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2012 (2) OLR - 620
HIGH COURT OF ORISSA
V. GOPALA GOWDA, C.J. AND B.N. MAHAPATRA, J.
Sri Ghanashyam Pradhan and others - Appellants
Versus
Sri Ram Pratap Khenria - Respondent
W.A. No. 421 of 2011
Decided on : 10th April, 2012.
It is undisputed fact that the subject matter of challenge in the writ petition was rejection of the objection filed by the appellant-judgment-debtors under Section 47, CPC contending that the decree is drawn without mentioning the boundary of 'B' schedule property and such a decree is not enforceable and/or executable as it is a nullity in the eye of law. Further, it is also not in dispute that the boundary of 'B' schedule property is not mentioned in the decree. Apart from that the further contention' of the defendant-appellants is that the subject-matter of Plot no. 727/1656 in the 'B' schedule property is not the property of the plaintiff. The property under occupation/possession of the appellants, i.e. Plot No. 767/1652 does not belong to Mouza : Berna @ Govindprasad. This is not the property which is purchased by the plaintiff, sought to be modified. Objection statement filed under Section 47, CPC in respect of identity of the property, is under dispute. Learned Single Judge was required to examine the legality and validity of the orders of the Executing Court and the Revisional Court. Learned Single Judge, while examining the correctness of the order of the Revisional Court, undisputedly has given a direction to the Trial Court for mentioning the boundary, that is, at the instance of the Court. This is not permissible in the proceeding initiated by the writ petitioners, who are the judgment-debtors. The learned Single Judge has not dealt with as to whether such direction could have been issued suo motu without there being an application before the Trial Court and such application could have been filed after lapse of 12 years period of passing the decree by the Trial Court. Had such an order been passed adverse to the interest of appellants, then only they could have challenged the same either before the Revisional Court or in the writ proceedings as the case may be. Therefore, the learned Single Judge was not called upon to give such direction suo motu. The said direction is beyond the power of judicial review in the writ petition filed by the appellants. Exercising judicial review power, this Court is not empowered to give any direction to the Trial Court to amend the decree particularly, when no such prayer is made in the writ petition. The Trial Court is empowered on an application being filed by the plaintiff respondent for amendment of the decree within the period of limitation prescribed under Article 137 of the Limitation Act, since Section 152, CPC prescribes that at any time an application can be filed for correction of arithmetical error in the decree. Whether the limitation prescribed under Article 137 is applicable or not is a question required to be examined by the Trial Court. However, the period of limitation of 12 years under Article 136 of the Limitation Act for making application for execution of any decree (other than a decree granting mandatory injunction) or order of any civil suit is provided in case of enforceable decree. (Para - 19)
2. TRANSFER OF PROPERTY ACT, 1882 - Secs. 51 and 53 - When a party has acquired a substantial right under an erroneous decree, amendment of the said decree is not permissible. (Para - 5)
Judgment
B.N. MAHAPATRA, J.
In the present Writ Appeal, the appellants, who were defendants before the trial Court challenge the correctness of the order dated 21.07.2011 passed by the learned Single Judge of this Court in W.P.(C) No.21538 of 2010, wherein the learned Single Judge has directed the trial Court to incorporate the boundary of schedule ‘B’ property in the decree and further directed the Executing Court to execute the amended decree though such a prayer has not been made in the writ petition filed by the present appellants.
2. Case of the appellants in a nutshell is that respondent No.1 filed one declaratory suit bearing T.S. No.59/83 claiming right, title and interest over the disputed land and praying for recovery of possession of the same. In the said suit, judgment was passed by the Trial Court on 23.12.1998 decreeing the suit and the decree of the trial Court was drawn on 23.01.1999. The present appellants challenged the judgment of the trial Court in T.A. No.8/7 of 2002/99 before the learned District Judge which was dismissed vide judgment dated 17.07.2002. The defendants-appellants carried the matter to this Court in Second Appeal, which was registered as RSA No.118 of 2002. In RSA No.118 of 2002, there was serious contest between both parties and various interim applications including appointment of receiver with regard to suit property were filed and various interim orders were also passed by the Court from time to time. This Court vide order dated 24.11.2006 passed an order appointing receiver and directing identification of the case land. Direction was also given to the Tahasildar and the Executive Engineer (R & B), Bhubaneswar to identify the land on the strength of Sabik ROR and Sabik map, but not on any other document. Subsequently, the defendants-appellants upon legal advice withdrew RSA No.118 of 2002 with a bona fide impression that if an appropriate petition is filed before the Executing Court that would protect their interest and execution case would be dropped. But, the Executing Court did not consider the main point touching the identity of the land and rejected the legal submission of the appellants and proceeded further with the Execution Case vide order dated 13.04.2010. Being aggrieved by the order of the Executing Court dated 13.04.2010, CRP was preferred by the appellants before the learned District Judge, Khurda at Bhubaneswar and the learned District Judge also upheld the order of the learned Executing Court. Being aggrieved, the defendant-appellants filed a writ petition bearing W.P.(C) No.21538 of 2010 assailing the orders passed by the Executing Court and the Revisional Court. This Court vide judgment dated 21.07.2011 passed in W.P.(C) No.21538 of 2010 directed the trial Court, who passed the decree for correction of the decree by inserting the boundary and also directed the Executing Court to proceed with the Execution Case for delivery of possession of the Schedule ‘B’ property to the decree-holder by getting the same measured as per the boundary according to correction of the decree. Hence, the present appeal.
3. Mr. Mahitosh Sinha, learned counsel appearing on behalf of the appellants submitted that the impugned judgment of the learned Single Judge directing correction/amendment of the decree by incorporating the boundary of the suit plot in the decree after a lapse of more than 12 years is not sustainable in law. There was no motion at any point of time by the plaintiff to incorporate the boundary in the decree passed by the learned trial court even though series of litigations arising out of the self same suit are being fought by the parties. By virtue of the inherent powers, conferred u/s. 151, CPC, it cannot be deemed that a decree can be corrected after a lapse of more than 12 years when a substantial right has already accrued in favour of the judgment debtors. The main crux of the litigation hinges upon the identification of the suit land and the plaintiff by giving a wrong
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