JUDGMENT
Milap Chandra, J.
1. The first revision petition has been filed against the orders of the learned Munsif, Jodhpur City dated August 12, 1988 and December 20, 1988. By the first order, he has dismissed the application of the judgment debtor-petitioner dated August 3, 1988 praying for not issuing warrant for the delivery of possession against him. By the second order, the review application dated August 26, 1988 has been dismissed. The second revision petition has been filed against the order dated April 21, 1989 by which the learned Munsif has rejected the application of the defendant-petitioner moved in Original Suit No. 97/78 for not amending the decree in compliance with the said order dated August 12, 1988 The facts of the case giving rise to these revision petitions may be summarised thus.
2. Suit No. 97/78 was filed by the pLalntiff-non-petitioner Devi Singh against the defendent-petitioner Shyam Sunder for the recovery of arrears of rent and ejectment on the grounds of defaults in payment of rent and subletting of the demised premises to sub-tenant Mohanlal. The demised premises consists of a plot situated in Bhandari Building, 1st ‘A’ Road, Sardarpura, Jodhpur. The Sub-tenant Mohanlal further sub-let a part of it to Bal Chand. Mohanlal sub-tenant and Bal Chand were not impleaded in the suit. After obtaining several adjournments on the ground that talks of compromise were going on in between the parties, the defendant ultimately expressed not to file his written statement. After recording the evidence of the pLalntiff, the suit was decreed on November 29, 1978. On November 14, 1979, an execution application was moved for obtaining the possession of demised plot. On October 4,1989, one Gangaram moved an application, Papers No. B8/2-5, Under Section 151, CPC stating that he and his brothers are in possession of the suit plot in their own rights and praying that the decree-holder be not allowed to dispossess them in execution of the warrant for delivery of possession. After taking the repply of the decree-holder and bearing the parties the application was dismissed on March 31, 1981. In this Court, the Civil Revision Petition No. 174/81 was filed by Gangaram. It was dismissed on October 20, 1983. Thereafter, suits No. 443 and 463 of 1983 for injunction were filed by Gangaram and sub-tenant Bal Chand along with applications Under Order 39 Rules 1 and 2, CPC. These applications were dismissed by the learned Munsif, Jodhpur City by his orders, paper No. A-18/17-26, dated July 20, 1987. Appeals No. 41 and 42 of 1987 were filed by Gangaram and Bal Chand and they were dismissed on June 2, 1988 vide judgments, papers No. A-18/10-12 and A-18/13-16. Review petitions were filed against the juegments dated June 2, 1988. and they were dismissed by orders, paper No. A-29/2-11, dated June 3, 1989. Civil Suit No. 361/88 was filed by Murlidhar, brother of judgment-debtor Shyam Sunder, along with an application Under Order 39 Rules 1 and 2, CPC. It was dismissed on May 24,1989, vide order papers No. B-2O/I-8. Thereafter, suit No. 40 of 1989 was filed by Bali Bai, mothor of the judgment-debtor, along with an application Under Order 39 Rules 1 and 2, CPC, Bal Chand filed Civil revision No. 292/89 against the order dated June 2, 1981, dismissing his appeal filed against the said order dated June 2, 1988. The revision petition was dismissed by this Court by its detailed order dated October 16,1989. On January 19,1984, the judgment-debtor Shyam Sunder filed objections Under Section 47, CPC. After bearing the parties, they were dismissed by the executing court by its order dated August 2, 1988, papers No. A16/1-3. On August 3, 1988, the judgment-debtor moved a fresh application raising objection against the execution of the decree on the ground of mis-description of the suit plot in the decree. The decree-holder Devi Singh filed his reply on August 4, 1988. The juegment-debtor did not file its rejoinder. After hearing the parties, the Executing Court dismissed the judgment-debtor’s application dated August 3, 1988 and directed the amendment of the decree under execution relating to description of the Suit plot by its order dated August 12,1989, under revision. On August 26, 1988 the judgment-debtor moved an application for reviewing the order dated August 12, 1988. It was dismissed by order dated December 20, 1988 under revision, The same day the judgment-debtor moved an application paper No B-17/1-3, under reckon 151, CPC in the original suit for not carrying out the amendment of the decree in pursuance of the order dated August 12, 1988, without hearing him. This application was dismissed and the decree was amended by exchanging the northern and southern boundaries of the suit plut by order dated April 21, 1989, challenged in Civil Revision No. 269/89.
