Case Note & Summary
The petitioner, who was the plaintiff in O.S. No.84/2002 on the file of the Civil Judge (Jr.Dn.), Chintamani, filed a suit for specific performance of an agreement of sale in respect of land bearing Sy.No.44 measuring 1 acre 16 guntas situated at Hiranyapalli village. The suit was decreed on 2.9.2002. Thereafter, the plaintiff filed execution petition in E.P. No.21/2009 seeking execution of the sale deed. During execution proceedings, the plaintiff sought that the property be referred to by its new survey number Sy.No.212 in addition to the old number. The execution court, by order dated 17.3.2012, directed the plaintiff to get the suit schedule property measured by the Survey Department and to produce a sketch showing the property with the new survey number. Aggrieved by this order, the plaintiff filed the present writ petition under Articles 226 and 227 of the Constitution of India. The High Court examined the impugned order and found that the execution court had merely directed the plaintiff to facilitate identification of the property by obtaining a measurement and sketch. The court noted that the order was passed under Section 47 of the Code of Civil Procedure, 1908, which is not a decree and is not appealable. The court held that the execution court has the jurisdiction to pass such procedural orders to ensure proper execution of the decree. The court further observed that the direction to produce a sketch with the new survey number was reasonable and did not suffer from any error of law or jurisdiction. Consequently, the writ petition was dismissed as devoid of merits.
Headnote
A) Civil Procedure Code - Execution of Decree - Section 47 CPC - Order under Section 47 is not a decree and not appealable - The execution court's direction to the plaintiff to get the property measured and produce a sketch with new survey number is a procedural order within its jurisdiction - Held that the order does not suffer from any error of law or jurisdiction (Paras 4-6). B) Specific Relief Act, 1963 - Specific Performance - Execution of Sale Deed - Section 22 - The plaintiff in a suit for specific performance is entitled to seek execution of the sale deed, but the execution court can require identification of the property with reference to current survey records - Held that the direction to produce a sketch with new survey number is proper (Paras 2-4). C) Civil Procedure Code - Writ Jurisdiction - Article 227 of Constitution of India - Interference with interlocutory orders - The High Court under Article 227 will not interfere with a discretionary order of the execution court unless it is perverse or without jurisdiction - Held that the impugned order is within the court's competence and does not warrant interference (Paras 5-6).
Issue of Consideration
Whether the order passed by the execution court under Section 47 CPC directing the plaintiff to get the suit schedule property measured and to produce a sketch showing the property with new survey number is erroneous and liable to be quashed.
Final Decision
The High Court dismissed the writ petition, holding that the impugned order was within the jurisdiction of the execution court and did not suffer from any error of law or fact. The court found no merit in the petition.
Law Points
- Section 47 CPC
- Order 21 Rule 32 CPC
- Specific Relief Act
- 1963
- Section 22
- Execution of decree
- Resurvey numbers
- Maintainability of writ petition under Article 227
