Case Note & Summary
The petitioner, Mr. Pradeep Virginkar, filed a Writ Petition before the Bombay High Court at Goa challenging an order dated 29th June 2004 passed by the Executing Court in execution proceedings. The respondent, Mr. Luis D'Souza, was the decree-holder in a suit for possession of a plot of land measuring 27 metres x 13 metres. The decree was passed in favour of the respondent for possession of the said plot. However, in the execution order, the Executing Court erroneously described the plot as measuring 29 metres x 13 metres, thereby enlarging the area beyond the decree. The petitioner contended that the decree-holder was only entitled to possession of the plot admeasuring 27 metres x 13 metres and that the Executing Court had no jurisdiction to increase the area. The respondent's counsel fairly conceded the error and agreed that the order should be modified to reflect the correct dimensions of 27 metres x 13 metres. The court accepted this concession and modified the impugned order accordingly, holding that the Executing Court cannot enlarge the area of the plot beyond what was decreed. The rule was disposed of in the aforesaid terms with no order as to costs.
Headnote
A) Civil Procedure - Execution of Decree - Modification of Decree - Executing Court cannot enlarge the area of the suit property beyond the decree - The decree was for possession of a plot measuring 27 metres x 13 metres, but the impugned order erroneously mentioned 29 metres x 13 metres - The respondent-decree-holder conceded the error and the court modified the order to read 27 metres x 13 metres - Held that the Executing Court cannot increase the area of the plot from that decreed (Paras 3-4).
Issue of Consideration
Whether the Executing Court could enlarge the area of the suit plot from 27 metres x 13 metres to 29 metres x 13 metres in execution of the decree.
Final Decision
The impugned order dated 29th June 2004 is modified to read portion AB as 27 metres and portion DC as 27 metres. Rule disposed of in the aforesaid terms. No costs.
Law Points
- Execution court cannot enlarge decree area
- decree must be executed as passed
- modification by consent of parties permissible
Case Details
2005 LawText (BOM) (08) 172
Writ Petition No. 506 of 2004
Mr. S. D. Lotlikar, Senior Advocate with Ms. K. Sambari for petitioner; Mr. N. N. Sardessai for respondent
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Nature of Litigation
Writ Petition challenging an order of the Executing Court in execution proceedings of a decree for possession of immovable property.
Remedy Sought
The petitioner sought modification of the Executing Court's order to restrict the area of the suit plot to 27 metres x 13 metres as per the decree.
Filing Reason
The Executing Court erroneously described the suit plot as measuring 29 metres x 13 metres instead of 27 metres x 13 metres as decreed.
Previous Decisions
The Executing Court passed an order dated 29th June 2004 granting possession of the plot measuring 29 metres x 13 metres.
Issues
Whether the Executing Court could enlarge the area of the suit plot from 27 metres x 13 metres to 29 metres x 13 metres in execution of the decree.
Submissions/Arguments
The petitioner argued that the decree-holder was entitled to possession of the plot admeasuring 27 metres x 13 metres only and the Executing Court could not increase the area.
The respondent-decree-holder conceded the error and agreed that the order should be modified to read 27 metres x 13 metres.
Ratio Decidendi
The Executing Court cannot enlarge the area of the suit property beyond what was decreed; the decree must be executed as passed. However, modification by consent of the parties is permissible.
Judgment Excerpts
Obviously, in the execution of the decree, the area of the plot could not have been increased by the Executing Court from 27 metres x 13 metres to 29 metres x 13 metres.
I accept this statement of the learned counsel for the respondent - decree-holder and the impugned Order dated 29th June, 2004 shall stand modified accordingly.
Procedural History
The respondent obtained a decree for possession of a plot measuring 27 metres x 13 metres. In execution, the Executing Court passed an order on 29th June 2004 granting possession of a plot measuring 29 metres x 13 metres. The petitioner filed the present Writ Petition challenging that order.
