Execution of Decree--Identification of Property--When the suit has been decreed and the property is not definitely identified, the defect in the court record is capable of being cured.

Mrs. Daya Chaudhary, J.: - The petitioner is aggrieved by order dated 22.12.2016 (Annexure P-13) passed by learned Civil Judge (Junior Division), Karnal, whereby, the actual possession has not been delivered to the petitioner, who is a decree holder.

2. Learned counsel for the petitioner submits that the disputed property was originally owned by one Sushma Mehta. Respondent-Vinod Kumar purchased disputed property by virtue of sale deed dated 21.04.2004 and as such, has become owner of that property. Thereafter, he entered into an agreement to sell with the present petitioner/plaintiff. Respondentdefendant was not executing sale deed and as such, the suit for specific performance was filed, which was decreed on 12.03.2012. As per decree, the defendant was directed to execute the sale deed in favour of plaintiff within a period of two months. The petitioner-plaintiff filed execution petition, wherein, a local commissioner was appointed vide order dated 05.05.2016 to get the sale deed executed as per decree sheet. It was done in consonance with Order 21 Rule 34 CPC. Learned counsel also submits that the petitioner-plaintiff filed an application for issuance of warrants of possession of property and symbolic possession was ordered to be delivered to him. The possession was not delivered as per order dated 22.12.2016 only on the ground that no specific description of property was mentioned. Learned counsel also submits that the boundaries of property were specifically mentioned and map of the plot was also annexed along with details of the boundaries but still the impugned order has been passed.

3. Learned counsel for the petitioner submits that the controversy involved in the present case is squarely covered by decision of Hon’ble the Apex Court in cases Pratibha Singh & Anr. v. Shanti Devi Prasad & Anr. 2003(1) RCR (Civil) 316 and Satyawati v. Rajinder Singh & Anr. [2014(4) Law Herald (SC) 2974] : 2014(2) CivilLJ 638.

4. Learned counsel for the petitioner submits that the present petition may be disposed of in view of directions as mentioned in Pratibha Singh’s case (supra) and Satyawati’s case (supra).

5. Heard the arguments of learned counsel for the petitioner and have also perused the impugned order as well as other documents on the file.

6. Without issuing notice to the other party and by considering the submissions made by learned counsel for the petitioner and also the fact that the controversy in the present case is squarely covered by decision rendered in Pratibha Singh’s case (supra) and Satyawati’s case (supra), the present petition deserves to be allowed.

7. Hon’ble the Apex Court in Pratibha Singh’s case (supra) has clearly held that when the suit 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 Civil Procedure Code is capable of being cured. It has also been held that after all a successful plaintiff should not be deprived of the fruits of decree and resort can be had to Section 152 or Section 47 of the Civil Procedure Code. Hon’ble the Apex Court by issuing certain directions disposed of the appeals in terms of directions as mentioned in para No.19 of the said judgment.

8. Order 7 Rule 3 of the Civil Procedure Code requires where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the Court to draw a proper decree as required by Order 20 Rule 3 of the CPC. In case, such property can be identified by boundaries or numbers in a record for settlement of survey, the plaint shall specify such boundaries or numbers. In case, the plaintiffs have committed an error, the defendants should have objected immediately. The default or carelessness of the parties does not absolve the trial Court of its obligation while scrutinizing the plaint as pointed out the omission on the part