PRATIBHA SINGH AND ANR.versusSHANTI DEVI PRASAD AND ANR.

A                         PRA TIBHA SINGH AND ANR.
                                      v.
                        SHANTI DEVI PRASAD AND ANR.

                               NOVEMBER 29, 2002

B                   [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]


          Code of Civil Procedure, 1908

           Ss.47 and 152-Suit for specific performance of contract to sell
C   immovable property-Failure on part of plaintiff to give specific description
    of property-Suit decreed-Execution-Omission on part of execution court
    to insist on compliance of Order 21 r.34(2)-Held, where suit as to immovable
    property has been decreed and the property is not definitely identified, the
    defect can be cured-A successful plaintiff should not be deprived offruits of
D   the decree-A decree of a competent court should not as far as practicable,
    be allowed to be defeated on account of an accidental slip or omission-
    Resort can be had to s.152 or s.47 depending on !pets and circumstances of
    case-Being an advertent error, not affecting merits of the case, it may be
    corrected u!s.152 by the court which passed the decree-Alternatively, exact
    description of decretal property may be ascertained by execution court a.s a
E   question relating to execution, discharge or satisfaction of decree within the
    meanings of s.47-0n facts, it would be more appropriate to invoke s.47-
    Execution court would, after hearing the parties rectifY the map filed by decree-
    holder and such corrected map wouldform part ofthe sale deed-Accordingly,
    possession shall be delivered by judgment-debtor-These directions are given
F   partly in exercise of powers under Article 142 of the Constitution for doing
    complete justice-Constitution of India-Article 142.

           Order 7, r. 3, Order 20, r. 3-Suit for specific performance of contract to
    sell immovable property-Plaintiff's failure to give specific description of suit
    property-Held, plaintiff ought to have annexed with the plaint the map ofsuit
    proper~Jf plaintiff committed an error, defendant should have objected to
    it promptl~Default or carelessness ofparties does not absolve trial court of
    its obligation, while scrutinising the plaint, to point out the omission on the
    part of the plaintiff and it should hav,e insisted on filing a map of the suit
    property-However, the defect in the court record caused by overlooking the
    provisions contained in Order 7 r.3 and Order 20 r.3 can be cured under
H                                         406
                    PRA TIBHA SINGH v. S.D. PRASAD                          407
s.152 or s.47 depending on facts and circumstance of each case.                     A
     Order 21, r.34(2)-Procedure for execution of docun1ents pursuant to a
decree-Decree for specific pe1forn1ance of contract to sell imniovable
property-Execution-Failure on part of decree-holder to sub1nit lo the court
a draft of sale deed in accordance with terms of the decree---Resultantly draft
sale deed accompanied by a notice requiring objections to be made by judgment B
debtor as provided by sub-rule(2) ofr.34 of Order 21 was not caused to be
served by the court-Judgment-debtor insisting on draft sale deed being
delivered to him-No determination by execution court as to specification of
suit property-Held, execution .court would decide upon the correctness of the
map forming part of the sale deed and if need be would rectifa it in part or C
wholly and the deed of sale would take effect accordingly.

     Order 41, r.6-Security in case of order for execution of decree appealed
from-High Court staying execution ofdecree under appeal subject to appellant
depositing certain t;1mount as security and entitling the respondent to withdraw
that amount-Respondent withdrew the amount-When the appeal was finally              D
disposed of High Court not making any order as to appropriation of the
security amount-Held, in the absence of any specific judicial order made by
High Court or by any other court, the amount deposited as security cannot be
appropriated by other party and should be returned to the depositor.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7891-7892                      E
of 2002.

     From the Judgment and Order dated 27. I l.200 I of the Jharkhand
High Court in C.R. 15/01 and 61/01.

      Appellant-in-person.                                                          F
      Respondent-in-person.

      The following Order of the Court was delivered :

      Leave granted.                                                                G
      Failure on the part of plaintiffs to give correct, specific and exact
description of the immovable property forming subject-matter of suit, added
by omission on the part of the Trial Court to insist on compliance by the
draftsman of the plaint with the rules of pleadings, has resulted in a decree
which is yet to witness its full execution and satisfaction though the litigation   H
    408                     ··SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A   has by this time stretched over two decades.