3. It has been contended by the learned Counsel for the judgment-debtor petitioner that the executing court had no jurisdiction to direct the amendment of the decree relating to the description of the suit property by its order dated August 12, 1988. He relied upon Mst. Chanda v. Mst. Bilam Kanwar, ILR 1953 Rajasthan 914: 1954 RLW 226. He further contended that the amendment proceedings are independent and a decree cannot be amended without giving prior notice to the opponent He relied upon Rameshwar Bhartia v. State of Assam, . He also contended that the decree under execution has been amended without any application for its amendment and issuing notice to the judgment-debtor, the description of the suit property given in the amended decree is not in accordance with the description given in the pLalnt, it could not be corrected and the proper remedy is to file a separate suit. He lastly contended that a nullity can be set up at any time and at any stage of the proceedings.
4. In reply, it has been contended by the learned Counsel for the decree-holder-non petitioners Devi Singh that the revision petition are not maintainable, no illegality or material irregularity in the exercise of jurisdiction has been committed by the executing court and the orders, if allowed to stand, would not occasion failure of justice or cause irreparable injury to the judgment-debtor-petitioner Shyam Sunder as admittedly he is not in possession and occupation of demised plot. He also contended that revision petition No. 206 of 1989 filed against the order dated August 12, 1988 is time barred, filing of the review petition and its subsequent dismissal did not enlarge the limitation and no application for condonation of the delay has admittedly been moved. He further contended that the objections of the judgment-debtor petitioner were rejected by the executing court by its order dated 2nd August. 1988 and the subsequent application dated August 3, 1988 containing one of the earlier objections regarding the misdescription of suit plot was barred Under Section 11, CPC. He relied upon Smt Pushpa v. Ganpat Singh [1977 WLN 248]. He also contended that the executing court has jurisdiction to correct the decree and he relied upon Ganesh Prasad Agarwalla v. Manohar Lal Muilick and Amr [AIR 1940 Calcutta 202], Ganesh v. Sri Ram Lalaji Maharaj Birajman Mandir and Ors. AIR 1973 All 166 (FB), Smt. Vidyavati Bai v. Smt. Parkash Vati Devi and Anr. ], Rania v. Smt. Kamla Devi and Anr. and Shankergouda v. Garangouda and Ors. [AIR 1976 Karnataka 204]. He further contended that all the orders under revision, were passed after hearing the learned Counsel for the judgment-debtor-petitioner Shyam Sunder at length and there was no necessity of giving a notice for the amendment of the decree when the judgment-debtor himself appeard and moved an application seriously objecting the amendment of the decree.
5. There is great force in the contention of the learned Counsel for the decree-holder Devi Singh that the order under revision, if allowed to stand would not occasion failure of justice or cause irreparable injury to the judgment-debtor-petitioner Shyam Sunder. Admittedly, the suit for ejectment was failed on the ground of sub-letting also. The judgment-debtor Shyam Sunder has stated in para No. 2 of his objection petition, peper No. Bl3/7-8, dated January 19, 1984 as follows:
^^ blds vykok eg;qu es dksbZ dkywjketh dk ugh ns[kk A ljnkjiqjk es dkywjketh dk fdlh IyksV ij Hkh dCtk eg;qu us ugh ns[kk eg;qu dk dCtk ljnkjiqj es fdlh Hkh IyksV ij u dHkh Fkk A vkSj u vkt gS A eg;qu fMdzhnkj dk fdjk;snkj dHkh ugh gqvk vkSj u gh mlds fdlh IyksV ij mldk dksbZ dCtk jgk A nkok nsohflag us ljklj wB is’k fd;k gS A eg;qu us dskbZ IyksV vFkok mldk dskbZ fgLlk eksguyky o ckypUn dsk lojsD’ku ugh fd;k A pwfd eg;qu ds f[kykQ csn[kyh dh fMdzh csekus gS A D;ksfd mls bl fMdzh ds rgr dHkh Hkh csn[ky ugh gksuk gS] ysfdu ps fdjk;s dh fMdzh fMdzhnkj eg;qu ds f[kykQ btjk; djok ldrk gS A vr% mls ;g ,rjkt is’k djuk vko’;d gqvk A^^
Filing of various aforesaid cases by Gangaram and Balchand also supports that the judgment-debtor Shyam Sunder is not, in fact, in possession and occupation of the suit plot for which the decree for ejectment under execution has been passed. On this ground alone, the revision petitions deserve to be dismissed as required under Proviso (b) of Sub-section (1) of Section 115 of the Code of Civil Procedure.
