Ashutosh Das vs Smt. Sushma Rani Das And Ors.

on 20 January, 2004

Gauhati High Court

Ashutosh Das vs Smt. Sushma Rani Das And Ors. on 20 January, 2004
Equivalent citations: AIR 2004 Gau 136
Author: I Ansari
Bench: I Ansari
ORDER I.A. Ansari, J.

1. This revision serves as an example as to how a small unmindful and inadvertent act of omission
on the part of a Court, at the right moment, can lead to denial of the reliefs, which the Court might
have itself granted.

2. The order, dated 10-3-99, passed by the learned Civil Judge (Jr. Divn) No. 1, Karimganj, in Title
Execution No. 7/98, is under challenge in the present revision by the decree-holder.

3. The facts leading to the present revision may be noticed as follows :--

(i) The plaintiff instituted Title Suit No. 31/87, in the Court of learned Civil Judge (Jr. Divn.) No. 1,
Karimganj, seeking recovery of possession of the suit premises under Section 6 of the Specific Relief
Act. The suit was dismissed on 20-7-91, by the learned trial Court on the ground that since the
plaintiff and defendant No. 1 jointly possessed the suit premises and since the plaintiff was,
admittedly, not the sole occupier of the suit premises, a suit for recovery of possession was not
maintainable. A decree was, accordingly, drawn and the same was challenged in Civil Revision No.
286/91. This Court disposed of the said revision petition by its order, dated 4-8-95, holding to the
effect that Section 6 of the Specific Relief Act is applicable to the recovery of jointly possessed
property too. This Court, accordingly, set aside the order, dated 20-7-91, aforementioned and
remanded the suit for re-hearing and disposal in accordance with law. The suit, accordingly,
proceeded and by judgment and order, dated 21-10-96, the learned trial Court decided all the issues
in favour of the plaintiff. While dealing with Issue No. 5, it came to the conclusion that the plaintiff
was dispossessed from the suit shop house and that the plaintiff was entitled to get recovery of his
possession of the suit shop house with cost of the suit. The suit was, accordingly, decreed. The
defendant impugned the judgment and decree, so passed, in Civil Revision Petition No. 115/97. By
judgment and order, dated 26-11-98, passed in this revision, this Court held to the effect that the
plaintiff was dispossessed by the defendant and, hence, there was no merit in the revision petition.
The revision was, accordingly, dismissed. Thereafter, out of the decree granted in Title Suit No.
317/97, Title Execution Case No. 7/98 commenced. When the decree, so granted in TS 317/97
aforementioned, was put to execution in Title Execution Case No. 7/98, it was reported, on 16-1-99,
to the Executing Court by the plaintiff that the decree could not be executed due to the obstruction
created by the judgment-debtor, that there was likelihood of the breach of peace and, hence, police
help be provided for executing the decree. The prayer was, accordingly, allowed.

(ii) Before the execution of the decree with the help of police could take place, the judgment-debtor
made, in Title Execution Case No. 7/1998 aforementioned, an application, on 27-1-99, under Section
47 of the Code of Civil Procedure stating to the effect, inter alia, that the defendants No. 1 and 2 were
in possession of the disputed property and that the decree, in question, had not been prepared in

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 Ashutosh Das vs Smt. Sushma Rani Das And Ors. on 20 January, 2004

accordance with the judgment and sought for stay of the execution of the decree and for preparing
the decree in accordance with the judgment. The decree-holder too made an application, on 3-2-99,
for expeditiously disposing of the Execution Case aforementioned. While the application made by
the judgment-debtor under Section 47 was still pending, another application was made, on 4-2-99,
by the judgment-debtor in Title Execution Case No. 7/98 aforementioned stating, inter alia, that
though the Court had declared joint possession of the plaintiff and the defendant, the decree had not
been prepared accordingly and that the Title Execution Case aforementioned cannot proceed
without modification of the decree in terms of the judgment. This application was registered as
Misc. Case No. 12/99. On considering these applications and upon hearing the learned counsel for
the parties, the learned Executing Court passed an order, on 4-2-99, directing the judgment-debtor
to produce the certified copy of the relevant judgment to enable the Executing Court to consider and
dispose of both sets of applications, namely, applications filed by the decree-holder praying for
expeditious execution of the decree and also the resistance thereto created by the judgment-debtor
on the ground that the decree which was sought to be executed, had not been prepared in terms of
the judgment.

