Shri.Pradeep Singh v. Shri.Balwant Raj Sawhney And ANR
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/14/2025 Shri. Pradeep Singh Vs.
Shri. Balwant Raj Sawhney and another Mr. K. M. B. Jayapal ... for the petitioner Ms. A. S. Zinu ... for the respondent/OP July 02, 2025 [SR] Item No.3 The order impugned dated January 24, 2025 passed by the learned Civil Judge, Senior Division, Port Blair allows a petition for amendment under Order 6 Rule 17 of the Code of Civil Procedure, 1908.
The facts leading to the order impugned may be summarized as follows:- A compromised decree was passed in Other Suit No.229 of 2011.
The decree is quoted below:- "It is Ordered that the suit be and the same is decreed on compromise but without cost. The plaintiff is hereby do entitled to get a decree for specific performance of contract in respect of agreement dated 22.2.2008 and the compromise petition be made part of the decree. The defendant is hereby directed to execute and register a sale deed in respect of landed property bearing survey No.1027/2 measuring an area about 230 sq.mtr along with semi RCC structure situated at Junglighat Villlage within 60 days from this date of order, failing which the plaintiff is at liberty to put the decree in execution."
The compromise petition, however, inter alia, provided as follows:- "v.
The footpath in an area of sq.mtrs (approximately) over landed property bearing Survey No.245/19 recorded in the name of defendant which is being utilized by both Plaintiff and Defendant to access to their respective house shall be enjoyed by both of them and under no situation and circumstance any construction would be raised by either of the party in future."
The petitioner contends that the decree has been satisfied by execution of necessary deed.
It appears that thereafter the opposite party no.1 filed Other Suit No.64 of 2019 praying, inter alia, for declaration of hi easement right with regard to the relevant pathway. Similarly, the petitioner also filed Other Suit No.12 of 2019. Both the suits were tried analogously. Other Suit No.12 of 2019 was decreed while Other Suit No.64 of 2019 was dismissed. It is also not in dispute that an appeal against the said dismissal decree is pending before the appeal court. In the meantime, an execution application was filed by opposite party No. 1 for executing decree passed in Other Suit No. 229 of 2019. In the said application for execution, against column No.12 of the form, the opposite party No.1 described the mode of execution as follows:- "Allowing the petitioner to use/access the footpath measuring an area 66 Sq.Mtrs (3.2 Meters Width) over the landed property bearing Survey No. 245/19, to reach the house of the petitioner."
Thereafter, the opposite party no.1 filed an application under Order 6 Rule 17 of the Civil Procedure Code, 1908 for amendment in the said execution form. It was prayed that
against column no.12, the following mode of execution should be incorporated instead and in place of the mode of execution mentioned earlier.
"Allowing the petitioner to use/access the footpath measuring an area 66 Sq.Mtrs (3.2 Meters Width) over the landed property bearing Survey No. 245/19, to reach the house of the petitioner, by removing the obstruction raised by Judgment Debtor in the shape of permanent wall." Learned Civil Judge, by passing the order impugned, allowed the said application for amendment.
I am of the view that the order impugned cannot be sustained. The provision of Order 6 Rule 17 of the Code of Civil Procedure, 1908 can be invoked only for amendment of pleadings. Formal application for execution cannot be said to be a pleading so as to to attract the provisions of Order 6 Rule 17 of the Civil Procedure Code, 1908.
Even if it is assumed that the application was allowed by invoking the inherent power of the court, I am of the view that in the relevant column, the petitioner should have provided the proposed mode of execution in terms of Section 51 of the Code of Civil Procedure, 1908.
The modes of execution prescribed thereunder are, inter alia, by attachment and sale, by arrest and detention in prison, appointment of receiver or any other appropriate modes. The particulars furnished by the opposite party no.1 against column no.12 do not indicate any of the modes as aforesaid for execution of the relevant decree. I am of the view that the proposed amendment should not have been allowed.
Accordingly, the order dated January 24, 2025 passed by the learned Civil Judge Senior Division at Port Blair passed in Other Execution Case No.2 of 2021 is set aside. I have not gone into the question as to whether the execution petition is otherwise maintainable. This order shall not however preclude the petitioner from taking any appropriate steps in accordance with law. CO/14/2025 stands allowed.
( Kausik Chanda, J. )