6. There is also a great force in the contention of the learned Counsel for the decree-holder Devi Singh that application dated August 3, 1988 of the judgment-debtor again raising objection regarding misdescription of the suit plot is barred Under Section 11, CPC. By Civil Procedure Code (Amendment) Act, 1976, explanation 7 has been added to Section 11, CPC providing that the provisions of this section shall also apply to execution proceedings. Para No. (c) at page 2 of the objection petition dated January 19, 1984 runs as under:
d fMdzh es fn;s x;s iMksl dh dksbZ tk;nkn ‘kgj tks/kiqj es ugh gS bl ‘kuk[r u gksus okyh tehu ckcr fMdzh vius vki es csekus o ufyVh gS A
The objection-petition, papers No. B-15/1-2, dated August 3, 1988 contains only one objection regarding the mis-description of the demised plot. The decree-holder filed his reply on August 4, 1988 clearly stating that the similar objection was duly taken in the objection-petition, papers No. B-l3/6-8, dated January 19, 1984 and it was not pressed during the arguments by the learned Counsel for the judgment-debtor-petitioner. No counter was filed by the judgment debtor. How ever, during arguments in this Court, the learned Counsel for the judgment-debtor-petitioner controverted this position. The reply of the decree-holder that this objection, quoted above, was not pressed finds support from the order of the executing court dated 2, 1988. In this order, the learned Munsif has dealt with all other objections and he has also discussed at length eight rulings relied upon by the learned Counsel for the judgment debtor and also one unreported judgment of this Court. If this objection would have been pressed, the executing court must have also decided it Admittedly, the order dated August 2, 1988 was not further challenged. As such the same objection about the mis-description of the demised premises could not be allowed to be raised again through application dated August 3, 1988. It may also be mentioned here that objection regarding the discrepancy in the description of the suit property was greatly agitated in the Civil Appeals Nos. 41 and 42 of 1987 filed by Gangaram and Bal Chand, decided by the Additional District Judge No. 1, Jodhpur on June 2, 1988 and it was repelled. The decree-holder and judgment-debtor were parties in the appeal No. 42/87 Bal Chand v. Devi Singh and Shyam Sunder. This decision also operated as res-judicata.
7. There is no force in the contention of the learned Counsel for the judgment-debtor-petitioner that the decree-under execution could not be amended. It is now well settled law that an accidental mistake in a decree pertaining to the description of suit property can be amended by the court in exercise of its powers Under Sections 151 and 152, CPC.
8. In Sheodan Singh v. Sanichara Kauer , it has been observed as follows:
In these circumstances we are of opinion that the High Court was right in holding that this is a case of mis-description only and that the identity of the property sold is well established, namely, that it is plot No 1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere mis-description which does not affect the identity of the property sold. The contention of the appellant’s, therefore, with respect to this plot must fail.
9. It has been observed in Samrendra v. Krishna Kumar , as follows :
Now it is well settled that there is an inherent power in the court which passed the judgment to correct the clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.
Reference of Aziz Ullah Khan v. Court of Wards, Shahjahnpur, , Beta Debi v Bon Behary Roy and Ors. Ruhulghani and Ors v. B Uma Shankar [AIR 1944 Oudh 5], Smt. Vidyavati Bai v. Smt. Prakash Vati Devi , Rania v. Smt. Kamla Devi v. Garangouda and Ors. [AIR 1976 Kar. 204]. N. Subramonia Iyer v. Joseph George [AIR 1959 Ker. 386), Mst, Anupa Kuer v. Yogendra Jha [AIR 1954 Fatna 108], Shahzad Khan v. Pt. Sheo Kumar, [AIR 1957 Allahabad 133] and Kirshna Podoval v. Lakshmi Nathiar and On may also be made here. The facts of Mst. Chanda v. Vimal Kanwar [1954 RLW 226=ILR 1953 Raj. 941, relied upon by the learned Counsel for the judgment-debtor-petitioner, are quite different and distinguishable. In it, the mistake in the description of the boundaries started from the PATTA and the Mortgage Deed, anterior to the suit and the description was entirely different on all the four sides. In the instant case, there was discrepancy in the recital of north and south boundaries only. There is no discrepancy in the paramount description of the building. Actually, public road exists towards the north and the building of Rajendra Singh, let out to Jangid and Co., exists towards the south but in the plaint, it was inadvertently mentioned that the building of Rajendra Singh, let out to Jagind and Co. exists towards the north and the public road is towards the south and consequently in the decree. The present case is exactly similar to Ganesh v. Sri Ram Lalaji Maharaja, . It has been observed in Sobala v. Jethmal (1961 RLW 352] at page 354 para4, as under:
On behalf of the applicants it was argued that these decisions cannot be considered to be good law in view of the D.B. decision of our court in Mst. Chandu v. Mst. Bilam Kanwar. I have carefully gone through this decision. A mistake had been made in describing the mortgaged property in the mortgage-deed in that case which was repeated in the plaint, the decree and the sale proclamation etc. Relying on Shujaat Mohd Khan v. Govind Behari it was held that a mistake anterior to the suit could not be corrected on an application Under Section 121, CPC and that the proper remedy of the aggrieved party was to institute a suit Under Section 31 of the Specific Relief Act. In the present case the mistake is sought to get corrected is not anterior to the suit. It is a mistake made in the giving the boundaries in the execution application which was repeated in the warrant of attachment the sale proclamation and the sale certificate, I see no reason why this mistake cannot be corrected on an application Under Section 151, CPC. It is in the ends of justice that this injury should be remedied and needless expense and inconvenience to parties avoided.
