Laxman Ramji Taske (Since Dead) ... vs Kewalabai Kisan Pawade And Others
2017 Latest Caselaw 4843 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                          Second Appeal No.5 of 2016


 Laxman Ramji Taske
 [since dead],
 through his legal representatives :

 [a]     Smt. Saraswati Laxman Taske,
         aged about 63 years,

 [b] Tukaram Laxman Taske,
     aged about 48 years,

 [c]     Prakash Laxman Taske,
         aged about 38 years,

         all residents of Shembalpimpri,
         Tq. Pusad, Distt. Yavatmal.          .....           Appellants.
                                                            Defendants.



                                   Versus


 1.     Kewalabai Kisan Pawade,
        aged about 62 years,
        resident of Kalamkonda,
        Tq. Kalamnuri,
        Distt. Hingoli.

 2.     Prayagbai Sambha Hajare,
        aged about 57 years,
        resident of Shembalpimpri,



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        Tq. Pusad,
        Distt. Yavatmal.

 3.     Punjabai Dhondba Gudal,
        aged about 52 years,
        resident of Kalamkonda,
        Tq. Kalamnuri,
        Distt. Hingoli.

 4.     Godavari Pandurang Hingade,
        aged about 47 years,
        resident of Talang,
        Tq. Hatgaon,
        Distt. Nanded.

 5.     Kachru Rama Modak,
        aged about 42 years,
        resident of Kalamkonda,
        Tq. Kalamnuri,
        Distt. Hingoli.                         .....        Respondents.
                                                             Plaintiffs.


                                *****
 Mr. A. R. Chavhan, Adv., for the appellants.

 Mr. Amol Deshpande, Adv., for respondent nos. 1 and 2.

                                     *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   21st July, 2017

 ORAL JUDGMENT:

01. Admit. The learned counsel for the parties have been heard

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on the following substantial question of law:-

"In view of the provisions of Order-XX Rule 6 of the Code of Civil Procedure, 1908, whether the decree of which execution was sought could alone have been amended without seeking an amendment to the judgment on the basis of which such decree was drawn?"

02. Facts relevant for deciding the aforesaid substantial

question of law are that the respondents are the original plaintiffs who

had filed suit for possession of area admeasuring 1 hectare 62 Are

bearing Survey No. 52, situated at Shembalpimpri along with a house

constructed thereon. The suit was decreed on 16 th March, 1992 and

the appeal filed by the original defendant was dismissed on 22 nd June,

1995. The original plaintiff then filed Regular Darkhast No. 8 of 1996;

but the same came to be withdrawn as it was noticed that the

description of the suit property was incorrect. The plaintiffs then

moved an application before the trial Court for correction of the

decree. This application was allowed and the suit property was shown

as situated in village Gaul instead of village Shembalpimpri. The order

passed by the executing Court allowing the amendment on 8 th April,

2011 was challenged before this Court by filing Writ Petition No. 3704

of 2011. On 5th December, 2011, the said Writ Petition was allowed

and the order passed by the executing Court was set aside. The

plaintiffs were granted liberty to file an application for amendment of

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the plaint along with the application for correction of the decree, if

permissible in law. Pursuant to that, the plaintiffs-decree-holders

again moved the trial Court and by order dated 10 th September, 2012,

the trial Court permitted the plaint as well as the decree to be

corrected.

03. This order was then challenged by the original defendant

no.1 in Regular Civil Appeal No. 2 of 2013. The appellate Court by its

judgment dated 17th August, 2015 dismissed the appeal and confirmed

the aforesaid order. Being aggrieved, the original defendant through

his legal heirs has filed this Second Appeal.

04. Shri Chavhan, learned counsel for the appellant, submitted

that in terms of provisions of Order-XX, Rule 6 of the Civil Procedure

Code, 1908 [for short, "the Code"], the decree that was sought to be

executed ought to agree with the judgment, on the basis of which the

decree was prepared. He submitted that without amending/making

any corrections in the judgment, only the decree had been amended.

While in the judgment, the suit property was described as being

located at village Shembalpimpri, the decree indicated that it was

located at village Gaul. Thus, without amending the judgment, the

decree was sought to be executed. That was not permissible and for

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that purpose, the learned counsel placed reliance upon the judgment

of the Honourable Supreme Court in Lakshmi Ram Bhuyan Vs. Hari

Prasad Bhuyan & others [ (2003) 1 SCC 197].

