1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL REVISION APPLICATION NO. 161 OF 2001 CIVIL REVISION APPLICATION NO. 161 OF 2001 CIVIL REVISION APPLICATION NO. 161 OF 2001 1) Manu Narang (deceased) ) 2) Sanjay Narang ) 3) Ashok Narang ) 3a) Rachana Narang ) Petitiioners 2 to 3(a) being the) heirs and legal representatives ) of deceased Petitionerr No.1. ) all of Mumbai Indian Inhabitants) residing at Georgina "C", ) Shirley Rajan Road, Bandra, ) Mumbai 400 050. )(Org.Respondts) 4) Mrs. K.P.Bharucha ) Indian Parsi Inhabitant ) residing at "C" Gowalia Tank ) Building, August Kranti Marg, ) (Org.Plff) Mumbai 400 036. )..Petitioners Versus 1) Smt. Aminabai Abdul Rehman ) 2 Pirsaheb ) 2) Mahmood Abdul Rehman Pirsaheb ) 3) Mohamed TRafiq Rehman Pirsaheb ) 4) Mohamed Akhtar rehman Pirsaheb ) 5) Mohamed Sadiq Rehman pirsaheb ) 6) Miss Hasina Rehman Pirsaheb ) 7) Miss Farida Rehman Pirsaheb ) presently residing at islampura, Bharat ) Nagar, Bandra (E), Mumbai 400 051. )..Respondents (Org. Applicants) Mr.R.Narulla, advocate with Mr. A.Dasgupta i/b. M/s. Jhangiani Narulla & Associates for the Applicants. Mr. Kunal Bhanae, advocate, for the Respondents CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 21st February,2008. DATE: 21st February,2008. DATE: 21st February,2008. JUDGMENT JUDGMENT JUDGMENT 1. Before going to the disputed facts, it will be necessary to point out certain facts which are admitted or not in dispute. 2. The plaintiff - Mrs.K.P.Bharucha filed RAE Suit 3 No.1240 of 1977 for eviction and possession of one of the two garages situated at plot No.110, 30th Road, TPS III, Bandra, Bombay-50 against the original defendant - Abdul Rehman Pirsaheb. It was contended that the garage was let out to the defendant by the plaintiff’s husband. The eviction was sought on several grounds, including failure to pay the arrears of rent inspite of notice. 3. The suit was contested by the original defendant and the suit came to be decreed by the judgment dated 1.10.1991. The original defendant preferred Appeal No.157 of 1991. Pending that Appeal, the original defendant-appellant died and his legal heirs who are respondents before this Court, were brought on record. They prosecuted that appeal. However, by the judgment dated 20.1.1995, that appeal was also dismissed. The Appeal Court granted time to vacate the garage upto 30.6.1995. However, being not satisfied, the appellants preferred Writ Petition No.1725 of 1995 challenging the decree for eviction and possession. That Writ Petition came to be dismissed on 11.8.1995. Thereafter, the said appellants filed Special Leave Petition before the Supreme Court. That Special Leave Petition was also dismissed in September 1995 and thus, the decree for eviction and possession became final. After the decree had become final, the original plaintiff - decree holder 4 assigned the suit garage in favour of the applicant Nos. 1 to 3. The execution petition was filed on 24.8.1995 by the original decree holder. However, in the Execution Petition, names of the respondents who were appellants were not shown as the judgment debtors. In the Execution Petition, description of the suit property was given as motor garage, North Side, situated on plot No.110, 30th Road, TPS III, Bandra, Bombay-50 of entrance from 24th Road. ON the basis of that Execution Petition, warrant of possession as issued on 30.8.1995. With the help of the police, the warrant was executed and possession of the suit garage was given to the decree holder. 4. After execution of the aforesaid decree, the respondents, who were on record in the Appeal and who had also filed Writ Petition as well as Special Leave Petition, filed an application under Section 47 of the Civil Procedure Code challenging the execution of the decree mainly on two grounds. Firstly, on the warrant of possession, name of decreased defendant No.1 was shown but the names of the L.Rs were not shown and thus decree was executed without showing the names of the L.Rs of the original judgment debtor and secondly, in the bailiff’s report, it as mentioned that possession of two garages was taken. The application was contested by 5 the original decree holder as well as the applicants Nos. 1 to 3, who had taken possession of the suit garage after execution of the decree on the basis of assignment in their favour. According to them, the property was rightly described and possession of only suit garage was taken and not of two garages. It was contended that the possession of the suit garage was taken from the L.Rs. of the original judgment debtor and no injustice is caused to them because the decree had become final against them. 5. After hearing the parties, the learned Executing Court allowed the application filed by the L.Rs. of the original judgment debtor who are the respondents before this Court and set aside the execution of the decree and directed restoration of possession of the suit premises to the respondents. Being aggrieved by that order, the original decree holder and the three assignees have preferred the present Appeal. 6. Heard the learned Counsel for the parties. Perused the relevant record as well as the impugned order. 