PRATIBHA SINGH AND ANR. versus SHANTI DEVI PRASAD AND ANR.

Citation: [2002] SUPP. 4 S.C.R. 406 · Decided: 29-11-2002 · Supreme Court of India · Bench: R.C. LAHOTI, BRIJESH KUMAR · Disposal: Disposed off

Judgment (excerpt)

A 
PRA TIBHA SINGH AND ANR. 
v. 
SHANTI DEVI PRASAD AND ANR. 
NOVEMBER 29, 2002 
B 
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] 
Code of Civil Procedure, 1908 
Ss.47 and 152-Suit for specific performance of contract to sell 
C immovable property-Failure on part of plaintiff to give specific description 
of property-Suit decreed-Execution-Omission on part of execution court 
to insist on compliance of Order 21 r.34(2)-Held, where suit as to immovable 
property has been decreed and the property is not definitely identified, the 
defect can be cured-A successful plaintiff should not be deprived of fruits of 
D the decree-A decree of a competent court should not as far as practicable, 
be allowed to be defeated on account of an accidental slip or omission-
Resort can be had to s.152 or s.47 depending on !pets and circumstances of 
case-Being an advertent error, not affecting merits of the case, it may be 
corrected u!s.152 by the court which passed the decree-Alternatively, exact 
description of decretal property may be ascertained by execution court a.s a 
E question relating to execution, discharge or satisfaction of decree within the 
meanings of s.47-0n facts, it would be more appropriate to invoke s.47-
Execution court would, after hearing the parties rectifY the map filed by decree-
holder and such corrected map would form part of the sale deed-Accordingly, 
possession shall be delivered by judgment-debtor-These directions are given 
F partly in exercise of powers under Article 142 of the Constitution for doing 
complete justice-Constitution of India-Article 142. 
H 
Order 7, r. 3, Order 20, r. 3-Suit for specific performance of contract to 
sell immovable property-Plaintiff's failure to give specific description of suit 
property-Held, plaintiff ought to have annexed with the plaint the map of suit 
proper~Jf plaintiff committed an error, defendant should have objected to 
it promptl~Default or carelessness of parties does not absolve trial court of 
its obligation, while scrutinising the plaint, to point out the omission on the 
part of the plaintiff and it should hav,e insisted on filing a map of the suit 
property-However, the defect in the court record caused by overlooking the 
provisions contained in Order 7 r.3 and Order 20 r.3 can be cured under 
406 
PRA TIBHA SINGH v. S.D. PRASAD 
407 
s.152 or s.47 depending on facts and circumstance of each case. 
Order 21, r.34(2)-Procedure for execution of docun1ents pursuant to a 
decree-Decree for specific pe1forn1ance of contract to sell imniovable 
property-Execution-Failure on part of decree-holder to sub1nit lo the court 
A 
a draft of sale deed in accordance with terms of the decree---Resultantly draft 
sale deed accompanied by a notice requiring objections to be made by judgment B 
debtor as provided by sub-rule(2) ofr.34 of Order 21 was not caused to be 
served by the court-Judgment-debtor insisting on draft sale deed being 
delivered to him-No determination by execution court as to specification of 
suit property-Held, execution .court would decide upon the correctness of the 
map forming part of the sale deed and if need be would rectifa it in part or C 
wholly and the deed of sale would take effect accordingly. 
Order 41, r.6-Security in case of order for execution of decree appealed 
from-High Court staying execution of decree under appeal subject to appellant 
depositing certain t;1mount as security and entitling the respondent to withdraw 
that amount-Respondent withdrew the amount-When the appeal was finally D 
disposed of High Court not making any order as to appropriation of the 
security amount-Held, in the absence of any specific judicial order made by 
High Court or by any other court, the amount deposited as security cannot be 
appropriated by other party and should be returned to the depositor. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7891-7892 E 
of 2002. 
From the Judgment and Order dated 27. I l.200 I of the Jharkhand 
High Court in C.R. 15/01 and 61/01. 
Appellant-in-person. 
F 
Respondent-in-person. 
The following Order of the Court was delivered : 
Leave granted. 
Failure on the part of plaintiffs to give correct, specific and exact 
description of the immovable property forming subject-matter of suit, added 
G 
by omission on the part of the Trial Court to insist on compliance by the 
draftsman of the plaint with the rules of pleadings, has resulted in a decree 
which is yet to witness its full execution and satisfaction though the liti

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