It was then submitted that even this amendment as sought

was barred by limitation in view of provisions of Article 137 of the

Limitation Act, 1963. The same ought not to have been allowed by the

trial Court. He, therefore, submitted that the impugned orders were

liable to be set aside.

05. Per contra, Shri Amol Deshpande, learned counsel for the

original plaintiffs supported the impugned orders. He submitted that

the defendant at no stage had raised the plea about the description of

the village where the suit property was situated. According to him,

after the decree was confirmed on merits, this objection was being

raised merely to frustrate the execution of the same. It was not in

dispute that the suit property was, in fact, located at village Gaul and

the suit being one for partition, both parties were aware of the subject-

matter of the dispute. The parties having gone to the trial on that

basis, it was not now permissible for the judgment debtor to seek to

defeat the decree on such technical counts. He referred to the

provisions of Section 152 of the Code to urge that correction of clerical

mistake of such nature was permissible. In that regard, he placed

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reliance on the decisions in [a] Tilak Raj Vs. Baikunthi Devi (D) by

L.Rs. [AIR 2009 SC 2136], [b] Srihari (dead) through LR. CH.

Niveditha Reddy Vs. Syed Maqdoom Shah & others [2015 (3)

Mh.L.J. 582] and [c] Master Construction Co. (P) Ltd. Vs. State of

Orissa & another [AIR 1966 SC 1047].

06. I have heard the learned counsel for the parties at length.

07. The suit being filed for partition and separate possession

and the decree having attained finality is not in dispute. It is further

not in dispute that the plaint and the decree now stand amended by

showing the suit property as located at village Gaul. It is only in the

judgment that the suit property is shown to be located at

Shembalpimpri.

08. Perusal of the judgment of the trial Court in Regular Civil

Suit No. 225 of 1985 indicates that it was not the stand of the

defendant that the suit property was located at village Gaul and not at

village Shembalpimpri, as stated in the plaint. It is also not their case

that under the garb of the aforesaid decree, some other property is

sought to be partitioned. Under provisions of Order-XX, Rule 6 of the

Code, the decree must agree with the judgment. It is to be noted that

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pursuant to the orders passed by the trial Court, the plaint and the

decree stand amended. Merely because the judgment of the trial

Court has not been corrected to indicate the correct location of the suit

property, that cannot be a ground to defeat the execution of the

decree. Under provisions of Section 152 of the Code, power has been

conferred on the Court to permit rectification of clerical and

typographical errors arising from any accidental slip or omission at any

point of time. That the joint family property is located at village Gaul

is not in dispute. The parties having contested the suit for partition

and description of the property not being made an issue, it would be a

travesty of justice to non-suit the plaintiffs on the ground that though

the plaint and decree indicate that the suit property is situated at

village Gaul, the decree cannot be executed as the property is

described to be located at village Shembalpimpri in the judgment. It

goes without saying that in the judgment, the relief has to be granted

as prayed for in the plaint. As a result of the plaint being corrected to

indicate the location of the suit property and the decree also having

been so corrected, it follows that the decree is executable on that

basis. The judgment can always be corrected in exercise of powers

under Section 152 of the Code as held in Tilak Raj [supra]. Hence, I do

not find that the impugned order is liable to be interfered on that

count. The substantial question of law is answered by holding that the

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decree in question can be executed by amending the judgment under

Section 152 of the Code.

09. In so far as the submission that the amendment as sought

was barred by limitation in view of Article 137 of the Limitation Act,

1963, is concerned, the same cannot be accepted. The correction of

the decree has been sought under Section 152 of the Code. Section

152 permits correction at any point of time. Article 137 would,

therefore, have no application. Hence, the judgment in Harinarayan

G. Bajaj & another Vs. Vijay Agarwal & others [2012 (4) ALL MR

628] does not support the case of the appellants.

10. In view of aforesaid, there is no merit in the Second Appeal.

It is, therefore, liable to be dismissed. Same is accordingly dismissed

with no order as to costs.

11. The trial Court shall in exercise of powers under Section 152

of the Code correct the judgment dated 16th March, 1992 so as to

indicate that the suit property is situated at village Gaul as per the

plaint.

Judge

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