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Smt. Swaranalatika Sarkar Vs. Smt. Prativa Rani Sarkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2157 of 1977
Judge
Reported inAIR1981Cal79
ActsSpecific Relief Act, 1963 - Section 22(2)
AppellantSmt. Swaranalatika Sarkar
RespondentSmt. Prativa Rani Sarkar
Appellant AdvocateSudhis Das Gupta and ;Tapash Kr. Mukherjee, Advs.
Respondent AdvocateTarun Chatterjee and ;P.K. Bhowmick, Advs.
Cases ReferredManindranath Biswas v. Radhashyam Biswas
Excerpt:
- .....july 29, 1972 and the execution case was disposed of on full satisfaction. thereafter the opposite party filed a fresh execution case, namely title execution case no. 9 of 1976 for delivery of possession of the suit property. the petitioner filed an objection under section 47 of the code of civil procedure stating that the petitioner not having asked for delivery of possession in the suit which had been filed by her, there was no direction in the decree for delivery of pos-session. thereafter the opposite party filed an application for amendment of the plaint on april 2, 1977 seeking to add a prayer for delivery of possession of the suit property. this application was allowed by the executing court on condition of payment of certain costs and the costs having been deposited by the.....
Judgment:
ORDER

Arun Kumar Janah, J.

1. This Rule is directed against Order No. 24 dated May 28, 1977 and Order No. 25 dated May 31, 1977 passed in Title Execution Case No. 9 of 1976 by the Munsif, Second Court, Bunkura allowing an application for amendment of the plaint filed by the opposite party. The facts relating to this case arc as follows :

The opposite party institued a suit against the petitioner for specific performance of a contract for sale dated July 23, 1966. But she made no prayer for recovery of possession for the said property. The suit was filed on October 2, 1966 and it was dismissed by the trial court on February 29. 1968. On appeal the lower appellate Court decreed the suit on March 12. 1970. Thereafter the petitioner preferred a second appeal to this Court which was dismissed under Order 41, Rule 11 of the C. P. Code on February 4, 1972. The petitioner filed an application for leave to appeal to the Supreme Court and the same Wits rejected on September 7, 1973. The petitioner filed an application for special leave before the Supreme Court and it was, dismissed by the Supreme Court on Sept. 11, 1974. After the appeal was allowed by the lower appellate Court the opposite party put the decree into execution in Title Execution Case No. 40 of 1971 and the kobaia was executed and registered through court on July 29, 1972 and the execution case was disposed of on full satisfaction. Thereafter the opposite party filed a fresh execution case, namely Title Execution Case No. 9 of 1976 for delivery of possession of the suit property. The petitioner filed an objection under Section 47 of the Code of Civil Procedure stating that the petitioner not having asked for delivery of possession in the suit which had been filed by her, there was no direction in the decree for delivery of pos-session. Thereafter the opposite party filed an application for amendment of the plaint on April 2, 1977 seeking to add a prayer for delivery of possession of the suit property. This application was allowed by the executing court on condition of payment of certain costs and the costs having been deposited by the opposite party, the prayer for amendment was finally allowed by the second order which has been challenged in this Rule.

2. Mr. Das Gupta, learned Advocate appearing in support of the Rule, has contended that under Section 22 of the Specific Relief Act, 1963 the court is precluded from granting any relief for possession in a suit for specific performance of contract unless such relief has been specifically prayed for. He has contended that the opposite party not having prayed for any relief by way of delivery of possession, the court did not grant her that relief and it is not open to the opposite party to pray for such relief by way of amendment of the plaint at the execution stage and that too by way of an application for second execution when the first execution case had already been disposed of on full satisfaction of the decree which was passed in the suit. The second contention urged by Mr. Das Gupta is that in the present case the decree was passed by the lower appellate court and it was only for that court to make an order for amendment of the plaint, if at all, and in the present case the executing court being the same as the trial court, it was not open to that court to grant the prayer of the opposite party for amendment of the plaint.

3. Mr. Chatterjee, learned Advocate for the opposite party, points out that the proviso to Section 22 of the Specific Relief Act provides that 'the Court shall, at any stage of the proceeding allow him to amend the plaint' and therefore the court was perfectly justified in the present case in granting the opposite party's prayer for amendment of the plaint.

4. Mr. Das Gupta on the other hand has contended that the meaning of the expression 'at any stage of the proceeding' obviously refers to pending proceedings. But as there was no pending proceeding in the present case, the prayer for amendment could not have been allowed. He has referred to Stroud's Judicial Dictionary, 4th Edition. Vol V, page 2604 where the word 'stage' has been defined to mean 'where a court, judge, or arbitrator has the power, for example, to amend, strike out, refer, stage a case. etc. 'at any stage of the proceeding', the power applies so long as anything remains to be doneto complete the judgment or award, for example, assessment of damages after judgment determining the liability. But where the proceedings are complete, for example, when the auard has been made in an arbitration, the power is gone.'

5. On this question Mr. Chatterjee relied upon the decision in Ex-Servicemen Enterprises (P.) Ltd. v. Sumey Singh reported in AIR 1976 Delhi 56. This decision was also relied upon by the learned Munsif in passing the orders which have been challenged in this Rule. But it is to be noticed that in that case the execution case had not yet been started and there was no question of merger of the decree of the trial court with the decree of the lower appellate court as is the case here. Mr. Das Gupta has defetended that after a judgment has been delivered and a decree has been signed, those can be altered only under the provisions of Order 20. Rule 3 of the Code of Civil Procedure which provides that the judgment once signed shall not afterwards be altered or added to save as provided by Section 152 or on review. In the present case there was no question of application of Section 152 or review and therefore it was not open to the court to alter the judgment.

6. Mr. Chatterjee has contended on behalf of the opposite party that the court below was justified in allowing the amendment on the authority of the decision in Manindranath Biswas v. Radhashyam Biswas reported in : AIR1953Cal676 . He has submitted that the court has inherent power to allow amendment of the execution petition.

7. In that case there was a valid execution petition pending before the executing court and in the circumstances of the case it was held that the court had jurisdiction to allow amendment of the execution petition. But that is not the case here. Here the execution petition which was originally filed and the execution case which was started on the basis thereof, namely Title Execution Case No. 40 of 1971 had been disposed of on full satisfaction of the decree by execution of the kobala through court on July 29, 1972. After the disposal of the first execution case as aforesaid, the opposite party filed a second application for execution on August 12. 1976 for delivery of possession. The prayer for delivery of possession was not included in the suit and consequently no such relief was granted in the decree. The opposite party wanted to include such a prayer in the plaint so that she could obtainsuch a relief in the decree and for that purpose she filed an application for amendment of the plaint. The position that emerges from the authority cited by the parties is that such an application cannot be allowed for enabling the plaintiff-opposite party to obtain the relief which she is now asking for. In that view of the matter, it must be held that the court below was not right in passing the orders moved against.

8. This Rule is therefore made absolute. The orders moved against are set aside and the application for amendment of the plaint filed by the opposite party is dismissed without any order as to costs.

9. There will be no order as to costs in this Rule.


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