- (1.) THE Judgment of the Court was as follows : The judgment debtors have assailed the Order No.61 dated June 18, 2012 passed by Civil Judge (Junior Division) 1st Court, Arambagh in Title Execution Case No. 4 of 2005 allowing an application under Order 6 Rule 17 of the Code of Civil Procedure by permitting the decree holder to amend the schedule of the plaint.
(2.) THE point agitated by the judgment debtors/petitioners in this revisional application relates to the pure question of law and as such there is no necessity of recording the facts in ex tenso. However, the brief facts are narrated below which are more or less admitted. The predecessor-in-interest of the decree holders/opposite parties filed Title Suit No. 111 of 1998 in the Court of Civil Judge (Junior Division) 1st Court, Arambagh praying for a decree for eviction against the judgment debtors/petitioners in respect of the property, more particularly, described in Schedule 'Ka-1 to the plaint. The judgment debtors/petitioners contested the said suit but there is no whisper in the written statement filed by them relating to the ambiguity and/or misdescription of the 'Ka-1' schedule property. The suit was decreed after contested hearing on September 24, 2004. The appeal filed against the said decree was also dismissed and subsequently, the High Court did not interfere with the decree at the stage of Order 41 Rule 11 of the Code of Civil Procedure. The decree was, thereafter, put into execution in the Court of the Civil Judge (Junior Division) 1st Court, Arambagh which was registered as Title Execution Case No. 4 of 2005. The Executing Court issued the writ of possession and the bailiff was directed to deliver the possession to the decree holders/opposite parties. The bailiff returned the writ of possession as he found that the properties sought to be delivered in execution of the decree does not tally with the suit property as described in the plaint. Before further step could be taken by the decree holders/opposite parties, an application under Section 47 of the Code is taken out by the judgment debtors/petitioners challenging the executability of the decree. However, the judgment debtors/opposite parties filed a fresh application under Section 151 of the Code for re-issuance of the writ of possession which was ultimately allowed on December 12, 2005. The said order was assailed in civil revision before this Court in CO. No. 1140 of 2006 which was eventually allowed on 12.8.2008, by setting aside the order, by which the writ of possession was reissued with the categorical observation that a suitable amendment is required to be made in respect of the schedule property in the plaint as well as the decree. The application for amendment is the outcome of such observation which has been allowed by the trial Court.
(3.) THE judgment debtors/petitioners are not assailing the order, by which, such amendment is allowed to be carried out in the plaint as well as the decree on merit, but is assailed on the pure question of law that after the dismissal of an appeal, the decree of the trial Court merged with the decree of the Appellate Court and, therefore, any amendment and/or correction sought to be made in the decree can only be done by an Appellate Court and not by an Executing Court being the Court of first instance.;