it has been held that after process for execution is issued, order 21 rule 17 cannot be invoked for amendment of the execution application and powers under sections 151 and 153 can also not be invoked for amending the execution application since it changes the nature of the execution application. Aggrieved by the aforesaid order, the decree holder filed a revision before the court of the District Judge. The 1st Addl. District Judge, Shahjahanpur vide his order, dated 9-2-1987 allowed the revision taking a view that the proposed amendment did not change the nature of the execution application and it was only correcting the clerical error as the word 'and' and figures '1' and '2' were left out to be mentioned in the execution application.
(3.) AGGRIEVED by the aforesaid order passed by the revisional court, the petitioner judgment-debtor has filed the present writ petition under Article 226 of the Constitution of India. I have heard Sri M. A. Qadeer and Sri Ranjeet Saxena on behalf of the petitioner and the respondents respectively. Sri M A. Qadeer has contended that the revision as such was not maintainable as the order passed by the executing court was not a case decided and secondly, a valuable right has accrued in favour of the judgment-debtor and the decree-holders are not entitled to get the relief of possession by means of amending the execution application. Sri Qadeer has also relied upon the Calcutta High Court decision which was relied upon by the trial court.;