- (1.) D. K. Seth, J. Order dated 14-4-1981 passed by Munsif, Kashipur in Civil Execution Case No. 63 of 1966 affirmed by the order dated 31st October; 1981 passed by the Additional District Judge, 1st Court, Nainital, in Civil Revision No. 72 of 1981 are the subject-matter of challenge in the present writ petition. Mr. K. L. Grover, learned counsel for the petitioner while assailing the said order contents that by virtue of the application for amendment of the application for execution the respondent No. 3 had got the decree amended. According to him the execution court cannot go behind the decree. It has no power to amend the decree. According to him in the present case the amendment of this boundaries of the suit property of which delivery of possession was sought to be executed renders the suit property to be a different one from that for which decree was passed. According to him the decree having become inexecutable because of the reason of indentifiability of the suit property the execution must fail and the same cannot be revived, by means of amend ment for identifying the suit property in the application for execution without ob taining amendment of the decree by the court which had passed it. According to him the decree having been affirmed it is the High Court's decree which is executable. The decree could be corrected, therefore, only by the High Court and the executing court cannot do it. It has to execute the decree as it is. The change in the boundaries sought to be brought into being by means of amendment is unwarranted and beyond the competence of the executing court. For the purpose of delivery of possession Commissioner was appointed by the executing court. It appears from the report of the Commissioner that on the basis of the boundary given in the decree, the suit property is not identifiable and as such the decree is inexecutable. In such cir cumstances, therefore, the lacuna could not be filled up by way of amendment. Therefore, according to him the order dated 31-10-1981 passed by the learned Addi tional District Judge, Nainital, affirming the order dated 14-4-81 passed by the learned Munsif cannot be sustained and should be set aside.
(2.) IN support of his contention he has relied upon the decision in the case of Bhan Kumar Chand and another v. Mohan Lai and other reported in AIR 1948 PC 180. IN the said case the partition of a village was decreed. After more than half a century when the said partition was sought to be obtained in execution of the decree, it was found that the village was so inexplicably mixed up with other village that it was impossible to find out with reference to any contemporaneous record as to which land constituted the village in question and the decree holders were unable to identify the village. Therefore, the decree holder were not entitled to get inexecution proceeding an order for possession of the village. While dealing with the said case it was observed that the executing court had chalked out a means for identifying the same, though, the same has to be based on surmises. Their Lordship of the privy council had observed after working on the basis of the figures given that the appel lants were directed to get joint possession which they might get partitioned sub sequently. Therefore, such a proposition amounting to passing a fresh decree for joint possession which the executing court was not competent to pass. This decision to my mind, does not help to Mr. Gover, so far as the present case is concerned as would appear from the observations made hereinafter. Mr. Grover next relies on the decision in the case of Shujaatnand Khan and others v. Govind Behari and others AIR 1934 All 100. The said case deals with Section 152 of the Code of Civil Procedure. It was held that an amendment allowing correc tion of the description of the property which completely alters the plaint and the decree and also the deed on which the plaint is passed, cannot be said to be a correction of clerical mistake in the judgment and cannot be allowed under Section 152, of the Code of Civil Procedure. In my view this ratio also does not help Mr. Grover. Inasmuch as in the present case the application is not one under Section 152, C. P. C. for correction of the decree. Therefore, the ratio of the said case cannot be attracted. Mr. Grover then relied on the decision in the case of Kistur Mall and others v. Satar Mohammad and others, AIR 1958 Raj 276. In the said case there was a mutual mistake of parties which extended into the decree. There was no mistake on the part of the Judge. The rectification of such mistake could not be made in the execution proceedings. The remedy is by way of separate suit. The facts of the present case is distinguishable from the facts of the said case. The ratio decided cannot be attracted to the facts of the present case. It is not mutual mistake in the decree and it is not a case of correction of the decree on such ground. Therefore, the said case also does not help Mr. Grover. Relying on the decision in the case of Collector Customs, Calcutta v. East India Commercial Co. Ltd. , AIR 1963 SC 1124. Mr. Grover contends that since the decree was ultimately affirmed by the High Court, it is only the High Court which can modify the same. The decree of the lower appellate court having merged in that of the High Court, the executing court cannot correct the same. Relying on the said judgment Mr. Grover submits that the execut ing court has no jurisdiction to correct the application for execution which virtually amounts to correct the decree itself. In the facts and circumstances of the present case admittedly, the Commis sioner who was directed to deliver possession was unable to identify the property and had accordingly submitted a report. Thereupon, an application was made for amend ing the description of the boundary of the suit property. It is the case of the respon dent No. 3, that by means of such amendment in the description of the boundary the boundary is not being changed and the suit property is not being substituted or replaced neither any excess property is being sought to be executed. According to him the boundaries as were given in the description of the property was required to be re-defined. It is the same boundary which is being described differently because of the changes in the possession of the respective properties on the boundary of the suit property on account of subsequent creation of title and raising of construction. It has been alleged that the property belonging to one has been sold to the other and who has made construction. Therefore, the purpose of identifying the same property the description of the boundary is being amended by means of incorporating the name of the subsequent owner in the place and stead of that where the boundary was described.
(3.) ADMITTEDLY, executing court has jurisdiction to allow amendment of the ex ecution application, if occasion so, arises. It is for the executing court while allowing the amendment to find out that by means of such amendment it is not purporting to amend the decree and that it is not purporting to go behind the decree. The execut ing court cannot go behind the decree. While amending the description of the boundary it is for the executing court to find out as to whether by means of such amendment the description of the property is being changed or the property is being substituted. If without changing the suit property the same can be identified by means of re-defining the boundary such amendment can very well be allowed. It is for the judgment debtor to show that by reason of such amendment the property is being substituted, or that some other property is being sought to be taken possession of in execution of the decree. It is for him to show that it is not an amendment of the application in execution but is virtually an amendment of the decree itself. Now the orders impugned has recorded, there has been nothing shown by the judgment debt or that some other property is being included or that property in excess is being sought to be executed. If the area is not increased and the property could be iden tified otherwise; but only the boundaries are being re-defined properly, in that event amendment re-defining the boundaries can not be treated to be amendment of the decree or going behind the decree. Inasmuch as it would be the same property in respect whereof the decree has been passed is being sought to be taken possession of in execution of the said decree. It is for the trial Court to find out on the basis of the materials placed before it. If on the basis of the description given in the plaint and in the decree taking aid of the documents adduced in evidence on which the right is based and other descriptions available on record, if the property can be identified then the Court can undertake such exercise. Only the boundaries as described having undergone a change, though the property can be identifiable otherwise, does not render the decree inexecutable or the executing court incompetent. It is the duty of the executing court to execute the decree and to make all endeavour to identify the property on the basis of the materials on record. In allowing such amendment the executing court has to take care that it is not passing some other decree instead of the decree existing. It appears from the translation made at the bar that originally the northern boundary was described "in North-plaintiff's garden". The same is rederfined "garden of the plaintiff (decree holder) which has been sold to Sri Ramesh Chand and Sri Om Prakash on 31'st December 1971. " The eastern boundary was described originally as "in East-garden and shop of plaintiff and the same was sought to be redefined as "towards East-shop of plaintiff (decree holder) now in place of garden, there is house of Sri Ramesh Chand". The Western boundary was defined as "in West-garden of plaintiff1. The said description is being redefined as "in Western side, there is garden which has been sold to Sri Ramesh Chand and Sri Om Prakash by sale-deed dated 31st December 1971". The southern boundary was described as "shop of Umesh Kumar and finally in South Road of the Municipal Board". The same is redefined as "in Southroad of Municipal Board, Kashipur, Nainital and on some part shops of Umesh Kumar". Therefore, it is abtaundantly clear that it is a simple case of redefining the boundaries with the change or passage of time. Rule 35, Order XXI of the Code of Civil Procedure casts a duty upon the executing court to enforce the decree for delivery of immovable property. It also contempaltes removal on any person bound by the decree who refuses to vacate the property. A decree has to be executed. Simply by reason of changes in the descrip tion of the boundary without any change in the boundary itself, the decree cannot become inexecutable. Even if possession of the whole can not be delivered, even then a party possession can also be delivered. If third party interest is affected, his remedy is provided under Order XXI, Rule 99 or 100 of the Code of Civil Procedure. How ever, the judgment-debtor has no responsibility to defend third party interest. A judgment-debtor is bound by the decree. He may resist the decree by any means. All resistance may not be genuine. Therefore, it is for the executing court to find out the property. Since the rights have been decided, no further suit can be instituted. In the present case, the suit property is not being changed or substituted.;