Smt. Wahidan Alias Noori v. Civil Judge (SD), Kishangarh, Ajmer & Anr.

01.02.2012 HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr. Vinodi Lal Mathur for the petitioner By the Court:

The petitioner by way of present petition filed under Article 227 of the Constitution

of India has challenged the orders dated

18.8.2010 and 13.10.2010 passed by the Executing Court in Execution Petition No.19/09.

The main bone of contention raised by learned counsel Mr. Vinodi Lal Mathur for the petitioner is that neither the plaint nor the decree contained the full description of the suit property. According to him, even the agreement in question did not contain the particulars of the suit property. Placing heavy reliance on the provisions contained in Order VII Rule 3 of CPC and on the judgment of Karnataka High Court in AIR 1999 2 Karnataka 421 (Ambanna v. Ghanteppa), learned counsel has submitted that the particulars of the suit property have to be mentioned in the plaint itself. Relying on judgment of Apex Court in the case of Lakshmi Ram Bhuyan vs Hari Prasad Bhuyan and ors (2003(1) SCC 197), he has submitted that the decree must concur with the judgment. According to him, the orders passed by the Executing court being illegal, the same deserve to be set aside.

Having regard to the submissions of learned counsel for the petitioner and to the documents on record, it transpires that the suit No.6/2000 filed by the respondent No.2 (original plaintiff) seeking specific performance of the agreement in question was decreed against the present petitioner (original defendant) on 3.7.2009. The said decree remained unchallenged at the instance of the present petitioner. Respondent— plaintiff initiated the executing proceedings being No. 19/09 in which the Executing Court had issued the possession warrant under Order XXI Rule 35 of CPC on 18.8.2010. The petitioner thereafter submitted an application under Order XXI Rule 26 of CPC 3 and another application for early hearing of the application. The Executing court vide order dated 13.10.2010 dismissed the said applications of the petitioner. Being aggrieved by the said orders dated 18.8.2010 and 13.10.2010, the petitioner has invoked the supervisory jurisdiction of this court under Article 227 of the Constitution of India.

The contention raised by learned counsel for the petitioner is that the suit property was not properly described either in the plaint or in the decree, does not deserve any consideration for the simple reason that in para–3 of the plaint itself it has been specifically mentioned that the defendant had expressed her desire to purchase the property situated at Malio Ki Dhani, Madanganj, Kishangarh Ward No.7 in which the defendant was staying as tenant and paying rent of Rs.500/- per month. Agreement in question dated 31.1.1997 was also in respect of the said property for which specific performance was sought by the respondent No.2 plaintiff. There is also specific reference and description of the said suit property in the body of the judgment and decree passed by the 4 trial court. Under the circumstance, it cannot be said that the suit property which was immovable property was not described properly, as per the provisions contained in Order VII Rule 3 of CPC. In any case, the petitioner (defendant-judgment debtor) has not raised any such objection in the suit, on the contrary she has admitted in her written statement that she was residing in the suit property. In that view of the matter, the judgments cited by learned counsel for the petitioner are not applicable to the facts of the present case.

It cannot be gainsaid that the supervisory jurisdiction under Article 227 of the Constitution should be exercised by the High Court sparingly and only in appropriate cases. Even the error of facts or law, unless error is manifest and apparent on the face of record entailing gross failure of justice, should not be corrected. A beneficial reference of the law laid down by the Apex Court in the cases of Surya Dev Rai vs Ram Chander Rai and ors (2003 (6) SCC 675) and Abdul Razak (D) through L.Rs. And others vs Mangesh Rajaram Wagle and ors (AIR 2010 SCW 1414) be made in this regard. 5

In view of the above stated factual and legal position, this court does not find any merit in the petition and hence the same is dismissed in limine. (BELA M. TRIVEDI) J. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash