DAVE, J. - (1.) THIS is an appeal by the judgment-debtor against the order of the District Judge, Jodhpur, dated the 4th of October, 1951.
(2.) THE respondent decree-holder Mst. Billam Kunwar obtained against the judgment-debtor appellant a preliminary decree on the 13th November, 1949, and the final decree on the 13th March, 1950, for sale of the mortgaged property. THE decree-holder then presented an application for execution of the decree". THE sale proclamation was first made on 25th November, 1950. THE property was auctioned for several days in the month of January, 1951 but the sale could not be finalised. It was again put to auction on the 10th, 11th and 12th March, 1951. On the 13th March, 1951, the judgment-debtor presented an application to the effect that the property which was mentioned in the sale proclamation was different from the one stated in the mortgage-deed, that instead of selling the property as described in the mortgage-deed the Amin of the court was, at the instance of the decree-holder, selling away another house of a totally different description which was in the possession of the judgment-debtor and, therefore, he should be directed not to sell that house. THE executing court made an enquiry into this application. THE decree-holder admitted in that court that the boundaries of the house as mentioned in the sale-proclamation, the decree, the plaint, and the patta, were not correct, that the original mistake started from the patta and it crept into the mortgage-deed, the plaint and the decree, that the mortgage-deed contains description of the inside of the house, that the mortgage in fact related to the very house which was in the possession of the judgment-debtor and which was being auctioned, and since the judgment-debtor was only delaying the execution of the decree on the ground of a technical mistake, he should not be permitted to do so. After hearing the arguments of both the parties, the District Judge allowed the decree-holder to prove what property was actually mortgaged. The appellant's learned advocate contends that the executing court could only execute the decree as it stood and that it had committed an error in allowing the decree-holder to lead parole evidence about the mortgaged property. It was argued that the court had no jurisdiction to go behind the decree and change the boundaries of the mortgaged property mentioned in the mortgage-deed and the patta. The respondent's learned advocate on the other hand argued that the decree-holder did not mean to substitute another property for the one which was mortgaged with him, that it was only a matter of misdescription of the property, and that the lower court had ample powers to correct an error which was due to the mistake of both the parties. Learned advocates for both parties have led us into the description of the house as given in the patta, mortgage-deed, plaint, execution petition, sale proclamation of 25th November, 1950, the judgment-debtor's application, dated 13th March, 1951, and the decree-holder's application, dated 24th October, 1951, for permitting him to substitute the new boundaries as suggested therein. It appears that the boundaries on the western side as mentioned in the mortgage-deed do not agree with the boundaries mentioned in the patta, plaint, execution petition and sale proclamation. The boundaries on the east, north and south, mentioned in the patta, mortgage-deed, plaint, execution petition and sale-proclamation are the same, but it is admitted by the decree-holder that this description is wrong. He wants an auction of the property whose description he has given in his application dated 24th October, 1951. This description is entirely different on all the four sides. Under the circumstances, it cannot be said that there was only an accidental slip, omission or clerical error in the decree which is being executed. The point for determination in this case is whether a mistake about the description of the mortgaged property made by the parties in the mortgage-deed on which the suit is founded and which is repeated in the judgment or decree, can be rectified by the executing court in execution proceedings or in exercise of its powers under secs. 151 and 152 C. P. C. The respondent's learned advocate has cited a few cases to support his argument that the court can go into the said question and rectify the mistake. The earliest case to which he has referred is that of Bhugobat Singh vs. Ram Adhin Singh (1) ([1874] Sutherland's Weekly Reporter, Vol. XXII. p. 330. ). In that case it was held that a court executing a decree is competent to take evidence in order that it may ascertain what is the subject matter upon which the decree operates, and the judgment-creditor should not be referred for that purpose to a regular suit. It appears in that case all that was required to be ascertained upon evidence was "whether or not the property specified by the judgment-creditor in his petition was identical with the property which was the subject of the decree". There was no question of going behind the decree or the plaint. It may be further pointed out that in that case the learned Judges had themselves referred to an earlier case of the same Court without dissenting from the view taken therein. That case was Dwarkanath Haldhar vs. Kumola Kant Haldhar (2) ([1869] S. W. R. Vol. XII, p. 99 ). There the claim was founded on a mortgage of a palla and a decree was given for its possession. At the time of execution, the decree-holder wanted to lead evidence to the effect that the palla which was mortgaged with him and for which the decree was given was different from that mentioned in the mortgage-deed. It was held that in executing a decree for possession, all that a court has to do is to put the decree-holder in possession of that which is described in the decree; and if the description is so uncertain that it is impossible to ascertain what is decreed, execution cannot be given. Evidence cannot be taken in the execution department to ascertain what is decreed. Their lordships proceeded to explain their observations by citing an illustration which is rather interesting and would be helpful in understanding their meaning. Their lordships said, "if the Judge were to say, 'i award to the plaintiff a piece of land bounded on the west by the land of A. B. ', the execution department could not go into evidence to show that the Judge meant a piece of land bounded on the east by the land of A. B. ; or if the Judge should award to plaintiff 50 bighas of land abutting on the land of A. B. in a certain village, and it should be shown that A. B. had