(Prayer: Civil Revision Petition filed under 115 of the Civil Procedure Code, to allow this Civil Revision Petition and set aide the fair and decretal order dated 08.10.2025 in E.P.No.64 of 2008 in O.S.No.255 of 2005 passed by the Principal District Munsif Court, Sankarankovil.
Civil Revision Petition filed under 115 of the Civil Procedure Code, to allow this Civil Revision Petition and set aide the fair and decretal order dated 08.10.2025 in E.A.No.02 of 2022 in E.P.No.64 of 2008 in O.S.No.255 of 2005 passed by the Principal District Munsif Court, Sankarankovil.)
Common Order:
1. Heard Mr.B.Rajesh Saravanan for the petitioner and Mr.K.Alagarsamy for the respondents.
2. These two revisions are at the instance of the decree holder. A suit in O.S.No.255 of 2005 was presented before the learned Principal District Munsif, Sankarankovil, for the following reliefs:
3. The suit schedule mentioned property, for which the present plaint has been presented, is as follows:
4. The defendants presented a written statement. Originally, the suit was decreed by setting the defendants ex parte on 03.07.2006. Subsequently, the ex parte decree was set aside in I.A.No.865 of 2006 on 28.09.2006. Yet again, the suit was decreed by the Trial Court on 18.07.2007.
5. The decree holder filed E.P.No.64 of 2008, seeking to execute the decree. The schedule in the Execution Petition is identical to the schedule given in the decree. The Executing Court ordered delivery on 26.08.2013. The warrant of delivery was taken for execution on 10.12.2014. It was returned on that date with the following endorsement:
Thereafter, on 22.03.2016, yet again, the Executing Court ordered re-delivery in the following terms:
6. The bailiff, who went to take delivery, returned the warrant yet again for the same reason that the survey number differs. The Executing Court, taking note of its earlier order, yet again ordered delivery on 23.09.2019. That warrant too was returned for the following reason:
Two reasons, for which, the warrant has been returned, are that, (i) the survey number is wrong and
(ii) the boundaries have been shown as Ramasamy and Eswara Thevar instead of Ramasamy and Eswara Moorthy Thevar.
7. The decree holder filed E.A.No.2 of 2022, seeking a direction from the Executing Court to hand over possession as per the decree. The learned Executing Judge came to a conclusion that as the survey number differs and since there is a dispute in identity of the property, E.A.No.2 of 2022 is untenable and consequently, by orders dated 08.10.2025, she dismissed the Execution Petition as well as the petition filed for direction to hand over the possession. Challenging both the proceedings, the present revisions.
8. The learned counsel on either side reiterated the contentions that were placed before the court below. I have gone through the records. I have carefully considered the submissions of both sides.
9. At the outset, I should point out that it is a fundamental principle of law that boundaries prevail over survey numbers. The purpose of this rule is that, where there is a conflict between physical boundaries described in the decree and the survey number, extent or measurement mentioned therein, the boundaries will dominate the control and identity of the property. The Supreme Court in Subhaga and others Vs. Shobha and others, (2006) 5 SCC 466, pointed out that physical boundaries prevail over minor discrepancies in descriptions, dimensions or survey number. The Supreme Court held that it is well established that a property can be identified either by a boundary or by any other specific description. If a property is identifiable via tangible boundaries, those boundaries will override minor paper errors or peripheral omissions. This principle has been in vogue for a very long period of time and it is unfortunate that the learned Principal District Munsif gave precedence to the survey number and the minor discrepancy in one of the names found in the boundaries.
10. The report of the bailiff pointed out that the plaintiff had described the name of one of the adjacent owners as “;<];tu %Hj;jpj;NjtH”. When he had gone to the site, it is not as if and instead of “;<];tu %h;j;jpj;NjtH”, some other person's name was found. The name was “;<];tuj;NjtH”. It is not a case of ambiguous or fake boundary or a fraudulent or intentional misrepresentation for the learned Executing Judge to carve out an exception. It has been a principle from the time of Roman law that a false description does no harm – falsa demonstratio non nocet. Once the suit schedule mentioned property is sufficiently identified by the boundaries, any inconsequential wrong description ought to have been ignored by the Executing Court.
11. The learned Executing Judge has forgotten that it is the duty of the Executing Court to ensure that the decree holder gets the fruits and benefits of the decree. A litigant does not approach a Court to obtain a paper decree. As pointed out by the Supreme Court in Rahul S. Shah v. Jinendra Kumar Gandhi and others, (2021) 6 SCC 418, the Executing Courts must exercise the power to ensure that the decree holder receives the actual benefits of the decree, without his valid claim being derailed by frivolous objections.
12. The lamentation of the Privy Council in General Manager of the Raj Durbhunga Vs. Maharajah Coomar Ramaput Sing, (1871-72) 14 Moo IA 605, that the difficulties of a litigant in India began when he obtained a decree, is true when it comes to this case. The provisions of Order XXI of the Code have been so carefully worded and legislated upon to ensure that the decree holder obtains the relief granted by the Court on its original side. It is expected that the Executing Court do not sit passively, but play a proactive role to facilitate the relief enforcement (See, Ghan Shyam Das Gupta and another Vs. Anant Kumar Sinha and others, (1991) 4 SCC 379). At this stage, I would usefully refer the judgment of the Supreme Court in Pradeep Mehra Vs. Harijivan J.Jethwa (since deceased thr. lrs.) & ors, 2023 INSC 958.