No prejudice has been caused to the defendant-petitioner by this amendment of the description of the suit plot.
10. There is no force in the correction of the learned Counsel for the judgment debtor Shyam Sunder take the orders under revision are null and void as they were passed without giving notice to the judgment-debtor petitioner. The judgment-debtor-petitioner has stated in para No. 3 of his application, papers No B-15/1-2, dated August 3, 1988 that neither an inquiry can be held regarding the boundaries of the suit plot mentioned in the decree nor they can be corrected and if the decree has wrongly been prepared, the only remedy to the decree-holder is to file a civil suit. In his reply, papers No. B-14/9-12 dated August 4, 1988, the decree-holder has categorically stated in para No. 3 that it is incorrect that no inquiry can be held and the decree cannot be corrected. In his reply, papers No. B-14/5-8. dated August 4, 1988 to the application of the decree-holder Paper No. B14/2A, the judgment-debtor baa stated in para 4 that the question before the executing court is about the mis-description of the suit plot in the decree under execution and the prayer of the judgment-debtor is only that the court cannot correct it. The learned Counsel for the judgment-debtor could not show as to what kind of notice was necessary to the judgment-debtor before passing the impugned orders in respect of the description and what more could be said in reply to it under these facts and circumstances of the suit premises. It has been observed in Pratap Singh v. Shri Krishna Gupta and Ors. para 3 as follows:
We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form.
It has been observed in Collector Land Acquisition, Anantnag v. Kantiji, as follows:
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done – It must be grasped that judiciary is respected not on account of its power to realise injustice on technical ground but because it is capable of removing injustice and is expected to do so.
11. The decree under execution clearly gives the paramount description of the suit plot. It specifically mentions that it is a plot in ‘Bhandari Building’ situated at Ist ‘A’ Road’ Sardarpura, Jodhpur. Order 7, Rule 3, CPC requires that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. It is thus clear that incorporation of boandaries in suit in respect of immovable property is not absolutely necessary if the immovable property can otherwise be identified. Even on the basis of the description as given in decree before its amendment, the suit property could well be identified. It is not the case of the judgment-debtor that there is another plot in the said ‘Bhandari Building’ which tally with the description of the suit plot as given in the unamended decree. It is also not his case that there is another plot in ‘Bhandari Building’ in his tenancy and occupation. As already observed above, the judgment-debtor-petitioner has categorically stated in his objection petition, papers No. B-13/6-8, dated January 19, 1984 that he is not in occupation and position of any plot or building situated on any road of Sardarpura, Jodhpur. Under these fact and circumstances, the suit plot was identifiable and so the amendment of the decree was not necessary.
12. The revision petition No 206/89 against the order dated August 12, 1988 was filed on May 11, 1988. Obviously, it is time barred. No condonation application has been moved. Limitation did not get extended by filing a review petition and the order dated December 20, 1988 passed on it Thus there is no force in the revision petitions.
13. The executed case is pending since 1979. The position of the suit plot could not be delivered to the decree-holder due to the institution of the various cases referred to in the para No. 2 (supra) and passing of stay orders therein. Ultimately, the stay orders stood vacated on the dismissal of the applications or cases. There is nothing on the record to indicate that the plaintiff-decree-holder has been paid any amount towards the mesne profits since the passing of the decree in the year 1978. The judgment-debtor-petitioner has stated in his first objection petition dated January 18, 1984, papers No. B-13/6-8, that the decree-holder is free to get his decree executed for the recovery of arrears of rent. In execution of his decree, the decree-holder has to face false and frivolous litigations one after the other instead of getting the possession of the suit plot. This reminds me the famous dictum of the Privy Council that the woe of a iitigant starts after he has obtained a decree. If again a stranger puts obstructions in the execution of the decree, the Executing Court will deal with him as laid down in Madan Lal v. Hans Raj, . Under these facts and circumstances of the case, it is necessary to direct the executing court to see that the decree-holder is put in possession of the suit plot as early as possible. In compliance with the order dated October 26, 1983, police help will be provided. Order for breaking opening the locks has already been passed by the executing court cm the back of the application, Papers No. B-13/5 dated November 1, 1983.
14. The revision petitions are dismissed with costs which are assessed at Rs. 1,000/- each. The execution court will promptly proceed further with the execution of the decree and will see that the decree-holder Devi Singh is put in actual and physical possession of the suit plot by April 30, 1990. Parties will appear before the Executing Court on March 17, 1990.