1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9004 OF 2009 Mr. Peter D’Souza, (Since deceased through his legal representatives & heirs - 1) Mrs. Julie D’Souza & Ors. .. Petitioners ( Decree holders/Plaintiffs) Vs Rita Pereira, Wife of Paul Pereira, since deceased through her legal representatives & heirs - 1) Margaret Pereira & Ors. .. Respondents ( Judgment Debtors/Defendants ) -- Shri K.K. Malpathak for the Petitioners. Shri S.D. Patil for Respondents -- CORAM : A.S.OKA, J. DATE : 24TH FEBRUARY, 2010 P.C: . On the last date, the Petition was taken up for final disposal at the admission stage. This Petition arises out of the execution proceedings. The Petitioners are the legal representatives of the Original Plaintiff/Decree holder and the Respondents are the legal representatives of the original Defendant-Judgment Debtor. A suit filed by the predecessor of the Petitioners for possession was decreed by the Trial Court and the execution application was filed by the Petitioners. During the pendency of the 2 execution application, an application was made by the Petitioners for correcting description of the suit property. According to the Petitioners, the house forming part of the suit property had undergone a change of number. The said application was allowed by the Executing Court. 2. A reply was filed by the Respondents to the execution application. In the reply, it was contended that there were two houses standing on the land bearing Survey No.293. The house numbers were 253 and 254. It is contended that the Respondents were residing in House No. 253 and not in House No.254. An application was made by the Respondents seeking permission from the Executing Court to lead oral and documentary evidence. The said application was contested by the Petitioners. By the impugned order, the said application has been allowed. 3. The learned counsel appearing for the Petitioners has invited my attention to the plaint and the Written Statement in the suit. He pointed out that no dispute was raised by the Respondents during the pendency of the suit as regards the description of the suit property. He submitted that it was never the case made out by the Respondents that there were two houses on the suit property. He pointed out that in the Plaint, there is a specific reference to the House No.254 and the Respondents in their written statement did not come out with a case that they were not residing in House No.254 but they were allegedly in possession of the House No.253. He, therefore, submitted that the 3 Respondents cannot be allowed to go behind the decree and lead evidence. The learned counsel appearing for the Respondents submitted that the case made out by the Respondents is that the House No.254 which forms part of the suit property is not in existence and the House No.253 is in existence which is in possession of the Respondents and which is not the subject matter of the decree. He, therefore, submitted that in view of Section 47 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ), the Respondents were entitled to lead evidence as all the questions will have to be determined by the Executing Court. He invited my attention to the application for amendment of the execution application made by the Petitioners. He pointed out that by the said application, the Petitioners sought permission to amend the description of the House No.254 by making addition to the schedule to the execution application by stating therein that the House No.254 has been re-numbered as House No.623 by the Mira Bhayander Municipal Corporation. He invited my attention to the finding recorded by the learned Trial Court while allowing the said application. He pointed out that the learned Trial Judge found that House No.254 was not in existence but House No.253 is in existence and it corresponds to property No.623. He submitted that in the circumstances, the Respondents were entitled to adduce the evidence. 4. I have carefully considered the submissions. The Petitioners have described the suit property in the schedule annexed to the Plaint which is marked as Exhibit- A. Clause (1) of the schedule of the suit 4 property describes the house property being House No.254 and the Clause (2) describes the land. Clauses (1) and (2) read thus:- “(1) A Dwelling House situate at Uttan, Taluka and District Thane, admeasuring 41’ x 22’ and bearing Uttan Gram Panchayat House No.254 and bounded on the East by the open plot of land also hereby sold and transferred to the purchaser and more fully described in (2) below, and beyond the said open plot field belonging to Shri Kaitan Inas Ludrik, on the West by a Public street on the South by a House belonging to Shri Faranha Antony and on the North by the House belonging to Mrs. Roji Pereira.” 2. An open plot of land bearing Survey No.293, Hissa No.16, admeasuring 2.1/2 Gunthas, situate at Uttan Taluka and District Thane and is adjoining to the Dwelling House also hereby conveyed to the Purchaser and described in (1) above and which is bounded by – On the East by the field belonging to Shri Kaitan Inas Ludrik, on the West by the Dwelling House described in (1) above, on the South by the House belonging to Shri Faranaha Anton, on the North by the House belonging to Mrs. Roji Pereira. This plot is enclosed by a compound wall.” 5. In Paragraph 1 of the Plaint, it is asserted that the house is situated on the land bearing Survey No.293, Hissa No.16 situated at Village Uttan, Taluka and District Thane. Thus, apart from claiming relief of possession of the open plot of land bearing Survey No.293, Hissa No.16, the Petitioners claimed possession of Gram Panchayat House No.254 which is situated on the land bearing Survey No.293, Hissa No.16. A Written Statement was filed by the Respondents. Paragraph 1 of the Written Statement reads thus:- “1. With regards to Para 1 of the Plaint : - 5 The particulars of House property consisting of one open plot together with one house standing thereon are true and correct. Rest of the contents are denied and not admitted by these Defendants. The Plaintiff be put to strict proof thereof.” 