          The parties are appearing in person and we have heard them at length.
    We propose to make an order which would finally bury-to the extent we can-
    the hatchets so far wielded by the parties. The directions which we propose
    to make, after briefly setting out the facts, are partly in exercise of jurisdiction
B   conferred on this Court by Article 142 of the Constitution of India for doing
    complete justice in the Iis before us.

          Smt. Pratibha Singh, the appellant no. I is the wife of Shri Madhusudan
    Prasad Singh, the appellant no.2. The appellant no.2 is power of attorney
C   holder for appellant no. I. Smt. Shanti Devi Prasad, the respondent no. I is the
    wife of Shri Lakshmi Kant Singh, respondent no.2. Respondent no.2 is also
    power of attorney holder for respondent no. I. The agreement to sell forming
    subject-matter of decree for specific performance thereof was entered into
    between Smt. Pratibha Singh as vendor and Smt. Shanti Devi Prasad as
    vendee. However, it appears that the suit for specific performance was filed
D   by Smt. Shanti Devi Prasad and Shri Lakshmi Kant Singh, arrayed as plaintiffs
    against Smt. Pratibha Singh and Shri Madhusudan Prasad Singh, arrayed as
    defendants. For 'the sake of convenience the former two will be referred to
    as the plaintiff-decree holders while the latter two will. be referred as the
    defendant judgment-debtors.

E         The suit property is a piece of land admeasuring 8 kathas situated in
    village Hinoo of P.S. Doranda in District Ranchi. It is part of Revenue Survey
    No. 595 which has a larger area. Vide registered dead of sale dated 21st June,
    1975, the defendant judgment-debtors had purchased a piece and parcel of
    land measuring 9 decimals (0.09 acres) out of Revenue Survey plot No. 595
F which was designated as sub-plot no.595/11 out of Khata No.9, Khewat No.
    8 of P.S. Ranchi, P.S. No. 225. A map of the property so purchased was
  · annexed with the Deed of Sale. By yet another registered Deed of Sale dated
    11th June, 1976, the defendant judgment-debtors purchased another piece
    and parcel of land measuring 11 kathas 3 Chattacks out of Revenue Survey
    plot No. 595 which was described as sub-plot No. 595/I out of Khata No.9
G Khewat No.8 P.S. Ranchi, P.S. No.225. The boundaries of the land covered
    by the respective sale deeds were stated in the deeds of sale and map describing
    the location of land was each annexed therewith. It is clear that two pieces
    of land so purchased by the defendant judgment-debtors. though described in
    the deeds of sale as survey nos. 595/II and 595/I were not so designated as
H sub-plots in the revenue records-either the record of rights or in the revenue
                           PRAT!BHA SINGH v. S.D. PRASAD                         409

    survey map.                                                                         A
          The defendant judgment-debtors entered into an agreement to sell sub-
    plot No. 59511 area 6 kathas and 595/11 area 2 kathas total area 8 katha~.
    (equivalent to 2.44 acres) .in favour of the plaintiff-decree holders. It is not
    disputed that 8 kathas of land forming subject-matter of agreement to sale is
    out of the same land as the defendant judgment-debtors had purchased through B
    the two sale deeds dated 21.6.1975 and 11.6.1976 referred to hereinabove.
    The plaintiff-decree holders filed a suit for specific performance. In the plaint
    the suit property was described as under:

                             SCHEDULE OF THE SUIT LAND
                                                                                        c
               All that piece and parcel of land measuring 8 (eight) Kathas out
           of total area of I 7 Katha, 4 chatak as mentioned below:-

              Khata No.        Plot No.             Sub Plot No.       Area

              9                595                  595/I              6 Kathas
                                                                                        D
              "                595                  595/11             2 Kathas

           situated at Village Hinoo, P.S. Ranchi, P.S. No. 225 District Ranchi
           bounded and settled as follows:-

            North -           Portion of R.S. Plot No, 595                              E
            South -           Portion of sub-plot No. 595/11 belonging to the
                              defendant no. I

            East -            Ranchi Chaibasa Main Road



-           West -            Portion of R.S. Plot No.595"

           The suit was decreed. The principal relief that was allowed to the
           plaintiff-decree holders was relief no. I as prayed for in the plaint
           which is reproduced hereunder:
                                                                                        F




                  "Claim for : (i) That the defendants be directed to accept the        G
                  balance amount of the consideration under the agreement dated
                  30.11.78 read with the agreement dated 4.9.79 within a time to
                  be fixed by the court and to execute and register a deed of sale
                  with respect to the suit lands as described in the schedule of the
                  plaints in favour of the plaintiffs no. I and 2 as per terms of the
                                                                                        H
    410                      SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A               said agreement failing which the said sale deed executed by and
                registered through the court at the cost and expenses of the
                defendants."

