Nagaraju, and ors.Vs. K. Rami Reddy, and ors. - Court Judgment

Excerpt:
[p. sathasivam ; h.l. gokhale, j.j.] - the indian penal code, 1860 section 302 - punishment for murder -- sunil yadav s/o musafir yadav was instituted. sunil yadav was instituted. on 29.04.1997, about 5:30 a.m., at nawada sadar hospital, si anil kumar gupta recorded the statement of sunil yadav s/o musafir yadav and on the basis of his statement fir no 12/97 was registered with govindpur p.s under sections 147, 148, 149, 323, 324, 307, 447 ipc against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, suresh yadav, umesh yadav, muni yadav and naresh yadav. the charge-sheet bearing no. 12/97 was submitted in fir no. 11/97 p.s. govindpur, on 30.06.1997 against brahamdeo yadav, sunil yadav, darogi mahto, maho yadav, paro mahto, kuldeep yadav, sudhir yadav, bale yadav, shivan yadav and suraj yadav and sunil yadav who was later instituted. the charge sheet bearing no. 36/97 was also submitted in fir no. 12/97 p.s. govindpur, on 17.12.1997 against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, umesh yadav, muni yadav and naresh yadav except suresh yadav s/o kesho yadav as he had died. informant-naresh yadav (pw-9) informant-sunil yadav (a9 in fir 11/97) brahmdeo yadav, darogi mahto, sunil s/o bale yadav, maho yadav, kuldeep yadav, bale yadav, suraj yadav, shiv nandan yadav, sunil yadav s/o musafir yadav, sudhir yadav and paro mahto, total 11 persons forming a group came there and surrounded them. brahmdeo yadav, sunil yadav, darogi mahto and maho yadav were armed with rifle. bale yadav, kuldeep yadav, shiv nandan yadav and suraj yadav were armed with gandassa. kuldeep yadav gave gandassa blow to munshi yadav.1. the 1st respondent filed o.s.no.118 of 2001 against the petitioners in the court of junior civil judge, yemmiganur, for recovery of certain amount. after the decree became final, the 1st respondent filed e.p.no.98 of 2002. he prayed for sale of an item of landed property, in sy.no.529 of dharmapuram. the description of the property was furnished in the e.p., as well as the sale proclamation. the property was attached and thereafter, it was brought to sale. the 2nd respondent emerged as the successful bidder. a sale certificate, delivery warrant and delivery receipt were issued in favour of the 2nd respondent, by the executing court. 2. the respondents filed e.a.no.77 of 2008, under section 153 and order vi rule 17, read with section 151 c.p.c., with a prayer to amend the schedule in the sale proclamation, sale certificate, delivery warrant and delivery receipt, to incorporate the name of 'halaharvi' in the place of 'dharmapuram'. they pleaded that due to inadvertence, the name of the village was mentioned as dharmapuram, though the description of the property suits with the one, at halaharvi. according to them, the petitioners did not have any right over the property at dharmapuram, and that the village, halaharvi is situated just at 2 k.m. from dharmapuram. 3. the 3rd respondent herein filed a verified petition, opposing the e.a.no.77 of 2008. he took the plea that once an item of property at dharmapuram village was attached in the year 2002, brought to sale in the year 2006, and possession thereof was delivered, it is just impermissible for the petitioners to mention the name of a different village. he has also raised an objection as to the maintainability of the e.a. 4. sri o. manohar reddy, learned counsel for the petitioners submits that, with the closure of the e.p., the executing court virtually becomes functus officio, and it has no jurisdiction to entertain the e.a., for correction, that too, of important particulars of the property. he contends that the 1st respondent got attached specific item of landed property, situated at dharmapuram, and once that very property was brought to sale, and possession was delivered, it is totally impermissible for him to change the particulars, to enable the 2nd respondent to lay claim for an item of property in a different village, altogether. he submits that the view taken by the executing court is erroneous. 5. sri k. jagan mohan reddy, learned counsel for the respondents, on the other hand submits that there is no property with sy.no.529, and dimensions, as mentioned in the schedule, at dharmapuram and due to inadvertence; the name of the village halaharvi was not mentioned. he contends that the parties to the e.p. proceeded on the assumption that the property with halaharvi village, and the amendment sought is innocuous and technical in nature. he submits that the executing court has taken a pragmatic view, and the rights that have accrued to the respondents cannot be taken away on the basis of a typographical mistake. 6. the 1st respondent obtained a decree against the petitioners and filed e.p for execution thereof. a specific item of property namely, land in sy.no.529 of dharmapuram village was got attached and thereafter brought to sale. the 2nd respondent emerged as the highest bidder, he paid the consideration, and possession of the land is said to have been delivered to him. the record is silent as to whether any sale deed was executed, at all. 7. the schedule of the property was described consistently in all the proceedings, viz., sale proclamation, sale certificate, delivery warrant, delivery receipt, etc., mentioning the name of the village as 'dharmapuram'. two years after the sale was effected and possession was delivered, the respondents came forward with the application, seeking amendment of the schedule. 8. a serious doubt arises, as to whether it was competent for the executing court to entertain an application for amendment, once e.p. was closed. the question of seeking amendment by filing an application under rule 17 of order vi c.p.c., whether in a suit, or in an execution petition, after the proceedings are terminated; does not arise. it is only when the suit or execution petition is pending before a court, that an application for amendment can be made. to that extent, the e.a was not maintainable. 9. there may be cases, where a typographical or clerical error has crept into the judgment or order. the necessity, to seek the correction thereof, by filing an application under section 153 c.p.c., arises, mostly after the proceedings are terminated. it is not necessary that the proceedings must be pending before a court for an application filed under section 153. however, the relief claimed under section 153 should be such that, it does not bring about any different, or new situation, altogether. whether the error is typographical or clerical, the corrected version must ultimately accord with the particulars in the proceedings. in the name of seeking correction of clerical or typographical errors, a party cannot seek substitution of new facts and figures. therefore, though the relief under section 153 c.p.c. was available to the respondents, even after closure of the e.p., the nature of relief claimed by them does not fit into that provision. 10. on merits also, the relief claimed by the respondents was totally untenable. while seeking attachment of an item of immovable property, the 1st respondent ought to have been careful in furnishing the particulars. based upon his own knowledge or the particulars furnished by any other agency, he wanted the land in sy.no.529 of dharmapuram village, to be attached, and thereafter it was brought to sale. obviously, because the petitioners do not have any right or interest vis--vis the said land, virtually they did not offer any resistance to the e.p. in fact, anybody in their place would be well-advised, to just(sic) keep quiet, when an item of property which does not belong to them is brought to sale. the 2nd respondent was also required to be very diligent in knowing, as to which item of property, he is proposing to purchase. the very fact that he offered his bid, discloses that it was for a land in sy.no.529 of dharmapuram village. the record discloses that the possession of that land was also delivered to the 2nd respondent. the matter should have ended at that. 11. once the 2nd respondent has purchased a particular item of property, that too, in a court auction, it is not open to him to claim the rights, vis--vis the land in different item of property, that too in a different village. the fact that sy.no.529 does not exist in dharmapuram villag; does not make any difference. even if it is a private sale, a purchaser cannot seek substitution of boundaries or particulars, unless the vendor agrees for it, and as long as it does not affect the rights of third parties. an altogether different person is the owner of the land in sy.no.529 of dharmapuram village. 12. he is not the judgment-debtor in the decree. any sale of his property is it, by a court or by a third party, does not bind him. in case the 1st respondent intends to proceed against the land in sy.no.529 of halaharvi, he has to institute separate proceedings. the sale affected against a particular item of property, cannot be treated as the one, against another item. viewed from any angle, the order passed by the trial court cannot be sustained in law. the c.r.p is accordingly allowed. there shall be no order as to costs.