five different pieces of land in the same village, he could not go into evidence in the execution department for the purpose of ascertaining to which of the pieces of land of A. B. the decree referred". It would, thus, appear that the above case cited by the respondent's learned advocate is not helpful to him. The respondent's learned advocate has next referred to the cases of Gangaprasad vs. Subhagchand (3) (A. I. R. 1914 Oudh, 980.) and Gulam Nabi vs. F. W. Needham (4) (A. I. R. 1925 Cal. 1243. ). In the former case it was held that where a decree describes the mortgaged property in more ways than one and one description applies to one set of existing facts and another to set of existing facts, the duty of the court executing the decree is to ascertain by a reference to the record or other evidence to which property the decree was intended to apply. In the latter case it was held that when the question arises as to what is included in a decree, the executing court has got to go into the question as to what was decreed. It may be pointed out that both these cases do not help the respondent because the decree in the present case is in conformity with the judgment. There is no difference between the description of the property which was given in the plaint and that for which the decree was given. What the respondent really wants is amendment of description in the mortgage-deed itself and the above cases do not go to the extent of laying down that the executing court can go even beyond the mortgage-deed. Another case referred by him is Matur Rahmankhan vs. Sonulal (1) (A. I. R. 1938patna, 195. ). In that case it was held that an 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 paramount description of the property and abide by it. In that case the property which was the subject of the mortgage was described in the mortgage-bound as well as in the decree as a five annas mukarrari share bearing touzi No. 4548 and separate account No. 60. At the time of execution it was discovered that separate account No. was 88 and not 60. It was, however, clear from the decree as well as the mortgage bond on which the decree was based that the mortgaged property was a five annas share in mukarrari interest belonging to the mortgagor situated within the milkiat of Akhauri Premnarain and others. No. 60 did not relate to his mukarrari interest nor to any interest within the milkiat of Prem Narain. It was in these circumstances that their lordships had remarked that the executing court was entitled to look at the paramount description of the property and abide by it. In the present case neither the decree nor the mortgage-deed nor the patta contains any such paramount description. On the other hand the recital about the inner premises like ora, sal, kitchen, staircase, bathroom, chowk, barsali, latrine etc. is of such a common nature that these can be found in several houses and, therefore, it cannot come within the purview of paramount description. On the other hand the contention of the appellant's learned advocate finds support in the view taken in the cases referred below. In Shujaat Mand Khan vs. Govind Behari (2) (A. I. R. 1934 All. 100.) it was held by a Division Bench of the Allahabad High Court that an amendment allowing a correct description of the property which completely alters the plaint and the decree and also the deed on which the plaint is based, cannot be said to be correction of a clerical mistake in the judgment and cannot be allowed under sec. 152. This view was followed by a Division Bench of the Madras High Court in the case of T. M. Ramakrishnan vs. G. Radhakrishnan (3) (A. I. R. 1948 Mad. 13. ). It was observed by Gentle C. J. , with whom Happell J. agreed that sec. 152 is for the purpose of correcting errors directly involved in the proceedings themselves and not for correcting errors which are anterior to the proceedings particularly in documents upon which suits are brought. I am unable to see that property, wrongly described in a deed, can be included in any of the mistakes which the section allows to be corrected. It is not a clerical or an arithmetical error, and I cannot see that it is an accidental slip or omission". Then adverting to sec. 151 C. P. C. it was observed that "sec. 151 does not confer any jurisdiction upon the court. It is merely declaratory that nothing shall limit or otherwise affect the court's inherent power. If there was inherent power in the court to make an order for rectification of a document upon a requisition, it seems to me, that there would be no need for sec. 31, Specific Relief Act. That section gives a remedy by which a document, by reason of fraud or mutual mistake, can be corrected. Again, in Golstaun vs. Pramathanath Ray (1) (I. L. R. 57 Cal. 154.) it was observed by Sir George Rankin C. J. at page 159 that: "if the relief can be properly obtained in a separate suit, it does not appear that there is any justification for invoking sec. 151 at all. " His lordship proceeded to add "a remedy is provided for rectification; that is the remedy given by sec. 31, Specific Relief Act. That being so, it seems to me that nothing in sec. 151 can avail the assignee-decree-holder to obtain correction of the mortgage-deed which his assignor got executed and upon which he instituted the mortgage-suit and a final decree was passed. "
(3.) THE same view was taken in the case of Bala Debi vs. Bon Behari Roy (2) (A. I. R. 1952 Cal. 86) and both the cases cited above were relied upon. Sec. 31 of the Specific Relief Act lays down that: "when through fraud or a mutual mistake of the parties, an instrument does not truly express, their intention either party, or his representative in interest may institute a suit to have the instrument rectified ; and if the court finds it clearly proved that there has been fraud or mistake in framing the instrument and ascertain the real intention of the parties in executing the same, the court may in its discretion rectify the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value. " It is clear from the wordings of this section that in the case of a mutual mistake of the parties such as the one alleged to have been committed in the mortgage-deed by the respondent in the present case, the specific remedy provided above is by way of suit and not by way of an application in execution proceedings or an application under sec. 151 or sec. 152 C. P. C. The order of the District Judge, Jodhpur permitting the decree-holder to lead parole evidence about the property is, therefore, incorrect and cannot be upheld. The appeal is allowed and the said order is set aside with costs. .;