          The decree reads as under:

B               "It is ordered and decreed that the suit is decreed on contest with
            cost. Pleader's fee of Rs. 36 and pleader Clerk fee Rs. 4 are also
            allowed. The defendants are directed to accept the balance amount of
            the consideration money under the agreement dated 30.11.78 read
            with the agreement dated 4.9.79 and are further directed to execute
            and register the sale deed of the suit lands within a period of two
c           months from the date of order failing which the plaintiffs shall be at
            liberty to get it executed through the process of the Court and that the
            sum of Rs. 3529.95p. (Three thousand five hundred and twenty nine
            and paise ninety five) as paid by the defendants to the plaintiffs on      ..
            account of the costs of this suit."
D         As there was no map of the land attached with the plaint, the decree too
    is not accompanied by any map of the property forming subject-matter of
    decree. The decree refers to the decretal property as "suit lands" which
    obviously means the lands forming subject matter. of suit as per plaint
    averments.
E
          It is not disputed that in all an amount of Rs. 32,000 was required to
    be paid by the plaintiff-decree holders to the defendant judgment-debtors as
    balance of consideration.

          It appears that the defendant judgment-debtors did not execute the sale
p

                                                                                       -
    deed as decreed, and therefore, the plaintiff-decree holders had to file an
    execution application. At one stage of the execution proceedings the plaintiff-
    decree holders filed a draft of sale deed accompanied by a map of the suit
    property to be executed and registered by the defendant judgment-debtors.
    Admittedly this map was drawn by the plaintiff-decree holders and filed for
    the first time during the execution proceedings and as accompanying the
G   draft sale deed. As we have already stated neither the plaint nor the decree
    was accompanied by any map and so also the revenue survey map did not
    indicate sµb-plot no. 595/I and 595/II. The.se sub-plots find mention either in
    the two registered deeds of sale whereby the suit property was acquired by
    the defendant judgment-debtors or in the map annexed with the court sale
H   deed.
                           PRATIBHA SINGH v. S.D. PRASAD                        411

            The Executing Court directed the draft sale deed submitted by the           A
     plaintiff-decree holders, along with the map forming part of the draft sale
     deed, to be executed and registered. That was done. Thereafter, it appears
     that the plaintiff-decree holders also got possession over some property
     purportedly the decretal property, but there was some dispute raised and the
     judgment-debtors succeeded in possession over the property being restored to
     them. As on the date, it is an admitted position, that the sale deed as per the    B
     draft filed by the plaintiff-decree holders stands executed and registered under
     the directions of the Court but the possession over the suit property is with
     the defendant judgment-debtors. There is also a dispute raised by thejudgment-
     debtors that full balance consideration has not yet been deposited by the
     plaintiff-decree holders and realised by the defendant judgment-debtors; it is     C
     stated to be short by Rs. 5000.

           At the time of hearing the parties raised very many contentions and we
     have told them that the concern of this Court is to put an end to the litigation
     guided by the overriding consideration that the decree of a competent Court
     having achieved a finality must be honoured while the judgment-debtors             D
     must receive full consideration and at this stage we would not permit sheer
     technicalities coming in the way of eXecution, discharge and satisfaction of
     the decree. It has also to be seen that the decree-holders acquire title and
     enter into possession over the property which defendant judgment-debtors
     intended to sell while the latter should not be compelled to part with any         E
     property which they did not intend to sell.

..         Out of the voluminous documents brought on record by the parties we
     have carefully compared the maps annexed with the registered sale deeds of
     the defendant judgment-debtors with the map annexed with the sale deed
     executed by the Court in execution of the decree and we find that there is         F
     some difference between the exact description and location of the property
     between the two sets of the maps. One of the noticeable difference is that
     what has been shown as survey no. 595/I in the defendant's registered sale
     deed has been shown in the Court sale deed as 595/JI and vice-verse. The
     plaintiff decree holders have pointed out that this is an inadvertent error
     though there is n,o difference in the location of the property and the area        G
     forming subject-matter of Court sale deed is 8 kathas only which area was
     the subject-matter of agreement to sell and also the decree. Be that as it may,
     some error is there.