(iii) Thereafter, the judgment-debtor made another application under Section 152 of the Code of
Civil Procedure seeking amendment of the decree on the ground that as per judgment in Title Suit
No. 317/87 aforementioned, the decree was granted declaring joint possession of the suit property
by the plaintiff and the defendant, but the decree had not been prepared accordingly and upon
making necessary modifications only, the decree should be put to execution. The decree-holder filed
his objection to the prayer, so made, by the judgment-debtor. Upon considering the matter in its
entirety and upon hearing the learned counsel for the parties, the learned Executing Court passed
the order, dated 10-3-99, holding to the effect that the decree was not consistent with the findings of
the Court and the decree needs to be modified. It is this order, which stands impugned in the
present revision by the decree-holder.

4. I have perused the materials on record. I have heard Mr. R. P. Kakati, learned counsel for the
decree-holder-petitioner, and Mr. B. C. Das, learned counsel for judgment-debtor-opposite party,

5. It has been submitted, on behalf of the decree-holder-petitioner, that the impugned order is bad
in law inasmuch as the learned Executing Court has merely stated therein that the decree is not
consistent with the findings of the Court, but it has not been clearly stated in the impugned order as
to how the decree can be said to be not in accordance with the judgment. This apart, the decree,
according to Mr. Kakati, is consistent with the judgment and, hence, there is no reason for not
executing the decree and/or for making any modification in the decree,

6. Controverting the above submissions made on behalf of the petitioner, Mr. B.C. Das has
contended that in the case at hand, the relevant judgment indicates that the learned trial Court had
held that the plaintiff was entitled to get recovery of his joint possession with the defendant No. 2 in
the said suit shop house with cost of the suit. However, points out Mr. Das, in the decree, which has
been drawn and put into execution, what has been stated merely is that "the suit is decreed on
contest with cost". Acting upon this decree, an attempt was made, submits Mr. Das, to oust the
defendant-judgment-debtor from the suit premises, which was not the aim of the judgment of the

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 Ashutosh Das vs Smt. Sushma Rani Das And Ors. on 20 January, 2004

learned trial Court and what can, at best, be done is that the decree, upon being drawn in terms of
the judgment, should put the plaintiff-decree-holder and the defendant-judgment-debtor in joint
possession of the suit shop house. In this view of the matter, contends Mr. Das, learned trial Court
ought to have corrected and modified the decree before putting the same into execution, when the
defects in the decree were pointed out to the learned Executing Court, and by the impugned order,
the learned Executing Court, having realized the error, which had been committed, directing Court,
and by the impugned order, the learned Executing Court, having realized the error, which had been
committed, directed the decree to be modified in accordance with the judgment. The impugned
order is, thus, according to Mr. Das, consistent with the materials on record and may not be
interfered with. In support of his submission that by making an application under Section 152, when
the defendant-judgment-debtor had sought for correction/modification/amendment of the decree,
the same ought to have been allowed, Mr. Das has referred to, and relied upon, Laxmi Ram Bhuyan
v. H.P. Bhuyan, reported in (2003) 1 SCC 197 : (AIR 2003 SC 351).

7. Before entering into the discussion on the merit of the rival submissions made before me, on
behalf of the parties, what is of paramount importance to note is that Section 47 of the Code of Civil
Procedure provides for raising of questions for determination by the Court executing a decree. It is
important to bear in mind, while dealing with Section 47, that execution of a decree can be
challenged only when the decree is a nullity. By nullity, what is meant is that the Court, which had
granted the decree, inherently lacked jurisdiction to try the suit.

8. In the case at hand, the challenge to the execution of the decree did not rest on the ground that
the decree was a nullity; hence, the question of invoking of the provisions of law contained under
Section 47 did not arise at all. Thus, in the case at hand, the learned Executing Court had really no
role to play inasmuch as the Executing Court cannot vary, modify and/or change a decree. It can
either execute a decree or refuse execution of the same. It cannot go behind the decree. If a decree
has to be modified or corrected, the same has to be done by the Court, which delivered the judgment
and rendered the decree.

9. In the present case, though the Trial Court as well as the Executing Court are one and the same,
namely, the Court of Civil Judge (Jr. Divn.) No. 1, Karimganj, the fact remains that the scope of the
Executing Court as well as of the trial Court are entirely different and one cannot intrude into the
field of other and/or become a substitute for the other.

