Narayan Mallick And Another vs Ananta Charan Das And Others
2023 Latest Caselaw 1852 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                CMP No. 19 of 2023
                 Narayan Mallick and another           ....      Petitioners
                                   Mr. Prasanta Kumar Satapathy, Advocate
                                         -versus-
                 Ananta Charan Das and others            ....     Opp. Parties

                          CORAM:
                          JUSTICE K.R. MOHAPATRA
                                      ORDER

Order No.                            28.02.2023
 2.         1.      This matter is taken up through Hybrid mode.

2. Order dated 4th January, 2023 (Annexure-8) passed by learned Civil Judge (Junior Division), 2nd Court, Cuttack in Execution Case No.73 of 2019 is under challenge in this CMP, whereby an application filed for amendment of the execution petition has been allowed.

3. Mr. Satapathy, learned counsel for the Petitioners submits that JDrs. are the Petitioners in this CMP. An application for execution was filed to implement the judgment and decree passed by learned Civil Judge (Junior Division), 2nd Court, Cuttack in CS No.6579 of 2014. Petitioners/JDrs. filed an application under Order VI Rule 17 CPC, which is pending for adjudication. He further submits that assailing the judgment in CS No.6579 of 2014, RFA No.42 of 2019 has also been filed and is pending for adjudication. While the matter stood thus, an application under Order VI Rule 17 CPC was filed by the DHrs/Opposite Party Nos.1 to 3 for amendment of the execution petition. By way of amendment, the DHrs. sought to incorporate a property, which was not there in the schedule of the execution

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petition. Further, a relief of recovery of possession was sought to be introduced although the decree was for permanent injunction. The Petitioners/JDrs. did not file any written objection to the same, but orally objected the prayer for amendment. Learned executing Court without considering the same allowed the application under Order VI Rule 17 CPC and thereby allowed amendment of the execution petition. It is submitted that provision of Order VI Rule 17 CPC is not applicable to the execution proceeding. But inaccurate statement made in the execution petition can be directed by the Court to be corrected for effective execution of the decree. In the instant case, no such situation arises. On the other hand, the Opposite Party No.1 to 3/DHrs. by way of amendment sought to introduce an averment which took place prior to filing of the execution application. These material aspects were lost sight of by learned executing Court while passing the impugned order. He, therefore, prays for setting aside the impugned order.

4. Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of record, it appears that the DHrs./Opposite Party Nos.1 to 3 had filed an application under Order VI Rule 17 CPC for amendment of the execution petition. As rightly submitted by Mr.Satapathy, learned counsel for the Petitioners that the provision under Order VI Rule-17 CPC is not applicable to the execution proceeding, but the power of the Court to direct the DHrs. to correct the inaccurate statement in the execution petition is not restricted. Order XXI Rule 17 CPC clearly provides that the Court can direct the DHr. to correct the inaccurate statement made in the petition for execution for effective execution of the

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decree. True it is that, no defect in the execution proceeding was pointed out by the executing Court at any point of time. But the Court's power is not restricted to give a direction suo motu. It can entertain an application filed by the DHrs. to that effect and pass an order for effective execution of the decree. In the instant case, the DHrs. sought for amendment of the execution petition to introduce a prayer for recovery of possession as after pronouncement of the judgment dated 15th March, 2019, the JDrs./Petitioners allegedly disturbed the possession of the DHrs./Opposite Party Nos.1 to 3 on 25th June, 2019. This being an event after passing of the decree can be incorporated in the petition filed for execution of the decree. There is no legal bar to introduce the same by filing an appropriate application. Further, the suit property was inaccurately described in the execution petition. Thus, by way of amendment, DHrs./ Opposite Party Nos.1 to 3 sought to amend the schedule of the petition giving correct description of the suit property.

5. In view of the above, I find no infirmity in the impugned order under Anenxure-1. As such, learned executing Court has committed no error in allowing the application for amendment of the execution petition.

Accordingly, the CMP being devoid of merit stands dismissed.

(K.R. Mohapatra) Judge s.s.satapathy