S.47 CPC | Executing Court Can Correct Clerical Misdescription Of Suit Property In Decree: Allahabad High Court
The Allahabad High Court has held that an executing court can correct a clerical or typographical misdescription of the suit property in a decree in exercise of its powers under Section 47 of the Code of Civil Procedure. It held that such correction is not confined to the court which passed the decree.
Justice Manish Kumar Nigam held,
“Where the terms of the decree are clear and unambiguous, the effect must be given to such terms at the same time, however, wherever the decree is vague or ambiguous, it is competent to the executing court to go behind the decree and look into the judgment, even the pleadings and to get assisted in order to have the ambiguity dispelled. Section 47 of the C.P.C. would not be a bar to such course being adopted.”
Pooran Lal, the predecessor of the respondents, had sued Maya Devi, the predecessor of the petitioners, for specific performance of an agreement to sell dated 31.12.1967. After multiple rounds of litigation between Trial Court and Appellate Court, the suit was decreed by the first appellate court in 1975 with a direction to execute the sale deed of the disputed house. The second appeal was dismissed by the High Court in 2006. The decree-holders had filed execution in 1994.
In execution, the draft sale deed described the property as situated at Mohalla-Siklapur, whereas the decree described it as situated at Mohalla-Gulab Nagar. The decree-holders applied to correct the description in the records of the execution case and in the decree from Gulab Nagar to Siklapur, stating that the clerk who prepared the decree had committed the error.
The executing court eventually allowed the application and amended the decree. The revisional court affirmed it. The judgment-debtors challenged these orders before the High Court under Article 227 of the Constitution of India.
The Court held,
“Section 47 enjoins the executing court to decide all questions relating to execution, discharge or satisfaction of the decree. Section 47(1) is mandatory, the words of the section are peremptory and if the case is covered by this provision, the Court is bound to decide it in execution and it has no discretion to refer the party to a separate suit. The word 'determine' conveys that the questions contemplated by Section 47 should be finally disposed of. The questions of the fact as well as of the law can be decided by the court under Section 47 C.P.C.”
The Court held that a dispute as to the description or identity of the property, and whether a particular property is covered by the decree, is a question relating to the execution, discharge or satisfaction of the decree which falls within Section 47. It held that the same cannot be relegated to a separate suit.
While an executing court cannot ordinarily go behind the decree, the Court held that where the decree is vague or ambiguous it can look into the judgment and the pleadings to remove the ambiguity.
On the facts, the Court found that the parties were clear about the identity of the property. It observed that Mohalla-Gulab Nagar had been mentioned at the foot of the plaint instead of Mohalla-Siklapur through a typographical error, while the body of the plaint described the house as being at Siklapur, which matched the description provided in the sale deed. Since the defendant had never disputed that the property was at Siklapur until the stage of execution, the Court held that he could not be said to have been misled.
“The mistake committed by the respondents was of clerical nature which can be corrected by applying provisions of Section 152 of the C.P.C or in exercise of power under Section 47 C.P.C while determining the questions relating to execution, discharge or satisfaction of the decree by the executing court itself.”
Rejecting petitioner's reliance on doctrine of merger, the Court held that the question was not one of merger of the decree but of the power of the executing court to correct it under Section 47. It observed that while a court passing a decree can always correct it, that did not mean the executing court was powerless to correct a clerical error.
It relied on the decision of the Supreme Court in Pratibha Singh v. Shanti Devi Prasad, wherein it was held that a successful plaintiff should not be deprived of the fruits of the decree on account of an accidental slip. It held that recourse under Section 152 or Section 47 of the Code was available.
“In this case, the slip ought to be said to be accidental and typographical only. The plaintiffs have fought from the trial court to High Court. They could not be deprived of fruits of the decree for such inadvertence. The executing court has committed no error in correcting the description of the property in the decree.”
Accordingly, the petitions were dismissed.
Case Title: Santosh and 4 others v. Smt. Asha Rani and 7 others
Counsel for Petitioner(s) :- Bhanu Bhushan Jauhari, Rishi Bhushan Jauhari
Counsel for Respondent(s) :- Rama Goel Bansal, Shalini Goel