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IN THE HIGH COURT OF JHARKHAND AT RANCHI
HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
Most. Dewanti Devi, d/o Bhola Ram – Appellant
Versus
Smt. Saroj Devi, w/o Surendra Sharma – Respondent
C.M.P. No. 968 of 2022
Decided on : 16-02-2024
[CIVIL PROCEDURE] - [Execution of Decree] - [Article 227, Section 47, Section 152 of CPC] - [The court discussed the limited jurisdiction under Article 227 of the Constitution of India, emphasizing that it can only intervene in cases of gross abuse of jurisdiction or unwarranted assumption of jurisdiction. The court reiterated that the executing court must execute the decree as per its terms without deviation. It highlighted that Section 152 of CPC is meant for clerical corrections and cannot be used for substantial amendments to a decree. The court's decision was influenced by the need to uphold the finality of the decree and prevent further delays in execution.]
Fact of the Case:
The case involves a civil misc. petition filed under Article 227 against an order related to the execution of a partition decree from 1994. The decree holder sought execution of a decree for 15.5 decimals of land, while the judgment debtor contested the execution based on various grounds, including the need for a fresh survey map.
Finding of the Court:
The court found that the executing court acted within its jurisdiction and correctly dismissed the judgment debtor's petitions under Section 47 of CPC. The court emphasized that the decree had attained finality and should be executed as per its terms without further delay.
Issues: The primary issues were whether the executing court had the authority to execute the decree as per its terms and whether the judgment debtor's repeated petitions constituted an abuse of process.
Ratio Decidendi: The court held that the executing court must execute the decree as it stands, without deviation, and that Section 152 of CPC cannot be used for substantial amendments. The court also reiterated the limited scope of intervention under Article 227, which is restricted to cases of gross abuse of jurisdiction.
Final Decision: The court dismissed the petition under Article 227, imposed a cost of Rs. 25,000 on the petitioner for abuse of process, and directed compliance with the execution of the decree.
JUDGMENT :
SUJIT NARAYAN PRASAD, J.
1. The instant civil misc. petition has been filed under Article 227 of the Constitution of India against the order dated 16.11.2022 passed in Misc. Civil Appeal No. 137 of 2022 corresponding to CNR No.JHCH02-0002422022 arising out of Execution Case No.01/2008 whereby and whereunder, the petition dated 10.06.2022 filed by the judgment debtors/petitioners to review/recall of the order dated 12.05.2022 passed in Execution Case No.01 of 2008.
2. The brief facts of the case as per the pleading made in the petition which requires to be enumerated, read as under:
A deed of partition was settled on 11.03.1970 with regard to the suit land.
The learned Executive Magistrate, in a proceeding initiated in a Case No.35 of 1985 under Section 145 of Cr.P.C. relating to the land in dispute declared the exclusive possession of the suit land by the judgment debtor and even the revision petition was dropped by the High Court as devoid of any merit on 12.05.1987. Thereafter, vide order dated 22.06.1987 passed in Cr. Rev. No.87 of 1987(R) by the High Court, liberty was given to the decree holder to ventilate the grievance before the civil court.
Title Suit No.3 of 1988 was filed by the plaintiff/decree holder/respondent nos.1 and 2 for declaration of 17.5 decimals of land out of 51 decimal of land of village-Pratappur, P.S. Pratappur, Dist. Hazaribagh in Khata No.34, Plot No.622 and 623. Thereafter, decree holder amended plaint in addition to the earlier plaint on 05.09.1988 for the same relief. The judgment debtor/petitioners have filed a written statement in Title Suit No.3 of 1988.
The learned court, vide judgment dated 22.09.1994 passed in Title Suit No.3 of 1988, decreed the suit in favour of the plaintiff/decree holder/respondent nos.1 and 2, the plaintiff/decree holder/respondent nos. 1 and 2 are entitled for declaration of their right and title over 15.5 decimals of land of Plot no.622 and 623 of Khata No.34.
Thereafter, judgment debtor filed a Title Appeal No.56 of 1994 against the judgment dated 22.09.1994 and decree dated 05.10.1994 passed in Title Suit No.3 of 1988, which was dismissed vide order dated 15.05.2004. Thereafter, second appeal being Second Appeal No.329 of 2004 was filed by the judgment debtor/petitioners before the High Court against the judgment dated 15.05.2004 and decree dated 31.05.2004, which was dismissed vide order dated 21.05.2009.
The decree holder filed a writ for carving out takhta in Title Suit No.3 of 1988. The decree holder again filed modified writ/amendment writ on 05.05.2007 and thereafter, Pleader Commissioner submitted a report along with sketch map on 19.06.2007. On 03.10.2007, the decree holder has filed a petition u/s 152 of C.P.C. for amendment of judgment/decree before the first appellate court in Title Appeal No.56 of 1994.
The learned court allowed the petition dated 03.10.2007 on 03.12.2007 without giving opportunity to the judgment debtor/petitioners to file objection and the first appellate court has amended the judgment dated 15.05.2004 and decree dated 31.05.2004 of area 17.5 acres of land.
The judgment debtor filed review petition under Section 151 of CPC against the order dated 13.12.2007 which was rejected by the first appellate court and vide order dated 14.03.2008, office was directed to take steps for preparation of final decree in terms of the procedure under the law. Thereafter, decree was prepared on 31.05.2004 and re-prepared as amended one on 13.12.2007.
On 23.07.2008, the decree holder filed an Execution Case No.1 of 2008. The judgment debtor filed a misc. case u/s 47 of CPC which was dismissed on 20.06.2009.
The judgment debtor filed SLP (C) No. 18989 of 2009 before the Hon'ble Apex Court against the order dated 21.05.2009 passed in Second Appeal No.329 of 2004 in which status quo was passed vide order dated 13.08.2009. The said Civil Appeal No.3266 of 2011 [arising out of SLP (c) No.18989 of 2009] was allowed and granted leave in favour of the judgment de
The executing court is bound to execute the decree as per its terms, and the jurisdiction under Article 227 is limited to correcting gross abuses of jurisdiction, not to re-evaluate findings of fact ....
The executing court is bound to execute a decree as it stands, and objections to its execution must be based on jurisdictional issues rather than claims of error in the decree's interpretation.
Clerical and arithmetical errors in judgments can be corrected under Section 152 of the CPC without altering substantive rights, and the High Court has the authority to intervene under Article 227 to....
The executing Court cannot go behind the decree and must execute it according to its tenor, and cannot entertain objections to the decree's correctness in law or on facts, unless it is a nullity or p....
Objection to execution of decree – Running a separate miscellaneous proceeding under Section 47 of CPC is a misuse of process of court.
The main legal point established in the judgment is that the court has the power to allow amendments to the plaint to prevent the inexecutability of a partition decree.
A decree for permanent prohibitory injunction is enforceable by assignees, is not subject to limitation, and the executing court has the authority to restore possession in cases of dispossession.
The executing court must determine questions arising between parties to the decree without modifying it, and procedural irregularities should not defeat substantive rights.
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