Manoharan Vs. S.P. Chohkalingam Chettiyar - Court Judgment

SooperKanoon Citationsooperkanoon.com/1190765
CourtChennai Madurai High Court
Decided OnJun-06-2016
Case NumberC.R.P (MD)No. 1447 of 2008(NPD) & M.P.(MD).No. 2 of 2008
JudgeThe Honourable Ms. Justice V.M. Velumani
AppellantManoharan
RespondentS.P. Chohkalingam Chettiyar
Excerpt:
(prayer: this civil revision petition is filed under article 227 of the constitution of india, against the fair and decretal order, dated 15.09.2005, made in e.a.no.278 of 2003 in e.p.no.77 of 2001 in o.s.no.83 of 1988 on the file of the sub court, pudukkottai.) 1. this civil revision petition is filed, against the fair and decretal order, dated 15.09.2005, made in e.a.no.278 of 2003 in e.p.no.77 of 2001 in o.s.no.83 of 1988. 2. the petitioner is the defendant and the respondent is the plaintiff in the suit. the respondent filed the suit in o.s.no.83 of 1988, for recovery of money. the said suit was decreed on 19.01.1990. 3. the respondent/plaintiff obtained decree on 19.01.1990 against the petitioner for recovery of money. the respondent filed e.p.no.77 of 2001 for arrest and detainment of the petitioner in civil prison. according to the respondent, he could not execute the warrant of arrest and therefore he filed e.a.no.278 of 2003, for amendment of the sl.no.10 in the ep, to include the prayer for attachment and sale of the property belonging to the petitioner. the petitioner filed objection memo, denying various allegations made by the respondent and denied his liability to pay any amount to the respondent and also contended that execution petition can not be amended as per order 6 rule 17 c.p.c. the learned judge, by order, dated 15.09.2005 allowed the amendment application. against that order, present civil revision petition is filed. 4. the learned counsel for the petitioner contended that the learned judge failed to consider the nature and scope of the e.a. no.278 of 2003, filed by the petition in proper perspective and on erroneous consideration, allowed the said application. the learned judge failed to see that execution petition is not in continuation of the suit and amendment of execution petition is not maintainable. order 6 rule 17 deals with amendment of pleadings, which means amendment of the plaint and written statement only, and not execution petition. the amendment sought for is barred by limitation as the decree was passed on 19.01.1990 and the petition to amend the ep was filed after 15 years. the respondent has not given any reason for amendment. 5. the learned counsel for the petitioner relied on the judgment in jayaraj v. chockalingam chettiar, reported in 2015(3) mwn(civil) 88 wherein in paragraph nos. 2 and 19, it has been held as follows: 2. ------- the interlocutory order is challenged by the petitioner primarily on the ground that the executing court has no power to direct amendment of execution petition. 19. in sabitri bala v. alak ranjan, air 1980 249 (cal.), a learned judge of calcutta high court held that in case the amendment would completely change the nature and character of the execution application and it was not one of those amendments, which was of a technical in nature, such amendments are not permissible. therefore, it is clear that amendment of execution petition is the rule, unless it is demonstrated that on account of amendment, the very execution petition would undergo a sea change or otherwise, it would change the very nature and character of the execution proceedings. 6. the learned counsel appearing for the respondent contended that the respondent filed e.p.no.77 of 2011, for arrest and detention of the petitioner in civil prison. the petitioner evaded the execution of warrant of arrest and therefore, the petitioner filed e.a. no.278 of 2003 for amendment to attach the properties belonging to the petitioner for realising the amount as per the decree. the decree was passed on 19.01.1990 and till date, the respondent is unable to realise the decretal amount. the petitioner is having properties and in the interest of justice, ep must be amended to attach and sell the property of the petitioner. as per sections 151 and 153 cpc., courts have ample power to amend ep to do justice. the learned judge considered all the materials and provisions of cpc and allowed the application. the said order is valid. 7. the learned counsel for the respondent relied on the very same judgment, wherein in paragraph nos.,8,9 and 10, it has been held as follows: 8. section 151 of the code of civil procedure, 1908, saves the power of the court to make such orders as may be necessary for the ends of justice. similarly, section 153 of the code of civil procedure, 1908, gives general power to the civil court to amend any defect or error in any proceeding in a suit. the word used is "any proceeding in a suit". it would, therefore, include even an execution petition. 9. the legislature is not expected to incorporate provisions to meet the contingencies that would arise in future. when an unprovided contingency arises and the civil court is satisfied that to render justice, technicality should not come in the way, the court can take recourse to sections 151 and 153 of the code of civil procedure, 1908, to tackle such situation. 10. in case amendment of execution petition is not permitted, it would cause substantial prejudice to the decree holder. in case the decree holder, as in the present case, initially asked the executing court to arrest and put the judgment debtor in civil prison for realization of the amount and if it is made out subsequently that he is having property and it would be better to attach it for realization of the amount, he should be permitted to amend the execution petition, as otherwise, it would result in injustice. 8. heard the learned counsel appearing on either side and perused the materials available on record. 9. the contention of the learned counsel for the petitioner is that the execution petition cannot be amended, as it is not pleading as contemplated under order 6 rule 17 c.p.c. and relied on paras 2 and 19 of the judgement referred to above. on the other hand, the learned counsel for respondent relied on paras 8,9 and 10 of the very same judgment and contended that in the interest of justice an execution petition can be amended by invoking sections 151 and 153 cpc. 10. sections 151 and 153 of c.p.c. reads as follows: 151. saving of inherent powers of court. nothing in this code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 153. general power to amend. the court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made of the purpose of determining the real question or issue raised by or depending on such proceeding. 11. in the judgment referred to above, the learned judge of this court held that execution petition is not in the nature of a pleading and as such, strictly, the provisions of order 6 rule 17 are not applicable , but the learned judge held that the execution petition can be amended as per sections 151 and 153 c.p.c. the learned judge also held that section 153 of the code of civil procedure, 1908, gives general power to the civil court to amend any defect or error in any proceeding in a suit. 12. considering sections 151 and 153 c.p.c., the learned judge has held that the word used in any proceedings in a suit , it would therefore include in execution petition also. the learned judge considering the following judgments in a.c.sanyal v. r.m.moitra, reported in 1975(79)cwn546, in mahadev goving gharge v. special land acquisition officer, reported in 2011(4)ctc620(sc), inr.n.jadi and brothers v. subhashchandra, reported in 2007(4)ctc326(sc), in rohini kumar roy v. krishna prasad, reported in 1935(39)cwn1144 and in sabitri bala v. alak ranjan, reported in air1980cal.249, held that in the interest of justice, amendment in execution petition is permissible. in the judgment referred to by the learned counsel for the petitioner and the respondent also, decree holder initially filed ep for arrest and detention of the judgement debtor in civil prison. subsequently, he filed application for amendment of ep for attachment and sale of the property belonging to the judgement debtor. in the circumstances, the ratio in the judgment reported in 2015 (3) mwn (civil) 88 is squarely applicable to the facts of the present case. 13. the learned sub judge, pudukkottai has considered all the materials on record as well the provisions of law and allowed the application for amendment. there is no irregularity, infirmity or illegality warranting interference by this court. the civil revision petition is devoid of merit and is liable to be dismissed. 14. accordingly, this civil revision petition is dismissed. no costs. consequently, connected miscellaneous petition is closed.
Judgment:

(Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decretal order, dated 15.09.2005, made in E.A.No.278 of 2003 in E.P.No.77 of 2001 in O.S.No.83 of 1988 on the file of the Sub Court, Pudukkottai.)

1. This Civil Revision Petition is filed, against the fair and decretal order, dated 15.09.2005, made in E.A.No.278 of 2003 in E.P.No.77 of 2001 in O.S.No.83 of 1988.

2. The petitioner is the defendant and the respondent is the plaintiff in the suit. The respondent filed the suit in O.S.No.83 of 1988, for recovery of money. The said suit was decreed on 19.01.1990.

3. The respondent/plaintiff obtained decree on 19.01.1990 against the petitioner for recovery of money. The respondent filed E.P.No.77 of 2001 for arrest and detainment of the petitioner in civil prison. According to the respondent, he could not execute the warrant of arrest and therefore he filed E.A.No.278 of 2003, for amendment of the Sl.No.10 in the EP, to include the prayer for attachment and sale of the property belonging to the petitioner. The petitioner filed objection memo, denying various allegations made by the respondent and denied his liability to pay any amount to the respondent and also contended that execution petition can not be amended as per Order 6 Rule 17 C.P.C. The learned Judge, by order, dated 15.09.2005 allowed the amendment application. Against that order, present Civil Revision Petition is filed.

4. The learned counsel for the petitioner contended that the learned Judge failed to consider the nature and scope of the E.A. No.278 of 2003, filed by the petition in proper perspective and on erroneous consideration, allowed the said application. The learned Judge failed to see that execution petition is not in continuation of the suit and amendment of execution petition is not maintainable. Order 6 Rule 17 deals with amendment of pleadings, which means amendment of the plaint and written statement only, and not execution petition. The amendment sought for is barred by limitation as the decree was passed on 19.01.1990 and the petition to amend the EP was filed after 15 years. The respondent has not given any reason for amendment.

5. The learned counsel for the petitioner relied on the judgment in Jayaraj v. Chockalingam Chettiar, reported in 2015(3) MWN(Civil) 88 wherein in paragraph Nos. 2 and 19, it has been held as follows:

2. ------- The Interlocutory Order is challenged by the Petitioner primarily on the ground that the Executing Court has no power to direct amendment of Execution Petition.