Judgment:
1. The 1st respondent filed O.S.No.118 of 2001 against the petitioners in the Court of Junior Civil Judge, Yemmiganur, for recovery of certain amount. After the decree became final, the 1st respondent filed E.P.No.98 of 2002. He prayed for sale of an item of landed property, in Sy.No.529 of Dharmapuram. The description of the property was furnished in the E.P., as well as the sale proclamation. The property was attached and thereafter, it was brought to sale. The 2nd respondent emerged as the successful bidder. A sale certificate, delivery warrant and delivery receipt were issued in favour of the 2nd respondent, by the Executing Court.

2. The respondents filed E.A.No.77 of 2008, under Section 153 and Order VI Rule 17, read with Section 151 C.P.C., with a prayer to amend the schedule in the sale proclamation, sale certificate, delivery warrant and delivery receipt, to incorporate the name of 'Halaharvi' in the place of 'Dharmapuram'. They pleaded that due to inadvertence, the name of the Village was mentioned as Dharmapuram, though the description of the property suits with the one, at Halaharvi. According to them, the petitioners did not have any right over the property at Dharmapuram, and that the village, Halaharvi is situated just at 2 K.M. from Dharmapuram.

3. The 3rd respondent herein filed a verified petition, opposing the E.A.No.77 of 2008. He took the plea that once an item of property at Dharmapuram Village was attached in the year 2002, brought to sale in the year 2006, and possession thereof was delivered, it is just impermissible for the petitioners to mention the name of a different village. He has also raised an objection as to the maintainability of the E.A.

