Shri. Sanjay Shankarrao Zade And ... vs Baburao Sitaram Zade
2017 Latest Caselaw 1273 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 WRIT PETITION NO. 2151 OF 2016


 1) Shri Sanjay Shankarrao Zade,
     Aged about 47 years, 
     Occupation - Business, 
  
 2) Smt. Uma Shankarrao Zade,
     Aged about 65 years, 
     Occupation - Household, 

 3) Abhay Shankarrao Zade,
     Aged about 42 years, 
     Occupation - Business, 
     All resident of Vivekanand Nagar,
     Wadgaon Ward, Chandrapur, 
     Tahsil and District Chandrapur.

 4) Sau. Surekha Sunil Tiple (Zade),
     Aged about 45 years, 
     Occupation - Household, 
     R/o Haveli Garden, Chandrapur,
     Tahsil and District Chandrapur.                ....       PETITIONERS

                     VERSUS

 Baburao Sitaram Zade,
 Aged about 85 years, 
 Occupation - Shopkeeper, 
 R/o Balaji Ward, Chandrapur, Tahsil
 and District Chandrapur.                           ....       RESPONDENT


 ______________________________________________________________
             Shri D. Pathak, Advocate for the petitioners, 
           Shri N.R. Bhishikar, Advocate for the respondent.
  ______________________________________________________________



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                               CORAM : Z.A. HAQ, J.

DATED : 29 MARCH, 2017.

th

ORAL JUDGMENT :

Heard Shri D. Pathak, Advocate for the petitioners and

Shri N.R. Bhishikar, Advocate for the respondent.

2. Rule. Rule made returnable forthwith.

3. The decree-holders had filed an application (Exhibit

No.47) before the executing Court praying that correction in respect of

description of the suit property be effected in the sale-deed executed

pursuant to the decree passed in Regular Civil Suit No.66/86 and

Regular Civil Suit No.14/1987. According to the decree-holders, the

survey number of the property in question should have been

mentioned as "12717" and not "13717". The executing Court rejected

this application.

The decree-holders filed the application (Exhibit No.49)

seeking review of the above order. This application is rejected by the

impugned order.

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The decree-holders being aggrieved by the above orders

have filed this writ petition.

4. The respondent/judgment-debtor has opposed the claim of

the petitioners/decree-holders on the ground that the prayer as made

by the decree-holders in the application (Exhibit No.47) cannot be

granted by the executing Court. According to the respondent/

judgment-debtor, if at all the decree-holders want to get the alleged

mistake corrected, they will have to seek modification of the decree

and unless the decree is modified the correction as sought by the

decree-holders cannot be carried out.

5. After considering the material placed on the record of the

petition and hearing the learned Advocates for the respective parties, I

find that there is no dispute about identity of the property. It being

undisputed that Survey No.12717 was also described by the

boundaries in the above referred civil suits, in my view, the hyper-

technical objection raised on behalf of the judgment-debtor cannot be

accepted, specially when it is not disputed that the mistake which is

sought to be corrected is of such a nature that it can be corrected in

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exercise of jurisdiction under Section 152 of the Code of Civil

Procedure. The Advocate for the petitioners/ decree-holders has

rightly relied on the judgment given by the Hon'ble Supreme Court in

the case of V. Rajendran and another vs. Annasamy Pandian (D)

through LRs. Karthyayani Natchiar in Civil Appeal No.861 of 2017

(MANU/SC/0094/2017), to support his submission that the

application (Exhibit No.47) filed by them should have been allowed.

6. In view of the above, following order is passed :

          (i)      The impugned orders are set aside. 
          (ii)     The application (Exhibit No.47) filed by the decree-holder
                   is allowed. 

(iii) The executing Court shall take steps to get the necessary corrections carried out in the description of the property in the sale-deed.

Rule made absolute in the above terms. In the

circumstances, the parties to bear their own costs.

Civil Application No.94/2017.

In view of disposal of the writ petition, the application

praying for amendment of the writ petition has become infructuous.

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The civil application is disposed accordingly.

JUDGE

adgokar