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RAMAKRISHNAN, Advocate

1997 2 AllCJ 1493 ; 1995 Supp4 SCC 582 ; 1992 0 Supreme(SC) 724

SUPREME COURT OF INDIA

A.M.Ahmadi : M.M.Punchhi
Tiko
Versus
Lachman
Case No. : 4203 of 1992
Date of Decision : 10/12/92

Act Referred :
CIVIL PROCEDURE CODE : O.6 R.17, S.47

(1) SPECIAL leave granted.

(2) HEARD counsel on both sides. We find from the facts that a suit was filed for
redemption of mortgage. In the plaint the area of the mortgaged land was stated to
be 20 bighas 5 biswas, i.e. approximately 34 kanals. Since the land allotted after
consolidation proceedings was not correctly stated in the Jamabandi of 1965, the
area and description given therein also crept into the plaint. The suit was ultimately
decreed on 8/08/1985. The first appeal as well as the second appeal failed and the
appellants before us were put in possession of the land. It appears that thereafter
the respondent filed an application alleging that since the area of the land
mentioned in the decree was 11 kanals and 16 marlas, the warrant for possession
was wrongly issued for 34 kanals 14 marlas. Thereupon the appellants herein
moved an application for amendment of the plaint and the decree to correct the
area and description of the mortgaged land to that mentioned in the mortgage deed
itself. Unfortunately, this application was moved before the executing court which
dismissed it holding that it could (sic not) go beyond the decree. The High court
dismissed the revision petition carried against that order and hence this appeal by
special leave.

(3) TECHNICALLY speaking the executing court could not go beyond the decree and
hence the order passed by it is not assailable. But the executing court was also the
court which could have amended the plaint and the decree. Counsel for the
appellants states that although the decree was passed by Sub-Judge Class III,
Sonepat, the very same court later exercised powers as Sub-Judge Class I and was
executing the decree. It was, therefore, open to that court to treat the application as
an application made before the decretal court and proceed to dispose of the same in
accordance with law.

(4) IN the circumstances we direct that the application made by the appellants for
amendment of the plaint and consequential amendment of the decree may be
treated as an application made in the original suit proceedings and be disposed of in
accordance with law. The appeal will stand disposed of accordingly with no order as

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to costs.

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