C.R.P. No. 4056 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.03.2023

CORAM

THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI

C.R.P.No.4056 of 2022

and

C.M.P.Nos.21033 & 21035 of 2022

1.Mangali

2.Malliga

... Petitioners

Vs

Sakku Bai(Deceased)

1.Paramandaman

Radha (Deceased)

Muniammal (Deceased)

Dharman (Deceased)

2.Sarasu

3.Shankar

... Respondents

PRAYER : Civil Revision Petition filed under Section 115 of Code of Civil

Procedure, praying to set aside the fair and decreetal order dated 09.11.2022

made in EA No.2 of 2019 in EP No.3492 of 1988 in O.S.No.1395 of 1983

on the file of X Assistant City Civil Court, Chennai.

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C.R.P. No. 4056 of 2022

For Petitioners

:

Mr.B.Manoharan

For Respondents :

Mr.S.Arulandu

O R D E R

By challenging the impugned order passed by the learned X Assistant

City Civil Judge, Chennai, in E.A.No.2 of 2019 in E.P.No.3492 of 1988 in

O.S.No.1395 of 1983 dated 09.11.2022, the petitioners/Judgment debtors

have preferred this Revision.

2. The case of the Judgment debtor is that, during the execution

proceedings, the respondents / decree holders have filed an application to

amend the decree with regard to the description of the property wrongly

mentioned as New S.No.70/3 instead of New S.No.70/5. To support their

contention, the petitioners have already filed a sale deed with regard to the

suit property, which was clearly indicated as S.No.70/5. With regard to

other features, TS.No.66 and Block No.27 in the proposed amended

schedule describing the plaint schedule in respect of the old Survey number

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C.R.P. No. 4056 of 2022

remains same and the said application was objected to by the Judgment

debtors status that, without amendment, the decree holder is not entitled to

file an application before the Execution Court. The judgment debtor raised

an objection stating that the decree holder has not furnished the correct

particulars correlating the said amendment and during the appeal proceeding

also, they did not raise any objection and therefore the application filed by

them is not maintainable. Hence he prayed to dismiss the application.

3. On Considering submissions made on either side, the Executing

Court held that in the sale deed, which was relied on by the plaintiff dated

05.06.1960, the new S.No.70/5 was wrongly mentioned as S.No.70/3 and

therefore it was to be corrected by way of an amendment and not by way of

changing the character of the decree. Hence, the relief of the plaintiff in the

suit was accordingly allowed.

4. Now the learned counsel for the petitioners / Judgement Debtors

submitting that, the respondents / decree holders have straight away filed a

petition before the Executing Court, without filing an application to amend

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C.R.P. No. 4056 of 2022

the decree. To support his contention, he relied on the Order in 2006 SCC

Online AP 500: (2007) 1 ALD 367: (2007) 4 ALT 677 in the High Court

of Judicature, Andhra Pradesh at Hyderabad, Yempalla Ramaiah Vs.

Pallamparthi Krishna Reddy and others in CRP.No.6779 of 2003, which

as follows:

1.......Thereafter, respondents filed a petition under

Section 152 C.P.C. in E.A.No.9 of 2001 seeking amendment of

the decree passed in their favour which was opposed on

various grounds by the revision petitioner and others.

Negativing their contention, the executing Court allowed the

said E.A. by the order under revision. Hence this revision.

6. Even if I follow the ratio in Tiko's case(Supra), and

treat the petition as a petition to amend the decree filed on

the original side, but not a petition in execution, inasmuch as

the decre as amended, as per the prayer in this petition

would not be in agreement with the operative portion of the

judgment it may lead to complication. So unless the judgment

is corrected no useful purpose would be served in correctin