An execution court can allow amendments to a schedule of property included in a decree without altering the decree itself, provided it involves adding existing structures.

JUDGMENT :

K. NATARAJAN, J.

1. This petition was filed by the petitioner/JDR for challenging the order passed by the Subordinate Judge, Kasaragod, in E.A. No.1/2025 in E.P. No.52 of 2024 in O.S. No.53 of 2020, and allowing the application filed by the decree holder under Order 6 Rule 17 C.P.C., to amend the schedule of the property in the execution case.

2. Heard the learned counsel for the petitioner and the counsel for the respondent. Learned counsel for the respondent objected to the petition and supported the order passed by the Execution Court.

3. The case of the petitioner is that the respondent obtained the decree of Rs.10,59,560/- and filed an Execution Petition E.P. No. 52 of 2024 in O.S.No.53 of 2020. As per the decree obtained by the respondent in Ext.P1, the D Schedule property mentions that the property under mortgage was 67 cents of land in R.S No.150/2A Pt situated at Kodlamogaru Village, Manjeshwar Taluk, Kasaragod District.

4. While filing the Execution Petition, the decree holder mentioned the schedule of the property. Subsequently, the decree holder filed the amendment application, wherein the building and machinery said to be in existence on the land should be included in the schedule of the property in the decree. The JDR filed a counter, and the impugned order was passed by the Court below on 11.06.2025, by allowing the application, permitting the respondent/decree holder to amend the schedule of the property in the execution petition, which is under challenge.

5. Learned counsel for the petitioner has contended that the court do not have the power to modify the decree but only to execute the decree, and no authority to change the schedule mentioned in the decree. There is no mention of building and machinery in the property mentioned under the decree. The execution court has no authority to change the same; therefore, the order is liable to be set aside.

6. Per contra, learned counsel for the respondent has supported the orders passed by the Execution Court and contended that there is no wrong in the amendment for mentioning the building and affixture in the schedule of the property, which cannot be said to be a new amendment brought in the decree, and it cannot also be called a change of the decree. In support of his case, he has relied upon Section 3 Sub Section 26 of the General Clauses Act 1897‚ contending that immovable property means it includes the building and attachments. As per Section 3 of the Transfer of Property Act , the immovable property, which also includes the land, is subject to attachment. Therefore, the question of stating dual ownership without the building and land cannot be acceptable in this case, and the petitioner himself filed a petition stating that he is the owner of the building and machinery even in the loan agreement, and the said property was given as security enables the building as well as the machinery and land has been mortgaged to the respondent at the time of getting the loan. Such being the case, even if the amendment is allowed there, it will not be a change in the decree or alter the decree of the court; therefore, to execute the decree of the land, which is valued by the Commissioner, will be beneficial to the JDR. Therefore, there is no wrong in the order passed by the Trial Court, and it cannot be said that the amendment was brought to record to alter the decree that is not correct; hence, the petitioner prayed to dismiss the petition.

7. The points that arise for consideration are:

(i) Whether the Execution Court committed error in allowing the amendment to the schedule, wh