Suit filed by the respondent for declaration of his title to the portion shown as I.J.K.L.M.N.O.P. in the plan annexed to the, plaint and for recovery of possession of that portion from the revision petitioner was decreed. When the respondent filed a petition for execution of that decree it was resisted by the revision petitioner. It is stated that when the respondent filed an application for appointment of an advocate commissioner for delivery of the property in terms of the decree, the revision petitioner opposed the said petition and so the said petition was dismissed.

Thereafter, revision petitioner filed a petition seeking appointment of a commissioner to note the physical features and to identify the property and the portion shown as I.J.K.L.M.N.O.P, in the plaint plan and to note other physical features, which was dismissed by the order under revision.

2. The contention of the learned counsel for the revision petitioner is that since the portion allegedly encroached by the revision petitioner cannot be ascertained from the plaint plan for want of measurements, and since the respondent, under the guise of executing the decree, is trying to demolish the property belonging to revision petitioner, the Court below ought to have appointed a commissioner and erred in observing that the provisions of Order 26 CPC do not apply to execution proceedings.

3. There is no representation on behalf of the respondent, though the matter is posted for hearing on number of occasions.

4. Since it is well known that executing Court can look into the plaint for understanding the decree, I have requested the learned counsel for the revision petitioner to produce a certified copy of the plaint. The learned counsel produced a certified copy of the plaint. The averments in the plaint show that the portion shown as A.B.C.D. and E.F.G.H. in the plan attached thereto belongs to the plaintiff and that the portion shown as B.E.G.D. in that plan belongs to defendant. The case of the respondent (plaintiff) is that the revision petitioner (defendant) who has property in between his two plots had, while constructing his house encroached into the sites belonging to him, which are shown as A.B.C.D and E.F.G.H. Unfortunately, the plaint plan does not contain measurements of the sites belonging to the parties, but the area of the portions marked as I.J.K.L. and M.N.O.P. therein is shown as 5 sq. yards each with rough measurements. It is difficult to identify those particular portions, because, distances from the eastern and western boundary of the plots belonging to the plaintiff, to locate them, are not mentioned in the plaint plan.

5. The Court below was in error in dismissing the petition on the assumption that the provisions of Order 26 do not apply to proceedings in execution, because Order 26 Rule 18-A, dearly lays down that the provisions of that order also apply to proceedings in execution of a decree or order.

6. Here I feel it appropriate to refer to the observations of the Apex Court in Prathibha Singh v. Shanti Devi Prasad1 in para 17 of its Judgment reading

".....After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact-description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission....”

In this case, since the dispute is with regard to the actual area encroached by the defendant, it would be