          Order 7 Rule 3 of the CPC requires where the subject-matter of the suit
     is immovable property, the plaint shall contain a description of the property      H
    412                    SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A   sufficient to identify it. Such description enables the Court to draw a proper
    decree as required by Order 20 Rule 3 of the CPC. In case such property can
    be identified by boundaries or numbers in a record for settlement of survey,
    the plaint shall specify such boundaries or numbers. Having perused the
    revenue survey map of the entire area of R.S. plot no. 595 and having seen
    the maps annexed with the registered sale deeds of the defendant judgment-
B   debtors we are clearly of the opinion that the sub-plots 595/l and 595/ll were
    not capable of being identified merely by boundaries nor by numbers as sub-
    plot numbers do not appear in records of settlement or survey. The plaintiffs
    ought to have filed map of the suit property annexed with the plaint. If the
    plaintiffs committed an error the defendants should have objected to promptly.
C   The default or carelessness of the parties does not absolve the Trail Court of
    its obligation which should have, while scrutinizing the plaint, pointed out
    the omission on the part of the plaintiffs and should have insisted on a map
    of the immovable property forming subject-matter of the suit being filed.
    This is the first error.

D         The second error was committed during the execution proceeding. Under
    Order 21 Rule 32 of the CPC a decree of specific performance of a contract,
    on failure to obey, may be enforced by the judgment-debtor being detained
    in civil prison. Order. 21 Ru le 34 provides the procedure for execution of
    documents pursuant to a decree. Where a decree is for the execution of a
E   document the decree holder may prepare a draft of the document in accordance
    with the terms of the decree and deliver the same to the court. Thereupon the
    court shall cause the draft to be served on the judgment-debtor together with
    a notice requiring his objections, if any, to be made out within time as the
    court fixes in this behalf. Where the judgment-debtor objects to the draft, his
    objections shall be stated in writing and then determinated. The draft shall be
F   approved or altered consistently with the finding arrived at by the Court. In
    the present case the plaintiff-decree holders pointed out that the defendant
    judgment-debtors were aware of the contents of the draft sale deed. The fact
    remains that the draft sale deed accompanied by a notice requiring objections
    to be made by judgment-debtor as provided by sub-Rule 2 of Rule 34 of
    Order 21 of the CPC was not caused to be served by the Court. The record
G   also reveals the judgment-debtors repeatedly insisting, may be dogmatically,
    on draft sale deed being delivered to them enabling objections being filed.
    There is no determination by the Executing Court that the immovable property
    as delineated and demonstrated in the map accompanying the draft sale deed
    was the property forming subject-matter of agreement to sell and the decree.
H   Inasmuch as the possession is yet to be taken by the plaintiff decree holders
                      PRATIBHA SINGH v. S.D. PRASAD                         413

this· aspect can still be taken care of and that we shall do by making an           A
appropriate direction in the operative part to his order.

      When the suit as to immovable property has been decreed and the
property is not definitely identified, the defect in the court record caused by
overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3
of the CPC is capable of being .:ured. After all a successful plaintiff should      B
not be deprived of the fruits of decree. Resort can be had to Section 152 or
Section 47 of the CPC depending on the facts and circumstances of each
case-which of the two provisions would be more appropriate, just and
convenient to invoke. Being an inadvertent error, not affecting the merits of
the case, it may be corrected under Section l 52 of the CPC by the Court            C
which passed the decree by supplying the omission. Alternatively, the exact
description of decretal property may be ascertained by the Executing Court
as a question relating to execution, discharge or satisfaction of decree within
the meaning of Section 4 7 CPC. A decree of a competent Court should not,
as far as practicable, be allowed to be defeated on account of an accidental
slip or omission. In the facts and circumstances of the present case we think       D
it would be more appropriate to invoke Section 47 of the CPC.