4. Sri O. Manohar Reddy, learned counsel for the petitioners submits that, with the closure of the E.P., the Executing Court virtually becomes functus officio, and it has no jurisdiction to entertain the E.A., for correction, that too, of important particulars of the property. He contends that the 1st respondent got attached specific item of landed property, situated at Dharmapuram, and once that very property was brought to sale, and possession was delivered, it is totally impermissible for him to change the particulars, to enable the 2nd respondent to lay claim for an item of property in a different village, altogether. He submits that the view taken by the Executing Court is erroneous.

5. Sri K. Jagan Mohan Reddy, learned counsel for the respondents, on the other hand submits that there is no property with Sy.No.529, and dimensions, as mentioned in the schedule, at Dharmapuram and due to inadvertence; the name of the village Halaharvi was not mentioned. He contends that the parties to the E.P. proceeded on the assumption that the property with Halaharvi village, and the amendment sought is innocuous and technical in nature. He submits that the Executing Court has taken a pragmatic view, and the rights that have accrued to the respondents cannot be taken away on the basis of a typographical mistake.

6. The 1st respondent obtained a decree against the petitioners and filed E.P for execution thereof. A specific item of property namely, land in Sy.No.529 of Dharmapuram Village was got attached and thereafter brought to sale. The 2nd respondent emerged as the highest bidder, he paid the consideration, and possession of the land is said to have been delivered to him. The record is silent as to whether any sale deed was executed, at all.

7. The schedule of the property was described consistently in all the proceedings, viz., sale proclamation, sale certificate, delivery warrant, delivery receipt, etc., mentioning the name of the village as 'Dharmapuram'. Two years after the sale was effected and possession was delivered, the respondents came forward with the application, seeking amendment of the schedule.

8. A serious doubt arises, as to whether it was competent for the Executing Court to entertain an application for amendment, once E.P. was closed. The question of seeking amendment by filing an application under Rule 17 of Order VI C.P.C., whether in a suit, or in an execution petition, after the proceedings are terminated; does not arise. It is only when the suit or execution petition is pending before a Court, that an application for amendment can be made. To that extent, the E.A was not maintainable.

9. There may be cases, where a typographical or clerical error has crept into the judgment or order. The necessity, to seek the correction thereof, by filing an application under Section 153 C.P.C., arises, mostly after the proceedings are terminated. It is not necessary that the proceedings must be pending before a Court for an application filed under Section 153. However, the relief claimed under Section 153 should be such that, it does not bring about any different, or new situation, altogether. Whether the error is typographical or clerical, the corrected version must ultimately accord with the particulars in the proceedings. In the name of seeking correction of clerical or typographical errors, a party cannot seek substitution of new facts and figures. Therefore, though the relief under Section 153 C.P.C. was available to the respondents, even after closure of the E.P., the nature of relief claimed by them does not fit into that provision.

10. On merits also, the relief claimed by the respondents was totally untenable. While seeking attachment of an item of immovable property, the 1st respondent ought to have been careful in furnishing the particulars. Based upon his own knowledge or the particulars furnished by any other agency, he wanted the land in Sy.No.529 of Dharmapuram village, to be attached, and thereafter it was brought to sale. Obviously, because the petitioners do not have any right or interest vis--vis the said land, virtually they did not offer any resistance to the E.P. In fact, anybody in their place would be well-advised, to just(SIC) keep quiet, when an item of property which does not belong to them is brought to sale. The 2nd respondent was also required to be very diligent in knowing, as to which item of property, he is proposing to purchase. The very fact that he offered his bid, discloses that it was for a land in Sy.No.529 of Dharmapuram village. The record discloses that the possession of that land was also delivered to the 2nd respondent. The matter should have ended at that.

11. Once the 2nd respondent has purchased a particular item of property, that too, in a Court auction, it is not open to him to claim the rights, vis--vis the land in different item of property, that too in a different village. The fact that Sy.No.529 does not exist in Dharmapuram villag; does not make any difference. Even if it is a private sale, a purchaser cannot seek substitution of boundaries or particulars, unless the vendor agrees for it, and as long as it does not affect the rights of third parties. An altogether different person is the owner of the land in Sy.No.529 of Dharmapuram village.

12. He is not the judgment-debtor in the decree. Any sale of his property is it, by a Court or by a third party, does not bind him. In case the 1st respondent intends to proceed against the land in Sy.No.529 of Halaharvi, he has to institute separate proceedings. The sale affected against a particular item of property, cannot be treated as the one, against another item. Viewed from any angle, the order passed by the trial Court cannot be sustained in law. The C.R.P is accordingly allowed. There shall be no order as to costs.