( 1 ) LEARNED Advocates for the petitioners are present. None is present for the opposite party.

( 2 ) IT appears from the affidavit of service that notice was duly served upon the opposite party and he received the copy of the application by putting his signature in the A/d Card.

( 3 ) LET the affidavit of service be kept with the record.

( 4 ) IT further appears from the order dated 19. 2. 2004 that opportunity was given to the opposite party to file affidavit-in-opposition. But inspite of service of notice it appears from the office note that no such opposition has been filed.

( 5 ) UNDER such circumstances, the revisional application is taken up for hearing in absence of the opposite party and the submission of the learned Advocate for the petitioners is considered.

( 6 ) IT appears that the petitioners obtained a decree for eviction against the opposite party and the decree reveals that the direction was given for eviction of the opposite party from the suit premises as mentioned in the schedule Ka of the said decree. As the opposite party/defendant did not vacate the suit premises inspite of the said decree, so that petitioners put the decree into execution by filing a petition to that effect. But there was a mistake in describing the suit property in the execution petition, and as such, an amendment petition was filed before the learned Court below praying for necessary correction in respect of the schedule of the execution petition. But the learned Court below was pleased to reject such prayer on the ground that if such amendment was allowed then it would have changed the nature and character of the execution case altogether. As such, he was pleased to reject the said amendment prayer. Being aggrieved by and dissatisfied with the said order of the learned Court below, this revisional application has been preferred.

( 7 ) IT is the admitted position that the petitioners have obtained a decree for eviction against the defendant in respect of the suit property and in the decree it has been specifically mentioned that the suit property is situated in the second floor of the said premises. But in the execution petition inadvertently in the place of "second floor" it was mentioned as "third floor". By filing the amendment petition the petitioners wanted to amend the schedule of the execution petition which was disallowed on the ground that it will change the nature and character of the suit property altogether. But on perusal of the materials on record particularly the amendment petition and the decree as obtained by the petitioners, I am of opinion that the learned court below was not at all justified in rejecting the said amendment petition. Question of changing the entire suit property does not arise at all since the amendment has been prayed for only to describe the suit property correctly as mentioned in the decree itself. If the said amendment petition is not allowed, then the decree which has been obtained by the petitioners against the opposite party will be infractuous. Considering all these things, I am of opinion that the learned Court below was not at all justified in rejecting the prayer for amendment as made by the petitioners. There cannot be any doubt that the learned Court below failed to exercise the discretion properly as vested in him under the law and if the impugned order in question is allowed to stand, then it will certainly cause miscarriage of justice. Due to all these reasons, I am of opinion that the impugned order, as passed by the learned Court below should immediately be set aside and necessary direction should be given to the learned Court below for taking appropriate steps in accordance with law for execution of the decree.

( 8 ) IN the result, the revisional application is allowed.

( 9 ) THE Order No. 121 dated 21. 7. 2001 as passed by the learned civil Judge, Junior Division, Uluberia in Title Execution Case No. 5 of 1990 is set aside. The amendment petition, as filed by the petitio

Click Here to Read the rest of this document