10. In the case at hand, the application by the defendant-judgment-debtor seeking modification of
the decree was filed under Section 152 Code of Civil Procedure. An application under Section 152
cannot be dealt with by the Executing Court under Section 47 and, hence, the same ought to have
been dealt with by the learned Court below as the original Court under Section 152.

11. Keeping in view the above aspect of the matter, when I turn to the judgment, in question, I notice
that the judgment clearly states that the plaintiff was entitled to get recovery of his joint possession
with the defendant No. 1 in the suit shop house with cost of the suit. What is, now, pertinent to note
is that so far as the possession was concerned, the judgment, in question, states that the plaintiff was
entitled to get recovery of his joint possession with the defendant No. 1 in the suit shop house.

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 Ashutosh Das vs Smt. Sushma Rani Das And Ors. on 20 January, 2004

Unfortunately, despite such a clear finding, the judgment did not specify the reliefs, which the
learned trial Court had granted, in the suit, to the plaintiff.

12. Because of the failure of the learned trial Court to specify in its judgment what reliefs it had
really chosen to grant, the decree merely stated, "suit is decreed on contest with cost". What exactly
were the reliefs granted by the Court by its judgment, dated 21-12-96, were not mentioned in the
judgment and in consequence thereof, the reliefs granted could not be reflected in the decree, in
question. Thus, the judgment as well as the decree were, undoubtedly, vague, though it was the
bounden duty of the Court to prepare the decree in terms of under Order 20, Rule 6 of the Code of
Civil Procedure specifying clearly the reliefs granted or other determination of the suit. When a
judgment does not specify the reliefs granted, a decree, which is prepared on the basis of such a
judgment, is bound to suffer from the same infirmity as the judgment.

13. A careful reading of Order 20 CPC makes it clear that a judgment shall contain all the issues and
findings or decision thereon with the reasons therefor. The judgment shall also specify the reliefs
granted in the suit. On the basis of the judgment, decree needs to be prepared. Order 20 requires
that the decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the
claim and shall specify clearly the reliefs granted or other determination of the suit. The decree shall
also state that amount of the costs incurred in the suit and by whom or out of what property and in
what proportions, such costs are to be paid or realized or recovered. The very obligation by the Code
that the decree shall agree with the judgment casts an obligation on the part of the author of the
judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found
entitled to so as to enable the decree being framed in such a manner that it agrees with the judgment
and specifies clearly the reliefs granted or other determination of the suit. A self-contained decree, if
drawn up in conformity with the judgment, would exclude possibilities of objections raised and
complexities arising at the stage of execution.

14. The plaintiff, being dominus litus, can ask for any relief and he may couch the reliefs, sought for,
in such words and in such manner as he pleases, but it is for the Court, decreeing the suit, to
examine the reliefs and, then, construct the operative part of the judgment in such a manner so as to
bring the reliefs granted in conformity with the findings arrived at on different issues and also the
admitted facts. If the trial Court merely observes in the operative part of the judgment that the suit
is decreed with costs, it really conveys nothing and the omission to specify the reliefs, to which the
successful party has been found entitled to, tantamount to failure on the part of the author of the
judgment to discharge the obligation cast on him by the provisions of the Code of Civil Procedure.
The reference made by Mr. Das to the case of Laxmi Ram Bhuyan (supra) is not at all misplaced
inasmuch as in this case, the Apex Court has clarified the position of law thus (at page 354; of
AIR):--

"In the case at hand, a perusal of the reliefs prayed for in the plaint shows that the reliefs are not
very happily worded. There are some reliefs, which may not be necessary or may be uncalled for,
though prayed for. The reliefs may have been considered capable of being recast or redefined so as
to be precise and specific. May be, that the Court was inclined to grant some other relief so as to
effectually adjudicate upon the controversy and bring it to an end. Nothing is spelled out from the

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appellate judgment. The trial Court, on whom the obligation was cast by the second appellate
judgment to draw up a decree, was also, as its order shows, not very clear in its mind and thought it
safe to proceed on an assumption that all the reliefs sought for in the plaint were allowed to the
plaintiffs. The learned Single Judge allowing the second appeal should have clearly and precisely
stated the extent and manner of reliefs to which the plaintiffs were found to be entitled in his view of
the findings arrived at during the course of the appellate judgment. The parties, the draftsman of the
decree and the executing Court cannot be left guessing what was transpiring in the mind of the judge
decreeing the suit or allowing the appeal without further placing on record the reliefs to which the
plaintiffs are held entitled in the opinion of the Judge.