19. In Sabitri Bala v. Alak Ranjan, AIR 1980 249 (Cal.), a learned Judge of Calcutta High Court held that in case the amendment would completely change the nature and character of the Execution Application and it was not one of those amendments, which was of a technical in nature, such amendments are not permissible. Therefore, it is clear that amendment of Execution Petition is the rule, unless it is demonstrated that on account of amendment, the very Execution Petition would undergo a sea change or otherwise, it would change the very nature and character of the Execution Proceedings.

6. The learned counsel appearing for the respondent contended that the respondent filed E.P.No.77 of 2011, for arrest and detention of the petitioner in civil prison. The petitioner evaded the execution of warrant of arrest and therefore, the petitioner filed E.A. No.278 of 2003 for amendment to attach the properties belonging to the petitioner for realising the amount as per the decree. The decree was passed on 19.01.1990 and till date, the respondent is unable to realise the decretal amount. The petitioner is having properties and in the interest of justice, EP must be amended to attach and sell the property of the petitioner. As per Sections 151 and 153 CPC., Courts have ample power to amend EP to do justice. The learned Judge considered all the materials and provisions of CPC and allowed the application. The said order is valid.

7. The learned counsel for the respondent relied on the very same judgment, wherein in paragraph Nos.,8,9 and 10, it has been held as follows:

8. Section 151 of the Code of Civil Procedure, 1908, saves the power of the Court to make such orders as may be necessary for the ends of justice. Similarly, Section 153 of the Code of Civil Procedure, 1908, gives general power to the Civil Court to amend any defect or error in any proceeding in a suit. The word used is "any proceeding in a suit". It would, therefore, include even an Execution Petition.

9. The Legislature is not expected to incorporate provisions to meet the contingencies that would arise in future. When an unprovided contingency arises and the Civil Court is satisfied that to render justice, technicality should not come in the way, the Court can take recourse to Sections 151 and 153 of the Code of Civil Procedure, 1908, to tackle such situation.

10. In case amendment of Execution Petition is not permitted, it would cause substantial prejudice to the decree holder. In case the decree holder, as in the present case, initially asked the Executing Court to arrest and put the judgment debtor in civil prison for realization of the amount and if it is made out subsequently that he is having property and it would be better to attach it for realization of the amount, he should be permitted to amend the Execution Petition, as otherwise, it would result in injustice.

8. Heard the learned counsel appearing on either side and perused the materials available on record.

9. The contention of the learned counsel for the petitioner is that the execution petition cannot be amended, as it is not pleading as contemplated under Order 6 Rule 17 C.P.C. and relied on paras 2 and 19 of the judgement referred to above. On the other hand, the learned counsel for respondent relied on paras 8,9 and 10 of the very same judgment and contended that in the interest of justice an execution petition can be amended by invoking Sections 151 and 153 CPC.

10. Sections 151 and 153 of C.P.C. reads as follows:

151. Saving of inherent powers of Court.

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

153. General power to amend.

The Court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made of the purpose of determining the real question or issue raised by or depending on such proceeding.

11. In the judgment referred to above, the learned Judge of this Court held that Execution Petition is not in the nature of a pleading and as such, strictly, the provisions of Order 6 Rule 17 are not applicable , but the learned Judge held that the execution petition can be amended as per Sections 151 and 153 C.P.C. The learned Judge also held that Section 153 of the Code of Civil Procedure, 1908, gives general power to the Civil Court to amend any defect or error in any proceeding in a suit.

12. Considering Sections 151 and 153 C.P.C., the learned Judge has held that the word used in any proceedings in a suit , it would therefore include in execution petition also. The learned Judge considering the following judgments in A.C.Sanyal v. R.M.Moitra, reported in 1975(79)CWN546, in Mahadev Goving Gharge v. Special Land Acquisition Officer, reported in 2011(4)CTC620(SC), inR.N.Jadi and Brothers v. Subhashchandra, reported in 2007(4)CTC326(SC), in Rohini Kumar Roy v. Krishna Prasad, reported in 1935(39)CWN1144 and in Sabitri Bala v. Alak Ranjan, reported in AIR1980Cal.249, held that in the interest of justice, amendment in execution petition is permissible. In the judgment referred to by the learned counsel for the petitioner and the respondent also, decree holder initially filed EP for arrest and detention of the judgement debtor in civil prison. Subsequently, he filed application for amendment of EP for attachment and sale of the property belonging to the Judgement Debtor. In the circumstances, the ratio in the judgment reported in 2015 (3) MWN (Civil) 88 is squarely applicable to the facts of the present case.

13. The learned Sub Judge, Pudukkottai has considered all the materials on record as well the provisions of Law and allowed the Application for amendment. There is no irregularity, infirmity or illegality warranting interference by this Court. The Civil Revision Petition is devoid of merit and is liable to be dismissed.

14. Accordingly, this Civil Revision Petition is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.