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In the High Court of Judicature at Hyderabad
A.V. SESHA SAI, J.
Gurram Anantha Reddy –Appellant
Versus
Katla Sayanna – Respondent
Civil Revision Petition Nos. 2982 of 2014 & Civil Revision Petition (SR) No. 23826 of 2014
Decided on : 30-03-2015
Civil Procedure Code, 1908 – Section 115 – Revision – Suit for specific performance of agreement of sale – Decree of Court – Commissioner was appointed and the same is the subject matter of challenge in C.R.P –Held, suit itself was keenly fought out by the petitioner. The mailer was carried through three courts when the execution is taken, technical pleas are raised as if the court is precluded from taking note of the actual state of affairs and conveying the property with a proper sale deed describing the actual boundaries. It is not as if there was any dispute as to the properly in regard to which specific performance was sought. It was not in dispute that the properly covered by Ext.P2 and that sold as per Ext. D2 was one and the same. That there was a mistake in the boundary description in Ext.P2 is also clear from the observations of the judgment in the suit. The plaintiff is entitled, in a suit for specific performance, to have the property agreed to be said to him conveyed with a proper, correct and effective deed of sale. When there is no dispute regarding the identity of the properly, there is no reason why the actual boundaries of the properly, as understood by all the parties, should not be incorporated in the sale deed to avoid any possible confusion in future. It is not as if by doing so the court is traversing beyond the decree or causing any prejudice to any of the parties or conveying property not agreed to be conveyed. In a case of this nature the court is bound to carry out and implement its decree in accordance with its tenor, which in turn would imply that the property should be correctly described with the proper boundaries facts and circumstances of the cases and the principles and parameters laid down in the above referred judgments drive this Court towards an irresistible conclusion that the petitioner herein has totally failed in making out a case, warranting any interference or indulgence of this Court under Section 115 of the Code of Civil Procedure. The contentions sought to be pressed into service by the learned counsel for the petitioner are liable to be rejected as being devoid of any merit. The fact remains that the decree holder is seeking specific performance of contract in respect of the property within the boundaries as mentioned in the suit agreement of sale and decree only and in the name of mis-description of one of the survey numbers, the legitimate right of the decree holder cannot be permitted to be frustrated Civil Revision Petitions shall stand closed.
1. The issue in the present revisions is a typical example for the famous saying “vows or difficulties of an Indian Decree holder start from the date of decree”. Since these two revisions arise out of same execution proceedings and are inter-related, this Court deems it apt and appropriate to dispose of these two cases by way of this common order.
2. The judgment debtor in E.P.No.2 of 2011 in O.S.No.15 of 2008 is the petitioner in these revisions. C.R.P.No.2982 of 2014 is filed against the order, dated 13-08-2014 and C.R.P. (SR).No.23826 of 2014 is filed against the order, dated 31-10-2013.
3. Heard Sri C. Ramesh Sagar, learned counsel for the petitioner and Sri G. Rama Krishna, learned counsel for the respondent and perused the material available before this Court.
4. The respondent herein instituted O.S.No.15 of 2008, on the file of the Court of the District Judge, Karimnagar against the petitioner herein for specific performance of agreement of sale, dated 05-03-2007 in respect of the lands, admeasuring Ac.2-16 gts., in Sy.No.115/A and Ac.4-00 gts., in Sy.No.161/B of Bhoopalapatnam village, Choppadandi Revenue Mandal, Karimnagar District. The learned Judge decreed the said suit on 31-03-2010. Thereafter, the decree holder filed E.P.No.2 of 2011 for enforcement of the decree on 09-11-2010. A.S.No.2 of 2011 filed by the defendants/ petitioners herein against the decree in O.S.No.15 of 2008 before this Court was dismissed on 15-04-2013. The decree holder/respondent herein filed E.A.No.62 of 2013 under Order 26 Rule 9 of the Code of Civil Procedure for appointment of an Advocate Commissioner to identify the land under E.P. with survey numbers and village map in consonance with the boundary map of E.P. Schedule with the assistance of Mandal Surveyor of Choppadandi Tahsildar Office. By way of an order, dated 31-12-2013 Commissioner was appointed and the same is the subject matter of challenge in C.R.P.(SR) No.23826 of 2014. The Commissioner so appointed filed a report on 10-06-2014 and by way of an order, dated 13-08-2014 the learned Prl. District Judge accepted the said report and the said order is under challenge in C.R.P.No.2982 of 2014.
5. The contentions and submissions of the learned counsel for the petitioner are:
1. Orders under challenge in these revisions are erroneous, contrary to law and are opposed to the provisions of Order 26 Rule 9 of the Code of Civil Procedure.
2. The Executing Court has no power to appoint an Advocate Commissioner under Order 26 Rule 9 of the Code of Civil Procedure in execution proceedings and as such, the orders, appointing Advocate Commissioner are totally without jurisdiction.
3. The Executing Court grossly erred in appointing the Advocate Commissioner for localizing the property for the purpose of execution and the E.P. Court cannot travel beyond the scope of decree and the same is impermissible.
4. Property which is neither covered by the agreement nor the plaint schedule property nor the decree cannot be delivered to the decree holder by appointing Advocate Commissioner.
5. The decree holder ought to have got amended the plaint schedule and the decree before initiating the Executing Proceedings.
6. The Court below virtually permitted the decree holder to adduce evidence afresh, which is impermissible.
In support of this submissions and contentions, learned counsel heavily placed reliance on the following judgments:
i. 2007 (2) ALT 636 (Vadlamani Suryanarayana - Murthy v. Saripalli Balakameswari and others)
ii. AIR 1963 SC 1124 (Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and others)
iii. AIR 1953 Madras 717 (P. Moosa Kutty v. Unknown)
6. Submissions/contentions of the learned counsel for the respondent are:
1. Orders passed by the Court below are in accordance with law and there is no illegality nor any material infirmity nor irregularity in the impugned orders, as such the present revisions are not maintainable and the petitioner is not entitled for any indulge
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