Aziz Dar vs Anwar Dar

(1) This is an application under Sections 151/ 151 C.P.C. for rectification/clarification of the judgment and decree dated 1291976 passed in Civil

revision No. 39 of 1972 by the erstwhile Chief Justice Hon'ble Shri S. M. F. Ali.

(2) The petitioner filed a suit under section 9 of the Specific Relief Act for possession of the suit land described in the plaint with a further prayer

for mandatory injunction that the defendantrespondent be directed to remove the structure raised on the said land and hand ever the vacant

possession of the and land to the petitioner The suit was dismissed by the Munsiff Sumbal on 2941972. The plaintiff moved the High Court in

revision which was heard and decided on 1291973. The revision was allowed and the plaintiff's suit was decreed It is pertinent to reproduce the

operative portion of the judgment of this court :

For these reasons the application is allowed, the decree passed by the learned Munsiff is set aside and the plaintiffs suit for possession under

section 9 of the Specific Relief Act is decreed. There will be no order as to costs.

(3) In this application filed under Sections 151/152 C. P. C it is submitted that the High Court while setting aside the decree of the Munsiff and

while decreeing the suit of the plaintiff, intended to pass a decree as prayed for by the plaintiffs in the suit The court inadvertently omitted to

mention in the judgment the plaintiff's prayer for mandatory injunction. As the judgment omitted to mention this, the decree drawn up by the

Registry also omitted to mention this prayer of mandatory injunction. As a result of this omission the defendants respondent have taken objection

before the executing court that the decree is not executable as there is no direction for demolition of the structures unauthorisedly raised on the

disputed land. Consequently the executing court has not given effect to the decree for possession passed by the High Court and in this way the

decree has become infructuous. It is submitted that the court may in exercise of its inherent powers cure this defect by rectifying this mistake.

(4) The application is resisted by the other side. It is stated that as there is no direction in the decree for demolition of the structures raised on the

suit land, it would be deemed that the prayer of the plaintiff was not acceded to. At any rate, as this does not find place in the decree, therefore,

the court cannot add anything to the decree already passed in the case.

(5) It seems that this court while allowing the revision application decreed the plaintiff's suit instituted by him under section 9 of the Specific Relief

Act. The suit of the plaintiff did make a mention of the structures on the land and also a prayer for the mandatory injunction against the defendant

directing him to remove the structure. When we appreciate the position it seems that obviously the court intended to pass the decree as prayed for

by the plaintiff. But through oversight it omitted to make mention of the removal of the structure in the judgment and in the decree which was

otherwise necessary to make the decree effective for otherwise, the decree would not be an effective decree at all. It is further worthy of

consideration that when the High Court in revision set aside the judgment and decree of the trial court it meant to grant all the consequential prayers

in favour of the plaintiff necessary to meet his requirements. It would imply that the High Court allowed all the prayers which the trial court had

declined to grant in favour of the plaintiff under its decree.

(6) The moot question to be whether considered is as to the court has inherent power to rectify the decree in order to make it effective and

executable. It is not disputed that the court cannot allow a decree to be wrecked because of some mistake in it or in the judgment. Every attempt is

to be made to save the decree from becoming dead. It is with a view to meet this situation that the court has been armed with inherent powers

under section 151 C. P C. to pass such order as would promote the ends of justice or prevent the abuse of process of the court. The powers are

of the wide amplitude. The only bar is that no order inconsistent with the procedure provided can be passed. In the instant case if the mistake is not

rectified it would leave the plaintiff with no remedy and he would not be able to reap the fruits of the decree as the decree will run the peril of being

wrecked. When the court allowed the revision and decreed the plaintiff's suit it had in mind to allow all the prayers made by the plaintiff which were

consequential to the execution of the decree. Without ordering demolition of the structure the decree passed in favour of the plaintiff would be

ineffective and will become in executable. The court can, therefore, in exercise of its inherent powers under Section 151 read with Section 152

C.P.C. and the prayer of mandatory injunction in the decree which prayer was already claimed in the suit.

(7) The result is that the application is allowed, and the mistake is rectified. In amplification of the decree it is ordered that the plaintiff will be

further entitled to a decree for mandatory injunction directing the defendant to remove the structures from the suit land. This will be added in the

decree.

(8) I, however, make no order as to costs.