Jammu & Kashmir High Court: Sindhu Sharma, J. allowed the revision petition on the grounds that the executing court had a duty to rectify the decree in order to execute it.
The petitioner filed a revision petition against the order dated 26.04.2018 passed by the learned Munsiff, Kathua which dismissed the execution petition filed by the petitioner. The Munsiff Court denied the execution petition on the grounds that it was misconceived and was accordingly dismissed as it was without any merit. The dispute regarding the Sale deed was that Khasra No.109 according to the statement of the Patwari was 08 Kanals, out of which, the petitioner had purchased only 02 Kanals & 15 Marlas of land and the stand of the defendants in the Trial Court was, they purchased only 04 Kanals of land out of this Khasra number.
The first question for consideration was whether the revision was maintainable in view of the provisions of Section 115(1) of the CPC constituted vide Act No.6/2009 dated 20.03.2009. Since the order impugned could only be sustained if it was illegal and perverse and the present Court has jurisdiction under Section 104 of Constitution of Jammu & Kashmir to interfere in the interest of justice.
It was held that the Executing Court while dismissing the execution petition has virtually nullified the judgment declaring Decree Holder as owner in possession of the suit land in respect of which the Decree Holder had applied for execution. Assuming that the application is not strictly in accordance with the mandate of Order 21 Rule 32 of the CPC, the Court ought to have directed the Decree Holder to seek appropriate relief, even otherwise, the Court should not have dismissed the application without giving liberty to the Decree Holder to file fresh application for execution seeking appropriate relief.
The Court also relied on the decision of the Supreme Court in Pratibha Singh v. Shanti Devi Prasad ,(2003) 2 SCC 330 wherein it was held that the Executing Court can correct the decree under Section 152 CPC so as to make the decree executable. It was further observed that a decree of a competent Court should not, as far as practicable, be allowed to be defeated on accord of accidental slip or emotions. Since the decree became final because the Judgment Debtor did not challenge it, the Executing Court had a duty to correct the decree under Section 152 of CPC so that it didn’t give rise to any disputes.
The Executing Court being a Trial Court was also directed to correct the decree before proceeding further, for which purpose, the Sale Deed registered in favour of the petitioner would be the main evidence and the Patwari could be summoned by the Court to demarcate the land of the petitioner.
In view of the above noted facts, the petiton was allowed and the record of the Trial Court was remitted back.[Suram Singh v. Lal Chand , CR. No. 26 of 2018, decided on 05-09-2019]