Amendment sought was not going to change identity of schedule property.

1. The civil revision petition has been filed against the order of the Executing Court, viz, the Principal District Munsif Court, Tirunelveli, dismissing the application of the revision petitioner in E.A. No. 349 of 1996 in E.P. No. 254 of 1994 in O.S. No. 1263 of 1981 on his file for amendment of the description of the property to be proceeded against in execution of the decree in the suit.

2. Notice of motion was ordered in the Civil revision petition on 12. 1998. Though the respondents were served, they have not chosen to appear through counsel and contest the case. Mr.V. Raghavachari was appointed as amicus curiae to assist the court in the matter. The learned counsel also appeared and rendered valuable assistance by citing several authorities in support and against.

3. The revision petitioner filed suit O.S. No. 1263 of 1981 before the principal District Munsif Court, Tirunelveli, for recovery of Rs. 1939. 84 with 6% interest as arrears of lease amount due to it from the respondents. The suit was decreed for Rs. 3719.82 with interest on 27. 1982. The revision petitioner filed E.P. No. 254 of 1994. The Executing Court on 23. 1996 ordered attachment of the property at Door No. 12, Mutharamman Koil Street. The bailiff however returned the attachment stating that there was no such person in Door No. 12, Muthuramman Koil Street, Palayamkottai. Thereafter, E.A. No. 349 of 1996 came to be filed in the E.P. for amendment of the suit schedule as far as the street name was concerned. The lower court by order dated 110. 1997 dismissed the application accepting the case of the respondents that the very property was changed by reason of the amendment order. Aggrieved, the present revision has been filed.

4. It is contended by Mr.P. Srinivas, learned counsel for the revision petitioner that by amending the description there is no change of the property and in fact, the respondents had not taken any serious objections with regard to the description of the property in the execution petition till the property was attached on 23. 1996. The lower court erred in holding that the entire cause of action would change by reason of the amendment of the mere description of the property. The character of the execution petition for attachment and sale of the property did not change by reason of the amendment sought for. The respondents had suffered a decree and were liable to pay the amount and the revision petitioner was entitled to recover the same by bringing the property of the respondents to sale and the revision petitioner was entitled to have amendment.

5. Mr.V. Raghavachari, learned counsel acting as amicus curiae, has already stated that there were conflicting views in this regard and the amendment application had been filed more than 12 years after the decree and was clearly barred by limitation.

6. This is not a case where any property is sought to be recovered. The revision petitioner had obtained a decree for money and in execution of the decree, the property belonging to the respondents was sought to be brought to sale. There is really no change of cause of action. There is no decree for any property. The property belonging to the respondents is sought to be proceeded against for realising the decree amount. The street name had been wrongly given and it does not lie in the respondents to say that the street name cannot be changed, particularly, when if the street name is changed, the description would tally with the property belonging to the respondents.

7. In Sri Raja D.K. Venkata Lingama Nayanim etc., AIR 1967 Mad. 216 it was held by a Bench of this Court that,

“a decree holder cannot be allowed to amend a previous execution petition by including fresh properties more than twelve years after the date of the decree and the court has no discretion in the matter.”

This is not a case where the decree holder seeks amendment by including fresh properties. What it seeks is only an amendment of the description by changin