U. Udayabhanu v. Prasanna

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932** **WP(C).NO. 5068 OF 2010(O)** **-------------------------------------AGAINST THE ORDER IN EP.17/88,EA.265/09 IN OS.44/1973 OF SUB COURT, TIRUR** **....................** ## **PETITIONER(S):** **---------------------** **U.UDAYABHANU, S/O. ANJANAVATHI, UNIKKAL HOUSE, P.O.NEDUVA, PARIYAPURAM AMSOM & DESOM, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV** **RESPONDENT(S):** **-------------------------** **PRASANNA, D/O. RAMAKRISHNAN, KANNAMARAKKANTE PURAKKAL, KALPAKADAVU, MAHI.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2010 ALONG WITH WPC NO. 7889 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** **---------------** ## **PETITIONER'S EXHIBITS:** ## **---------------------------------** **EXHIBIT P1 TRUE COPY OF THE AFFIDAVIT FOR THE AMENDMENT APPLICATION E.A. NO.265 OF 2009 FILED BY THE PRESENT RESPONDENT DATED 10.7.2009.** **EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE PRESENT PETITIONER TO EXT.P1 DATED 4.8.2009.** **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE SUB COURT, TIRUR IN E.A. NO.265 OF 2009 IN E.P. NO.17 OF 1988.** **RESPONDENT'S EXHIBITS:** **----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.5068 of 2010 and W.P(C) No.7889 of 2010 ==================================== Dated this the 30[th] day of June, 2010** ## **J U D G M E N T** These Writ Petitions are in challenge or Ext.P3, order in the respective Writ Petitions arising from E.A. No.265 of 2009 and E.A. No.90 of 2010, respectively in E.P. No.17 of 2008 and E.P.No.47 of 2006, respectively in O.S. No.44 of 1973. That is a suit for partition of the schedule properties, at that time situated in Raryiamangalam amsom and Erankara desom. Preliminary and final decrees were passed in the suit. As per the final decree respondent in W.P(C) No.7889 of 2010 was allotted plots M1, M2, M3 and M4 in Ext.C5, plan. Similar allotment was made in favour of respondent in W.P(C) No.5068 of 2010 also. Respondents sought execution of the final decree and delivery of the respective plots allotted to them. While so petitioner filed E.A.No.328 of 2006 claiming right over the property involved in W.P(C) No.7880 of 2010 and that claim was allowed by the executing court which was challenged by the respondent in W.P(C) No.33447 of 2007 and she got a favourable verdict. This Court directed that plots M1 to M4 **W.P(C) No.5068 & 7889 of 2010** ## -: 2 :- (both inclusive) in Ext.C5, plan to be delivered to the respondent in W.P(C) No.7889 of 2010. Proceeding in execution continued. It is revealed that on account of the reorganisation of Taluks there happened to be change in the amsom and desom of the properties involved and accordingly applications were filed in the respective execution petitions to add the new amsom and desom along with the existing amsom and desom for the purpose of clarification. Those applications were allowed by the executing court which is under challenge in these Writ Petitions. Learned counsel for petitioners raised the following contentions: (1) Execution petitions could not be amended invoking power under Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”). (2) Executing court could not have allowed amendment of the execution petitions without amending the final decree. (3) Applications are belated, and; (4) even if the applications as filed are allowed further amendment of the execution petitions would be needed. 2. Learned counsel has placed reliance on the decision in ## **Rukmini Devi Pawan Kumar** (AIR 1979 Patna 88) to contend that the power under Order VI Rule 17 of the Code could not have been exercised to amend the execution petition and the **W.P(C) No.5068 & 7889 of 2010** ## -: 3 :- decision in **V.D.Modi v. R.A. Rehman** (AIR 1970 SC 1475) to contend that without amending the final decree there could be no amendment of the execution petition. Learned counsel for respondent in W.P(C) No.7889 of 2010 contended that no question of amendment is involved since what is sought to be achieved by the applications is only to incorporate in the execution petitions the new amsom and desom also consequent to the reorganisation of Taluks in order to clarify that properties sought to be delivered are the same as stated in the final decree and directed to be allotted to the respondents in the respective Writ Petitions. It is also contended that petitioner has no right to stand in the way of delivery of properties to the respondent in W.P(C) No.7889 of 2010 in view of the order of this Court in W.P(C) No.33447 of 2007. 3. It is not disputed before me that for effecting delivery an Amin was deputed by the executing court who reported about the change in amsom and desom. Thereon executing court called for report from the Tahsildar concerned who in his report stated that consequent to the reorganisation of Taluks there happened to be change in the amsom and desom. The Tahsildar was examined as a witness in the executing court. It is thereafter that ## **W.P(C) No.5068 & 7889 of 2010** ## -: 4 :- relevant applications were filed in the executing court to state in the execution petitions the new amsom and desom consequent to reorganisation. No doubt, Order VI Rule 17 of the Code does not as such apply to execution petitions as the Patna High Court has held in the decision reason being that the said provision enabled the court to amend pleadings which meant plaint and written statement and nothing else. But it is not as if, if Order VI Rule 17 of the Code did not apply executing court is powerless to amend the execution petition. So far as the court does not prohibit, that can be done under Section 151 of the Code. Section 153 of the Code confers general power on the court to amend any defect or error in any proceeding in a suit. Hence the label given to the applications by the respondents need not be given much importance. 4. Then the question is whether execution petitions could have been amended without amending the final decree. It is not disputed before me that at the time the suit was instituted, properties were situated in the amsom and desom referred to in the plaint schedule which has been carried into the preliminary and final decrees also. Even if it is assumed that reorganisation took place before final decree was passed as petitioner contend, it ## **W.P(C) No.5068 & 7889 of 2010** ## -: 5 :- is not as if there is any dispute regarding identity of properties. It is only a change in the amsom and desom consequent to the reorganisation. It is not is if executing court cannot take note of that change even without any application for correction of the execution petition. So far as there is no dispute regarding identity of the property such technicalities shall not stand in the way of executing court in discharging its functions and particularly when the suit is for partition filed in the year 1973 and parties are fighting since then. What is sought by way of amendment to the execution petition is not any change from the final decree but a clarification on account of reorganisation of the Taluks referred to above and the new amsom and desom are also brought into the execution petitions to ensure that the property sought to be delivered is the same stated in the final decree. It is more clarificatory in nature than an amendment as such. 5. Then the question is delay in filing the applications. Learned counsel for petitioner contended that even in Ext.C5, plan it has been pointed out that property falls in the amsom and desom now sought to be incorporated in the execution petitions by the applications under challenge. Mere delay is no reason to deny relief to respondents who are fighting from 1973 onwards. ## **W.P(C) No.5068 & 7889 of 2010** **==> picture [41 x 10] intentionally omitted <==** Having heard counsel on both sides in W.P(C) No.7889 of 2009 and counsel for petitioner in W.P(C) No.5068 of 2010 I am not persuaded to think that there is any substantial amendment sought to the execution petitions which could not have been done unless final decree schedule was amended. As I stated amendment is only clarificatory in nature. I find no merit in these Writ Petitions. Writ Petitions are dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv