2000 Supreme(MP) 1154

IN THE HIGH COURT OF MADHYA PRADESH
R.S. GARG, J.
Kamlesh Mudaliar - Appellant
V.
Shashi Prabha Birthare - Respondent
C.R. No. 1114 of 1999 (J)
Decided On : 05-01-2000

Headnote:(1) Decree – – wrong map annexed with the decree – – right mop may be ordered to be annexed.

       (2) Civil Procedure Code, 1908 – – S. 115 – – wrong map annexed with decree – – may be ordered to be replaced by correct map.

        Short Note

       1. By this revision petition, the applicant – judgment debtor seeks to challenge the Order dated 29.7.99 passed in Execution Case No. 107 A/96 by the learned Vth Civil Judge, Class II, Bilaspur, rejecting his objections relating to the exact extent of the land the possession of which is required to be given to the decree holder in execution of the decree.

       2. From the copy of the judgment dated 23.1.99 passed in Civil Suit No.107 A/96 it appears that the plaintiff came with the case that the defendant had committed a trespass of plaintiff's land admeasuring 40 ft. land, wide 4 ft. 7 inch on western side, and in the width of 5 ft. 1 inch on the eastern side. The encroached portion was shown within the area encircled as ABCD. It appears that during pendency of the suit a Commissioner was appointed. The Commissioner submitted his report and informed the Court that the defendant did not commit trespass or encroachment as pleaded by the plaintiff, but infact the encroachment was 1 ft. 4 inch on the western side, while 2 ft. on the eastern side. It also found that the encroachment was 39 ft. east west and the total area under encroachment was 58 sq.ft. 5 sq. inches.

       3. The Court while deciding issue No.3 recorded a specific finding that the defendant committed a trespass and was in illegal possession of 58.5 sq.ft. of land.

       4. While deciding issue No.7 in para 15, the trial Court placing its reliance on the Commissioner's report (Ex. P – 8) ordered that the plaintiff is entitled to 58.5 sq.ft. land. Unfortunately with the decree instead of annexing the Commissioner's map, the map filed by the plaintiff was annexed and the controversy started. The plaintiff is claiming the area marked as ABCD in the plaint map; while the defendant is ready and willing to give possession of 58.5 sq.ft. area shown in the map prepared by the Commissioner. The Executing Court by its order dated 29.7.99 rejected the objections filed by the judgment debtor holding that the judgment debtor is not entitled to challenge the correctness of the map annexed with the decree as according to the Executing Court, it could not go behind the decree.

       5. After hearing the parties, I am of the opinion that this Court is required to exercise its powers under section 115 CPC because the illegality committed by the trial Court has come to its notice. The controversy infact has been created by an inadvertent alip on part of the learned trial Court while annexing the map with the decree. There can be no dispute about the legal proposition that the decree must contain the operative portion of the judgment and nothing beyond that. The Judgment of the trial Court shows that it was in favour of the plaintiff for an area of 58.5 sq.ft. and nothing beyond that. A map which could show the area of which possession was to be delivered to the plaintiff was required to be annexed with the decree and not the map on which the plaintiff had placed the reliance.

       6. Taking into consideration the totality of the circumstances, it is directed that the trial Court shall remove the map annexed with the decree and shall annex the map prepared by the Commissioner (Ex. P – 8) and shall proceed to execute the decree so that the possession is delivered to the decree holder. It is expected of the judgment debtor that he shall honour his words by delivering the possession without raising unnecessary objections.

       7. The revision, to the extent indicated above allowed.