7. Admittedly, the plaintiff/decree holder was having 2 garages and deceased defendant occupied only 6 one of the two garages. Those garages were situated on plot No.110, 30th Road, TPS III, Bandra, Bombay-50. Admittedly, only the garage which was in possession of the deceased defendant was taken and put in possession of the D.H. in execution. It is nobody’s case that the possession of the another garage, which was in possession of a third party, was also taken. If possession of the garage with third party would have been taken, that third party would have certainly challenged it by taking appropriate legal action, but no such action was taken. In view of this, I find that merely because in the bailiff’s report, it was mentioned that he had taken possession of two garages from the appellants, the execution itself cannot be set aside. It is material to note that the impugned order passed by the Executing Court also reveals that the bailiff was called before the Court to clarify the contents of the bailiff’s report about execution of the decree and the concerned bailiff told the Court that instead of writing "one out of two garages", he had wrongly mentioned "two garages" and words "one out of" were not written in the report by mistake. According to him, he had taken possession of only one garage from the applicants. The learned Executing Court rejected this explanation. However, in my considered opinion, taking into consideration the circumstances, there was no reason to 7 reject the explanation of the bailiff who had executed the decree. There is no dispute that in the plaint,the disputed garage was described as one out of the two garages situated on plot No.110 and the parties are fully aware that one of those garages was in possession of the original defendant and after his death, in possession of his L.rs. To avoid any mistake in execution, in the execution application as well as in the possession warrant, it was specified that the garage situated in the north was to be taken possession of. There is no dispute that the suit garage was the garage situated on the north. That was in possession of the judgment debtors. In view of this, merely because, the bailiff committed mistake in writing the description of the garage which he had taken possession of, it cannot be said that any injustice or any prejudice has been caused to the respondents. 8. It is a fact that original defendant had died pending the Appeal and his L.Rs. were brought on record and they had prosecuted the Appeal and thereafter further legal proceedings including the Writ Petition and S.L.P. They were fully aware that under the decree, they were required to hand over possession of the suit garage to the decree holder. Because they failed to obey and comply the decree against them, the decree 8 holder was required to file execution proceedings under Order XXI C.P.C. 9. Order XXI Rule 11(2) of C.P.C. provides that where written application for execution is filed, it shall give the particulars mentioned in the tabular form. These particulars include the number of suit, the names of the parties, the date of the decree, the description of the property, mode in which the assistance of the Court is required and several other things which are not relevant here. It was necessary that the names of the parties against whom the decree was to be executed should have been mentioned in the application. Admittedly, instead of the names of the L.Rs. of the deceased defendant, name of the deceased defendant himself was mentioned and possession warrant was issued against him and it was also executed. But the fact remains that possession of the suit property was taken from his L.Rs, who were themselves the judgment debtors in view of the fact that they were parties to the proceedings from the stage of appeal onwards. Order XXI Rule 17 provides that on receiving an application for the execution of a decree as provided by rule 11 sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case, have been complied with 9 and if they had not been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it. Sub-rule (1A) provides that if the defect is not so remedied, the Court shall reject the application. If this language is considered carefully, it becomes clear that when certain mistake is committed and there is a defect in the application submitted under Rule 11 sub-rule (2), it shall be the responsibility of the Executing court to ascertain that the application is properly made and if any defect is noted, the Court may direct the party to rectify that defect and in fact sub-rule (1) of Rule 17 provides that the Court shall allow the defect to be remedied then and there or within a time to be fixed by it. It appears that in the present case, the Executing Court failed to scrutinise the application carefully to detect the mistake or defect in the application and as a result, the possession warrant was issued and also executed. This defect was not detected till the application was made by the respondents and that too more than one month after the execution was already completed. Therefore, the stage of detection of the defect by the Court and giving direction to the decree holder to remedy that defect had already gone. As that defect was not detected by the Court, it could not give direction to the decree holder to remedy the defect and naturally, 10 the decree holder also could not rectify that defect before execution of the decree. As that opportunity was not given to the decree holder, the application could also not be rejected because the execution application can be rejected by the Court only if defect is not remedied inspite of the directions given by the executing Court as provided under sub-rule (1A) to rule 17. 