A successful plaintiff should not be deprived of the fruits of the decree due to defects in the property description.

JUDGMENT

(Prayer: Civil Miscellaneous Second Appeal filed under Order XLIII Rule 1 read with Section 100 C.P.C, against the judgment and decree passed in C.M.A.No.7 of 2017 on 18.03.2020 by the learned II Additional Judge, City Civil Court, Chennai confirming the fair and final order passed in E.A.No.4219 of 2016 in E.P.No.3695 of 2013 in O.S.No.5967 of 1985 on the file of the IX Assistant Judge, City Civil Court, Chennai dated 10.11.2016.)

1.The Judgment Debtor is the appellant herein.

2. The brief facts leading to filing of the above C.M.S.A are as under:-

(a) The respondent/plaintiff filed a suit in O.S.No.5967 of 1985 before the City Civil Court, Chennai for the Specific Performance of the suit sale agreement in respect of 1/5th share of the property at No.19, Sivaraman Street, Triplicane, Chennai. 600-005.

(b) Aggrieved against the said judgment and decree, the defendant has preferred appeal in A.S.No.925 of 1993 before the High Court and the same has been dismissed on 03.04.2012.

(c) The decree-holder filed E.P.No.3695 of 2013 and the same was allowed by the trial Court on 18.11.2014 and was directed to produce the draft sale deed .Against the said order, it appears that the judgment debtor filed E.A.No.323 of 2015 to review the said order. The review application as against the Executive proceedings order was also dismissed by the E.P court on 20.08.2015. Thereafter, draft sale deed was produced by the plaintiff decree-holder.

 (d) The plaintiff decree holder/respondent gave 4 boundaries in the schedule which was not clearly spelt out in the plaint schedule and hence he has filed the present application for rejection of the draft sale deed in E.A.No.4219 of 2016 to record objection and the same was dismissed on 10.11.2016.

(e) Aggrieved against the said order, the judgment debtor filed C.M.A.No.7 of 2017 before the learned II Additional City Civil Court, Chennai and by an order dated 18.03.2020 the same was dismissed and hence this C.M.S.A.

3. The learned counsel for the appellant/judgment debtor could contend that the issue raised goes to the root of the matter and further submitted that it is not mis-description but a non-description of the schedule of the property and drew my attention to schedule of the property in the plaint, decree and in Execution Proceedings.

4. The learned counsel for the respondent/ decree-holder could contend that as per the law laid down by the Hon''ble Supreme Court in S heodhyan Singh And Others vs Musammat Santchara Kuer reported in A IR 1963 SC 1879 it is only a mis description and the same need not be does not effect the decree and also relied upon 2022 (5) CTC 942 [Sarath Kakumanu Vs.Veerappan Arunachalam and 2.Priya Asokan]

"17. When the Suit as to immovable property has been decreed and the property is not definitely identified, the defect in the Court record caused by overlooking of provisions contained in Order 7, Rule 3 and Order 20, Rule 3 of the C.P.C is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resor can be had to Section 152 or Section 47 of the C.P.C depending on the facts and circumstances of each case which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 of the C.P.C by the Court which passed the decree by supplying the omission. Alternatively, the exact description of Decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47, C.P.C. A decree of a Competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 o