      Another controversy between the parties is as to the sale consideration
of Rs. 52,000 (Fifty Two Thousand only) as appointed by the decree and
'Which has been deposited by the decree holders in the Court. We do not have
to enter into and re-open the controversy whether the amount was deposited          E
within time or not. The fact remains that it has been deposited. However,
there is a side controversy surviving. lt appears that at one stage of the
 litigation when the judgment-debtors preferred an appeal in the High Court,
vide order dated 13.4.1983 passed in First Appeal No. 27/83 (R), the Court
directed the execution of the decree under appeal to remain stayed subject to       F
the appellants depositing Rs. 5,000 by way of security. However, the High
Court went on to add-if the deposit is made by the appellants the respondents
shall be entitled to withdraw the same on furnishing security to the satisfaction
of the execution court'. We fail to understand how the amount of security
demanded by the Appellate Court, presumably in exercise of the power
conferred by Rule 6 of Order 41 of the CPC, was simultaneously allowed to           G
be withdrawn by the respondents in the appeal. The amount was withdrawn
by the appellants herein. When the appeal was finally disposed of, the High
Court did not make any order as to the forfeiture of the security in favour of
the plaintiff-decree holders or as to the amount of costs or mesne profits
being taxed and recovered out of the amount of security deposit. In the             H
    414                      SUPREME COURT REPORTS [2002) SUPP. ·4 S.C.R.

A absence of any further and final order having been made, the amount of
   security demanded by the High Court through its interim order should have
   remained as security liable to be released in favour of the person who had
   deposit the amount of security. In the absence of any specific judicial order
   having been made, the amount of security demanded by the 11igh Court
B through its interim order should have remained as security and liable to be
   released in favour of the person who had deposited the amount of security.
   In the absence of any specific judicial order made by the High Court or by
 . any other Court.. the amount of Rs. 5,000 which was deposited by defendant-
   judgment debtors by way of security cannot be appropriated by the plaintiff-
   decree holders and the same should be returned to the defendant-judgment
C debtors. This amount has nothing to do with the amount of sale and
   consideration.

          Though the parties appearing in person tried to raise other issues and
    controversies, but we are clearly of the opinion that excepting the abovesaid
    two controversies, none else survives for decision and cannot be permitted to.
D   be raised at this belated stage of litigation.

          The appeals are disposed of in tern1s of the following directions:-

            (l)(a) The Executing Court shall, after going through the record of the
                 case and after affording the parties an opportunity of hearing,
E                decide upon the correctness of the map filed by the plaintiff-
                 decree holders during the execution proceedings and presently
                 forming part of the Court sale deed dated 23. 12.1998. If the
                  Executing Court finds that the map forming part of the sale deed
                  is not a correct map or needs to be rectified either wholly or in
                  part, that shall be done and the.map correctly drawn up under the
F                 orders of the court shall then form part of the sale deed. The
                  necessary deed of rectification shall be executed and registered
                  underthe orders of the court. In that eventuality, the deed of sale
                  dated 23 .12.1998 shall take effect as rectified under the orders of
                  the Executing Court.
G         . (b) Thereafter possession over the property equivalent to 8 kathas of
                land as described in the sale deed executed in execution of the
                decree and as rectified in the event of an occasion arising for the
                purpose, shall be delivered by the judgment-debtors to the decree
                holders, if necessary through warrant of delivery of possession.
H           (c)   It would be in the discretion of the Executing Court to take such
                      PRA TIBHA SINGH v. S.D. PRASAD                       415
             steps as may be necessary for fixing the identity of the property.    A
             The Executing Court 1nay take assistance fro1n the previOus
             documents of title, the Revenue Records and/or may have a survey
             carried out by appointing a competent Commission. Nevertheless,
             the Court shall see that the decree holder gets the property as per
             agreement to sell as and decreed.
                                                                                   B
        (ii) The amount of Rs .. 5,000 (Rupees five thousand only) shall be
             deposited by the decree holders for payment to the judgment-
             debiors within such time as may be appointed by the Executing
             Court.

        (iii) The direction numbers (i) and (ii) abovesaid are independent of      C
              each other and not interdependent. Each party must carry out its
              own obligation without insisting on compliance. by the other as
              a condition precedent.

        (iv) In view of the delay that has already taken place, it is directed
             that the hearing of the execution shall be expedited and concluded    D
             as early as possible, preferably within a period of four months
             from the date of communication of this order.

       In view of the above orders, no orders are called for on I.As. 9 and 10.

       The appeals stand disposed of. No orders as to the costs.
                                                                                   E
R.P.                                                     Appeals disposed of.