THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.1116 of 2019
ORDER:
This revision, under Section 115 CPC, is preferred against the order, dated 25.01.2019, passed in I.A.No.1321 of 2018 in O.S.No.75 of 2009 on the file of the Court of Senior Civil Judge, Avanigadda, filed under Sections 151 and 152 to amend the decree by attaching the claim B schedule property to the decree.
2. Heard Sri Narasimha Rao Gudiseva, learned counsel appearing for the revision petitioner/defendant and Sri Y. Ramatirtha, learned counsel appearing for the respondent/plaintiff.
3. The suit is filed for partition in which the defendant filed counter claim. In fact, no issue No.3 was framed. However, the counter claim was dealt with by framing point for consideration at para No.19 as follows:
"Now, an important question for consideration is whether the counter claim schedule properties can be partitioned as prayed by the defendant?
And, while passing the judgment, the trial Court observed in para 29, on issue No.3, as follows:
"Issue no.3. For the above reasons, this Court holds that the plaint schedule properties in O.S.No.75 of 2009 are alone can be partitioned; this Court makes it clear that the counter claim, 2 BSB, J C.R.P.No.1116 of 2019 schedule properties cannot be partitioned as prayed for defendant. I find this issue accordingly."
However, in the result portion in para No.30 of the judgment, the trial Court did not mention regarding disposal of counter claim and it dealt with only result in the suit regarding passing of preliminary decree and mesne profits. Thus, the decree was drafted only in respect of the suit reliefs and no such decree was drafted in relation to dismissal of counter claim.
4. When the defendant preferred appeal against dismissal of counter claim, the appeal was not numbered by the appellate court for want of filing the copy of the decree. Then, the defendant filed I.A.No.1321 of 2018 to include the counter claim 'B' schedule property in the decree prepared in respect of the suit reliefs. As such, the trial Court passed the order impugned in the revision holding that the decree relating to counter claim 'B' schedule property cannot be attached to the decree in O.S.No.75 of 2009, and therefore, the application is misconceived and must fail.
5. It is noticed that since no express result was passed in para No.30 of the judgment in relation to dismissal of counter claim though a finding is given in para No.29, no separate decree was drafted in relation to dismissal of counter claim. Instead of asking the trial Court to amend the judgment incorporating the result in relation to counter claim and praying separate decree for counter 3 BSB, J C.R.P.No.1116 of 2019 claim, the defendant prayed only to attach the 'B' schedule property to the decree in relation to the suit reliefs.
6. Both the judgment in O.S.No.75 of 2009 and the order in I.A.No.1321 of 2018 were passed by the same Presiding Officer. When an inconsistency is noticed, the trial Court ought to have corrected the error instead of dismissing the petition.
7. Section 152 CPC empowers a Court to amend the judgments, decrees or orders on its own motion or on an application of any of the parties, when there are arithmetic mistakes or errors arising from any accidental slip or omission.
8. In the present case, there is an accidental omission in incorporating the result on 'counter claim' in the judgment in O.S.No.75 of 2009 and consequently, no decree was drafted. Therefore, it is for the trial Court to correct the result portion in the judgment, dated 20.09.2018, passed in O.S.No.75 of 2009 and the counter claim therein suitably be incorporated in consonance with the finding in para No.29 and thereafter, draft a separate decree in relation to the counter claim as well.
9. Accordingly, the Civil Revision Petition is allowed, setting aside the order, dated 25.01.2019, of the Senior Civil Judge, Avanigadda, passed in I.A.No.1321 of 2018 in O.S.No.75 of 2009 and the trial Court is directed to correct the result portion in the 4 BSB, J C.R.P.No.1116 of 2019 judgment, dated 20.09.2018, passed in O.S.No.75 of 2009, duly incorporating the finding on the counter claim suitably in consonance with the finding in para No.29, and thereafter, draft a separate decree in relation to the counter claim as well.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this revision shall stand closed.
_________________ B. S. BHANUMATHI, J 21-12-2022 RAR