13. One more fundamental principle that has been given a go-by by the learned Executing Judge is the principle of res judicata. Res judicata operates directly against the Court once it applies. The Court has to be strict about its jurisdiction to hear and decide on a matter, which has already been finally decided. By the operation of Section 11 of the Code to Execution Petitions, the Executing Court cannot entertain or adjudicate a dispute, which has already been adjudicated upon. It is too well settled that res judicata applies to execution proceedings also. As a reminder, I am merely pointing out the following judgments:-
(i) Mohanlal Goenka v. Benoy Kishna Mukherjee and others, AIR 1953 SC 65;
(ii) Prem Lata Agarwal v. Lakshman Prasad Gupta and others, AIR 1970 SC 1525;
(iii) Barkat Ali and another v. Badrinarain (dead) by LRs, (2008) 4 SCC 615 and
(iv) Dipali Biswas V. Nirmalendu Mukherjee and others, 2021 INSC 616.
14. The learned Judge herself has recorded that on 22.03.2016 and 11.12.2014, the Executing Court had rejected the return of the Ameen that the property could not be delivered as the survey number does not tally. This order had not been put to challenge by the judgment debtor. Once the Court had rejected the report of the Ameen and passed an order on its merits and it had not been objected to by the judgment debtor, the judgment debtor cannot, on re-issuance of the warrant, raise the objection as it has been done in the present case. Net result of this discussion is that the Executing Court has failed in its duty and has been carried away by the minor error pointed out by the bailiff and has dismissed the Execution Petition.
15. The learned counsel for the judgment debtor relied upon the judgment of the Supreme Court in Hindustan Petroleum Corporation Limited Vs. Ajay Bhatia, (2022) 7 MLJ 437 (SC). The said case arose before the Supreme Court under the following circumstances:
15.1. The appellant was operating two petrol pumps on two continuous properties in Delhi. One was in Plot No.4/4 and the other was in Plot No.4/5. On the expiry of lease in June 2003, the decree holder presented a suit for recovery of possession, mesne profits and damages. The suit came to be decreed on 21.11.2013. During execution proceedings, dispute arose over the exact plot that had to be delivered. It was argued before the Executing Court that a decree had been obtained only for Plot No.4/4, but execution was being sought against Plot No.4/5. It was also urged that proper demarcation of the property was essential through a Revenue Officer as the plaint site plan inadequately identifies the property. More importantly, it was pointed out no boundaries had been specified. Taking advantage of the decree, the decree holder, not only took the possession of Plot No.4/4, but also a portion of Plot No.4/5. The Trial Court had rejected the plea taken by the judgment debtor. It was confirmed in appeal.
15.2. When the matter came up before the Supreme Court, after perusal of the suit, decree and other records, the Supreme Court came to the conclusion that the decree pertains only to Plot No.4/4 and any execution with respect to Plot No.4/5 is beyond the scope of the decree. Relying upon its earlier judgment in Pratibha Singh Vs. Shanti Devi Prasad, (2003) 2 SCC 330, the Supreme Court held that a revenue officer could have been appointed as a local commissioner to demarcate Plot No.4/4, ensuring that only that property alone is delivered to the decree holder and any property taken in excess of the said portion is restored to the appellant. In my view, this judgment, instead of going in favour of the judgment debtor, goes in favour of the decree holder.
16. In Pratibha Singh's case, the Supreme Court pointed out that when a suit relating to an immovable property has been decreed and the property has not been identified properly, a decree holder should not be deprived of the fruits of the decree. The Supreme Court directed the Executing Court to resort to either to Section 152 or Section 47 of the Code and the property be ascertained by the Executing Court itself. In paragraph 17 of the judgment, the Supreme Court directed that 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. The Supreme Court exhorted the Executing Court to invoke Section 47, if necessary, to identify the property and grant delivery of possession. This verdict was rendered in a case where both at the stage of pleading and at the stage of execution, a mistake had been made with respect to the description of the property. It was following this judgment that the Supreme Court in Hindustan Petroleum Corporation Limited's case held that as the decree relates to Plot No.4/4, execution of the same with respect to Plot No.4/5 was erroneous.
17. In the present case, it is not the case of the judgment debtor that between the parties, there are several other properties and the property is incapable of being identified with the boundaries. Taking advantage of the error in the survey number, a decree of the year 2007 has been set at naught by the Executing Court. The Ameen of the Court, instead of assisting in execution of the decree, has repeatedly returned the warrant on the same ground. The Executing Court should have come down heavily on the Ameen for adopting such tactics. Instead, it has gone to the extent of dismissing the very Execution Petition, relying upon the frivolous endorsement made by the Court Ameen.
18. In the light of the above discussions, the Civil Revision Petitions are allowed with the following directions:-
(i) The order passed by the Executing Court in E.P.No.64 of 2008 in O.S.No.255 of 2005 dated 08.10.2025 and the order in E.A.No.2 of 2022 in E.P.No.64 of 2008 in O.S.No.255 of 2005 dated 08.10.2025 are set aside.
(ii) The Execution Petition in E.P.No.64 of 2008 stands restored onto the file of the learned Principal District Munsif at Sankarankovil.
(iii) The Executing Court shall issue a warrant of delivery within two weeks from the date of receipt of a copy of this order.
(iv) The learned Principal District Munsif, Sankarankovil, shall appoint a bailiff/ameen, other than the one who has gone to execute the decree on the earlier occasions. The delivery warrant shall not be returned for the same reason as it has been done on the previous occasions.
(v) At the time of issuance of warrant, there shall be an order for police protection.
(vi) The entire execution proceedings should be completed within a period of four (4) weeks therefrom.
(vii) The judgment debtor shall pay a cost of Rs.10,000/- (Rupees Ten Thousand only) per Civil Revision Petition. The decree holder will be entitled to recover the costs in the pending execution proceedings.
