Suram Singh vs Lal Chand & Ors

Sindhu Sharma, J

This revision petition is directed against the order dated 26.04.2018 passed by the learned Munsiff, Kathua by dismissing the execution petition filed by the Decree Holder. Operative part of the order dated 26.04.2018 reads as under : -

'In view of the discussion made supra, and having regard to stand taken by judgment debtors, this execution petition is misconceived and is accordingly dismissed as without any merit and therefore the present petition is dismissed and same be consigned to records.'

The first question for consideration is whether the revision is maintainable in view of the provisions of Section 115(1) of the CPC constituted vide Act No.6/2009 dated 20.03.2009. Since the order impugned can only be sustained if it is illegal and perverse and the Court has jurisdiction under Section 104 of Constitution of Jammu & Kashmir to interfere in the interest of justice.

The Executing Court while dismissing the execution petition has virtually nullified the judgment declaring Decree Holder as owner in possession of the suit land in respect of which the Decree Holder had applied for execution. Assuming that the application is not strictly in accordance with the mandate of Order-21 Rule-32 of the CPC, the Court ought to have asked the Decree Holder to seek appropriate relief, even otherwise, the Court should not have dismissed the application without giving liberty to the Decree Holder to file fresh application for execution seeking appropriate relief.

It is a decree which lacks specification of land regarding which it has been passed.

Be that as it may, a decree cannot be held to be un-executable on that ground. The Hon'ble Supreme Court in Pratibha Singh & anr. vs Shanti Devi Prasad & anr., 'AIR 2003 SC 643' has held that the Executing Court can correct the decree under Section 152 C.P.C. so as to make the decree executable. Their lordships have further observed that a decree of competent Court should not, as far as practicable, be allowed to be defeated on accord of accidental slip or emotions. Since the decree became final because the Judgment Debtor did not challenge it, the Executing Court had a duty to correct the decree under Section 152 of CPC so that there is no dispute because Khasra No.109 according to the statement of the Patwari is 08 Kanals, out of which, the Decree Holder has purchased only 02 Kanals & 15 Marlas of land and the stand of the defendants in the Trial Court was, they purchased only 04 Kanals of land out of this Khasra number.

The Executing Court being a Trial Court is also directed to correct the decree before proceeding further, for this, Sale Deed registered in favour of the plaintiff/Decree Holder is the main evidence and for this, the Patwari can be summoned by the Court to demarcate the land of the Decree Holder. This will help in putting an end to avoidable litigation.

In view of the aforesaid, the petition is allowed to the extent mentioned above.

Record of the Trial Court be remitted back.