Dhanaji Ganpati Gaikwad vs Namdeo Digambar Gaikwad
2011 Latest Caselaw 183 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION




                                                                             
                     CIVIL WRIT PETITION NO. 8950 OF 2010




                                                     
    Dhanaji Ganpati Gaikwad
    and others                                 ...            Petitioners
               Versus
    Namdeo Digambar Gaikwad
    and others                                 ...            Respondents




                                                    
    Mr. Umesh R. Mankapure, for the petitioners

                                     CORAM: R. M. SAVANT, J.

DATED : 8th December, 2011 P.C. :

1. In the above petition, notice came to be issued on 14th March,

2011 indicating that the above Writ Petition would be taken up for final

disposal at the stage of admission. Though respondents have been

served, none appears on behalf of the respondents. Hence, in terms of

the said notice, the petition is taken up for final hearing. Hence, Rule,

made returnable forthwith and heard.

2. The order challenged in the above petition, filed under Article

227 of the Constitution of India, is the one dated 30 th July, 2010 by

which order the application filed by the original plaintiffs for correction

of the decree by invoking Section 152 of the Code of Civil procedure

came to be rejected. The rejection is on the ground that the correction

sought would not fall within the ambit of the said provision.

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3. It is not necessary to burden this order with unnecessary facts.

Suffice it to say that the petitioners had filed Regular Civil Suit No. 84 of

2006 for partition and separate possession of the ancestral lands. One

of the lands mentioned was Gat No. 950 amongst other lands

mentioned in paragraph no.1 of the plaint. The said Gat No. 950

admeasuring 1 Hectare and 81 Ares was incorporated in the plaint as

one of the suit properties on the basis of the 7/12 extract which the

petitioners were issued by the Talathi as the land belonging to their

family. The parties went on trial. In so far as the said Gat No. was

concerned, it appears that no objection was raised on behalf of the

defendants also. The suit ultimately came to be decreed by the

judgment and order dated 6th November, 2006. The said decree was

thereafter put in execution and during the course of the execution

proceedings it was realised that Gat No. 950 was erroneously mentioned

as one of the suit properties instead of Gat No. 970. The petitioners, on

getting the 7/12 extracts of Gat No. 950 as well as of Gat No. 970 and

the certificates dated 15th December, 2006 issued by the Gaon Kamgar

Talathi, realised that the said Gat No. 950 was wrongly mentioned

instead of Gat No. 970 which is their ancestral property. The petitioners,

therefore applied for correction of the decree by filing the instant

application Exh.1, by having recourse to Section 152 of the Code. The

said application, as indicated herein above, came to be rejected on the

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ground that the correction sought by the petitioners was not a clerical or

arithmetical mistake which would fall within the ambit of Section 152

of the Code as the plaint discloses that it was Gat No. 950 and not 970.

4. I have heard the learned counsel for the petitioners, Shri

Mankapure. The learned counsel, in so far as the powers vested in the

Court under Section 152 are concerned, relied upon the judgment of

the Apex Court reported in the case of Tilak Raj Vs. Baikunthi Devi

(D)by L.Rs., reported in 2009 (4) Bom.C. R.570. The facts in the

said case was the decree carried wrong property number which was

revealed during the course of execution. Property mentioned was

Property No. 25R/52 instead of correct property No.26R/52. The Apex

Court, in view of the fact that there was no rebuttal evidence in the Suit

that it was not property No. 25R.52, came to the conclusion in the said

case that the mistake was clerical in nature which could have been

corrected on applying of the provisions of Section 152 of the Code.

The Apex Court stated that the remedy if any available to the appellant

was to apply for the amendment of the decree for correcting the clerical

mistake. The learned counsel would contend that the facts of the case

before the Apex Court are almost identical to the facts in the instant

case. The learned Counsel submitted that the original 7/12 extracts of

Gat No. 950 and Gat No. 970 were issued to the plaintiff by the Gaon

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Kamgar Talathi on 17th September, 2010 that is just prior to the filing of

the application. The said documents unmistakably disclose that it is Gat

No. 970 which is of the ownership of the family of the

petitioners/plaintiffs and in so far as Gat No. 950 is concerned, it is of

the ownership of one Sukdeo Tukaram Gaikwad who has no connection

with petitioners' family.

5. In the context of the aforesaid facts and applying the law laid

down by the Apex Court in the judgment supra, in my view, the

impugned order dated 30th July, 2010 would have to be quashed and

set aside and is accordingly quashed and set aside and the application

for correction of the decree for substituting Gat No.950 by Gat No. 970

would resultantly have to be allowed. The Executing Court is directed to

amend and correct the decree accordingly. The original 7/12 extracts as

tendered by the learned counsel for the petitioners are taken on record

and marked 'X' and 'Y' for identification. Rule is accordingly made

absolute in the aforesaid terms with no order as to costs.

(R. M. SAVANT, J.)