6. Thus, the description of the suit property was not disputed by the Respondents. Neither in the Written Statement nor at the time of hearing of the suit, the Respondents have come out with the case that there were two houses situated on the land bearing City Survey No.293, Hissa No.16. The Respondents have not at all pleaded that the apart from the House No.254 which was admittedly in existence, there was any other house in existence on the land bearing Survey No.293, Hissa No.16. The said case is made out for the first time by way of a reply to the application for execution. In Paragraph 3 of the reply, the Respondents have stated thus:- “3. The judgment debtors without prejudice to the above said contents submit that the suit premises/property i.e. House Number referred in proceeding is House No.254. While the previous Grampanchayat records clearly shows that the judgment debtors are residing in House No.253 and in the said house the water connection is provided to the judgment debtor named Smt. Rita Pareira. The decree holder failed or suppressed the facts that there are two Houses numbered as House No.253 and 254 standing on the land bearing Survey No.293, House No.16 and even today the said land is shown in the names of Peter Herman, Rita Paul Pareira, Jatin Kaitan D’Souza, Phellia D’souza as legal heirs of late Shri Eraman Phillip Sour vide Mutation Entry No.3172. The judgment debtors submit that there is no partition of joint family properties owned by legal heirs of late Shri Eraman P. Sur.” 6 8. The Petitioners were permitted to carry out amendment to the schedule to the application for execution for incorporating the fact that the Grampanchayat House No.254 has been re-numbered as House No.623 by the Mira Bhayandar Municipal Corporation. 9. The impugned order has been passed on an application at Exhibit-36 filed by the Respondents. In the first paragraph of the application, the Respondents have pleaded that it is their contention that there are two houses bearing House Nos.253 and 254 on the land bearing Survey No.293, Hissa No.16. In Paragraph 1 of the said application, the Respondents have come out with a case that they are residing in House No. 257. Paragraph 1 of the said application at Exhibit – 36 reads thus:- “1. The judgment debtors submit that they have given applications dated 16.04.2005 stating therein that the suit house i.e. House No.254 is not in existence at all. The judgment debtors have also pleaded that there were two houses i.e. House No.253 and 254 on S. No.293, Hissa No.16, situated at Village Uttan, Taluka and District Thane and the judgment debtors are residing in House No.257 ( New No.T-623).” 10. It must be stated here that the application for amendment of the execution application was contested by the Respondents by denying that the suit House No.254 has been re-numbered as House No.623. It was contended that House No.623 is the house number in respect of House No. 253 which is not the subject matter of the decree. 7 11. Clause (2) of the operative part of the impugned order reads thus:- “2. Judgment Debtors are at liberty to adduce oral evidence in support of their objection with clear understanding that on next date Judgment Debtor should proceed with the evidence if any, failing which necessary order will be passed.” 12. Thus, it appears that the Respondents have been permitted to lead evidence in support of their contention that there were two houses in existence on the land bearing City Survey No.293, Hissa No.16. As narrated earlier, the contention of the Respondents is that there were two houses bearing Nos.253 and 254 in existence on the land bearing Survey No.293, Hissa No.16 and that the House No.254 has been demolished. The Respondents are claiming to be in possession of House No.253. It is well settled law that the Executing Court cannot go behind the decree. The Respondents are the Defendants-Judgment Debtors and they are not strangers to the decree. Grant of permission to the Respondents to lead evidence for establishing their case that there were two houses bearing Nos. 253 and 254 on the land bearing City Survey No.293, Hissa No.16 will amount to permitting the Respondents to go behind the decree. As pointed out earlier, while dealing with the application for amendment made by the Petitioners, the Respondents have contended that House No.623 has been assigned to House No.253 which is not subject matter of the decree. Neither in the Written Statement nor during the course of recording of evidence in the suit that the Respondents came out with the case that there 8 were two houses in existence. There is no dispute as regards the description of the suit property. If at all the evidence is to be permitted to be adduced, the same will have to be confined to the question whether House No.623 in the records of the Mira Bhayandar Municipal Corporation is the Gram Panchayat House No.254 which is described in Clause (1) of the schedule to the Plaint. The Respondents cannot be permitted to lead evidence in support of their case that there were two houses. It must be stated here that the Respondents have not claimed any right, title or interest in respect of the open plot of land described in Clause (2) of the schedule to the Plaint. Therefore, though permission deserves to be granted to lead evidence on the limited issue, the Executing Court can proceed with the execution of the decree as regards the said open land. In the circumstances, the impugned order will have to be modified. Hence, the Petition is disposed of by passing the following order. (a) The impugned order dated 28th July, 2009 passed below application at Exhibit-36 is modified. (b) It is made clear that the Respondents/Judgment Debtors are permitted to lead evidence only on the question as to whether House No.623 in the records of the Mira Bhayander Municipal Corporation is the house bearing Gram Panchayat No.254 described in the Plaint. It is obvious that even the Petitioners will be 9 entitled to lead evidence on the said aspect. (c) It is clarified that the execution relating to the open plot described in Clause (2) of the Schedule to the Plaint can proceed. (d) Hearing of the execution application is expedited and the Executing Court will make an endeavour to conclude the hearing of the said application within a period of four months from today. (A.S.OKA, J)