10. In T.A.Darbar & Company and others vs. Union T.A.Darbar & Company and others vs. Union T.A.Darbar & Company and others vs. Union Bank of India 1992 (3) Bom.C.R.702 Bank of India 1992 (3) Bom.C.R.702 Bank of India 1992 (3) Bom.C.R.702, the learned Single Judge of this Court, after referring to the provisions of Rule 11(2) and Rule 17(1A) observed as follows :- "The said rules thus obligate the Court to give an opportunity to the applicant to remedy the defect in the application in respect of non-compliance of the provisions contained in Order 21, Rules 11 to 14 of the Code and enables the Court to reject the application only if the defect is not remedied by the applicant on being called upon to do so then and there or within the time fixed by the Court. Substitution of the word "shall" in place of the word "may" in Order 21, Rule 17(1) of the Code by the Amending Act of 1976 is of considerable significance. 11 Sub-rule (3) of the said rule provides that the amendment made to the defective application for execution shall relate back to the date when it was first presented.An application for execution of the decree is liable to be treated as a pending application even if it is defective. Such an application cannot be rejected by the Court unless the defect is pointed out to the applicant and the same is not remedied by the applicant on being called upon by the Court so to do." It may be noted that the said Judgment of the learned Single Judge was challenged before the Appeal Bench and that order was confirmed by the Appeal Bench as reported in T.A.Darbar & Company vs. Union of India 1995(1) T.A.Darbar & Company vs. Union of India 1995(1) T.A.Darbar & Company vs. Union of India 1995(1) Mah.L.J.610. Mah.L.J.610. Mah.L.J.610. Similar view has been taken by the Rajasthan High Court in Rameshwar Lal Amar Chand Rameshwar Lal Amar Chand Rameshwar Lal Amar Chand Choudhary vs. Commercial Co-operative Bank Ltd., Ajmer Choudhary vs. Commercial Co-operative Bank Ltd., Ajmer Choudhary vs. Commercial Co-operative Bank Ltd., Ajmer and others AIR 1972 Raj. 46. and others AIR 1972 Raj. 46. and others AIR 1972 Raj. 46. 11. In view of the legal position stated above, if pending the execution petition, defect would have been noticed or detected, the decree holder could be directed to rectify and remedy that defect and if the decree holder would have failed to remedy the defect, the 12 execution petition could be rejected but if he would rectify the same, naturally execution could proceed further. In the present case, as stated earlier, neither that defect was detected nor decree holder was directed to rectify the same till the decree was fully executed. If the execution of the decree would cause serious prejudice or injustice to a person who was not party to the proceedings or if a property, which was not the suit property, would have been taken possession of in the execution, it would be necessary to set aside the execution and restore possession to the aggrieved party. However, in the present case, even though the names of the respondents, being L.Rs of the original defendant, were not shown in the execution petition and the possession warrant, still fact remains that after death of the original defendant, they themselves had applied for being brought on record as L.Rs of the original defendant and they had themselves prosecuted that appeal and to their knowledge the appeal was dismissed. Not only that, the Writ Petition and the Special Leave Petition filed by them against the judgment and decree were also dismissed. Admittedly, after the death of the original defendant, they themselves were in possession and thus in real sense they were the judgment debtors. Under the law, they were expected to obey the decree and in compliance of the decree to hand over peaceful 13 possession to the decree holder. The assistance of the Court by filing the execution petition is required only when the judgment debtors fails to comply with the decree. In this sense, even if their names would have been shown in the execution petition as well as on the execution warrant, they would be bound to hand over possession of the suit garage and the bailiff would be legally right in taking forcible possession also from them. If in such circumstances, possession was taken from them, merely because their names were not shown in the execution petition or on the possession warrant, no rejudice or injustice was caused to them nor they have been deprived of any property which they were entitled to possess after the decree had become final. In such circumstances, the purpose of justice would not be served by allowing the application made by the judgment debtors and by restoration of possession to them only because of the aforesaid defect. In fact, if their application is allowed, that would cause serious prejudice to the decree holder. Further, all such exercise may be futile because even if the order of the Executing Court to restore possession to the judgment debtors is complied with, the decree holder would be entitled to get the decree executed forthwith and get back the possession. In such circumstances, no purpose would be served by allowing the application filed by the 14 judgment debtors under Section 47 C.P.C. The Executing Court did not consider all these aspects. Therefore, in my considered opinion, the impugned order is liable to be set aside. 12. Before concluding, it may be noted that the decree holder and the assignees have also filed Civil Application No.197 of 2006 seeking direction to rectify the mistake and to amend the execution proceedings. As this could have been done before execution, to set the record straight, this Application may now be allowed. 13. For the aforesaid reasons, the Civil Revision Application is allowed. Rule is made absolute. The impugned order is hereby set aside. 14. The Civil Application No.197 of 2006 is also allowed and amendment be effected as per prayer clause (a) within two weeks from this day. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)