In these circumstances the successful party has no other option but to have recourse to Section 152
CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors
arising therein from any accidental slip or omission being corrected at any time by the Court either
on its own motion or on the application of any of the parties. A reading of the judgment of the High
Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an
accidental slip or omission in manifesting the intention of the Court by couching the reliefs to which
the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the Court
to vary its judgment so as to give effect to its meaning and intention.

The order of the trial Court drawing up the decree is set aside. The parties are allowed liberty of
moving the High Court under Section 152 CPC seeking appropriate rectification in the judgment of
the High Court so as to clearly specify the extent and manner of reliefs to which in the opinion of the
High Court the successful party was found entitled consistently with the intention expressed in the
judgment."

(Emphasis is added)

15. In the case at hand, the learned trial Court, as already indicated hereinabove, did not specify in
the judgment at all as to what reliefs it had really granted in favour of the plaintiff. This serious
omission on the part of the learned trial Court led to a vague and confused decree inasmuch as the
decree merely stated, as indicated hereinabove, that the "suit was decreed on contest with costs"
without giving any indication at all in the decree, in question, as to what reliefs had really been
granted to the decree-holder.

16. Thus, the decree was vague and incapable of execution, but the same could not have been
corrected or rectified by the Executing Court under Section 47 of the Code inasmuch as an Executing
Court cannot, as already mentioned above, go behind the decree and/or correct and/or rectify the
same. It can, if I may, reiterate, either execute a decree or refuse execution thereof. In a situation,
such as the one at hand, the remedy lies in taking recourse to Section 152 of the Code of Civil
Procedure, which provides for correction, at any time, by the Court, either on its own motion or on
the application of any of the parties, of clerical or arithmetical mistakes in the judgments, decree or
orders or errors arising therein from any accidental slip or omission being corrected. The omission
on the part of the learned trial Court to specify the reliefs granted in the judgment was really an
accidental slip or omission within the meaning of Section 152 and if it is not corrected, it will lead to

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 Ashutosh Das vs Smt. Sushma Rani Das And Ors. on 20 January, 2004

serious miscarriage of justice inasmuch as it will frustrate the decree itself. This accidental slip or
omission can be corrected, as laid down in Laxmi Ram Bhuyan (supra), by taking recourse to
Section 152, for, Section 152 enables the Court to vary its judgment so as to give effect to its meaning
and intention.

17. The learned Court below, however, in the impugned order failed to make the corrections in the
judgment under Section 152 of the Code of Civil Procedure. Thus, the learned Court below has failed
to exercise the jurisdiction, which was vested in it by law. Such an order will, if allowed to stand
good on record, cause serious miscarriage of justice. The impugned order, therefore, needs to be
interfered with and set aside inasmuch as the same has been passed by the Executing Court.

18. What, thus, crystallizes from the above discussion is that the impugned order needs to be set
aside and the learned trial Court needs to be directed to pass appropriate orders in the light of the
observations made hereinabove correcting the judgment by clearly specifying therein the reliefs
granted and in terms of the order, which is required to be so passed, the learned trial Court shall
correct the decree and, then, the decree, so prepared, shall be put into execution in accordance with
law.

19. Since the judgment-debtor has already made an application under Section 152 of the Code of
Civil Procedure seeking appropriate rectifications, the learned trial Court and not the Executing
Court shall specify the reliefs, which it found the plaintiff entitled to, and upon specifying the reliefs
granted, necessary decree shall be prepared.

20. In the result and for the reasons discussed above, this revision partly succeeds. The impugned
order shall stand set aside and the learned trial Court is hereby directed to pass necessary order(s)
on the judgment-debtor's application made under Section 152 of the Code keeping in view the
position of law as indicated hereinabove.

21. No order as to costs.

22. In order to avoid any further delay, the parties to this revision are hereby directed to appear in
the learned Court below on 10-2-2004 and upon their appearance, as directed, the learned Court
below shall do the needful expeditiously and preferably within a period of 2 (two) months with effect
from today.

23. Send back forthwith the LCR with a copy of this judgment and order.

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