Bombay High Court
Satyawan Dhondi Pawar vs Shishupal Dhondi Pawar And Ors on 13 March, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:11891
wp 15669 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.15669 OF 2022
Satyawan Dhondi Pawar ... Petitioner
versus
Shishupal Dhondi Pawar and Ors. ... Respondents
WITH
INTERIM APPLICATION NO.2741 OF 2025
Satyawan Dhondi Pawar ... Applicant
versus
Shishupal Dhondi Pawar and Ors. ... Respondents
Mr. Vishwanath S. Talkute, for Petitioner/Applicant.
Mr. Ajit V. Alange, for Respondent No.1.
Mr. Graham Francis, for Respondent Nos.3, 4, 5A to 5D.
CORAM: N.J.JAMADAR, J.
DATE : 13 MARCH 2025
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the parties,
heard finally.
2. This Petition under Article 227 of the Constitution of India assails the
legality, propriety and correctness of an order dated 14 March 2022 passed by
the learned Civil Judge, Jr. Division, Sangola, whereby the application
preferred by the Petitioner to correct the judgment and decree passed in
Regular Civil Suit No.5 of 1979 so as to determine and partition the share of
the applicant and the co-defendants, came to be rejected.
wp 15669 of 2022.doc
3. Respondent No.1 instituted a suit for partition and separate possession
in respect of agricultural lands bering Block Nos.40, 90, 109, 127, 128, 141,
145, 146/1,2 and 152/1B situated at Villages Haldahiwadi and Shirbhavi,
house property situated at Village Haldahiwadi and the cash amount. The suit
proceeded ex-parte against Defendant No.3 (the Petitioner herein) and the
Defendant Nos.2, 4, 5B, 7 and 8.
4. By a judgment and order dated 6 March 1992, the trial Court partly
decreed the suit. It was declared that the Plaintiff was entitled to partition and
separate possession of his 11/70 share in the suit lands bearing Block
Nos.40, 90, 127, 128, 141, 145, 146/1, 2 and 152/1B and the house property
and the amounts of Rs.1,000/- and Rs.304/- deposited in District Central Co-
op. Bank, Sangola. The suit came to be dismissed qua property bearing
Block No.109.
5. Aggrieved, Defendant Nos.1 and 8 to 10 preferred an appeal being Civil
Appeal No.68 of 1992. By a judgment and order dated 21 September 1999,
the said appeal came to be dismissed.
6. The decree came to be executed qua the house property. For partition
of the agricultural lands, the decree was sent to the Collector. The Collector
proposed partition and prepared a Partition Table so as to carve out 11/70
share of the Plaintiff.
7. The Petitioner preferred an application for amendment in the judgment
wp 15669 of 2022.doc
and decree so as to determine the share of the Defendants. It was contended
that, since the suit was for partition and separate possession of the joint
family properties under the provisions of Order XX Rule 18 of the Code of
Civil Procedure, 1908, the Court ought to have declared the shares of all the
parties who were entitled to partition. Thus, the mistake which has crept in
the decree be corrected and the share of all the Defendants who were entitled
to partition in the agricultural lands be declared, and, accordingly, the decree
be executed.
8. Respondent No.1 resisted the application.
9. By the impugned order, the learned Civil Judge was persuaded to reject
the application observing, inter alia, that in the judgment passed in RCS No.5
of 1979, the Court had not at all determined the shares of the other persons
entitled to the share in the agricultural lands. Therefore, the defect that has
occurred in the judgment and decree in RCS No.5 of 1979 cannot be said to
be a clerical or arithmetical mistake which can be corrected by invoking the
powers under Sections 151, 152 and 153 of the Code.
10. Mr. Talkute, learned Counsel for the Petitioner, submitted that there was
a clear omission on the part of the trial Court in passing the decree in RCS
No.5 of 1979. It was incumbent upon the Court to decide the shares of the
Defendants as well, in the suit property. Since every co-sharer is a Plaintiff in
a suit for partition, the trial Court could not have rest content with declaring
wp 15669 of 2022.doc
the share of the Plaintiff alone. The fact that the Petitioner had not preferred
an appeal against the said decree and judgment, according to Mr. Talkute, is
of no significance. There is no impediment in correcting the decree even at
this stage before it is executed.
11. To buttress these submissions, Mr. Talkute placed reliance on the
judgment of this Court in the case of Shashikala Namdeorao Phad and Anr.
V/s. Avinash Namdeorao Phad and Anr.1, an order of this Court in the case of
Hirabai Rangrao More V/s. Chandrakalabai Wasudeo Bhande2 and the
judgment of the Andhra Pradesh High Court in the case of Tandra
Satyanarayana Rao V/s. Tandra Paparao and Ors.3.
12. Mr. Alange, learned Counsel for the Respondent No.1 -Plaintiff
countered the submissions of Mr. Talkute. It was urged that the Plaintiff has
been deprived of the fruits of the decree, though the suit was instituted in the
year 1979. The Petitioner has been in possession of all the agricultural
lands. Thus, the Petitioner intends to perpetuate his possession by filing
objections in the execution proceeding, though the decree in respect of house
property has been execued.
13. Mr. Alange would urge that the amendment sought in the decree cannot
be said to be one of correction of a arithmetical or clerical error or accidental
slip or omission. The Trial Court had not determined the shares of other co-
3 1997 SCC Online AP 81
wp 15669 of 2022.doc
sharers except the Plaintiff. That exercise cannot be done by way of
amendment in the decree. An endeavour was made by Mr. Alange to urge
that the proposed amendment would be beyond the scope of the powers
conferred on the Court under Section 152 of the Code. Reliance was placed
on the judgment of the Supreme Court in the case of State of Punjab V/s.
Darshan Singh4.
14. Mr. Alange further urged that even resort to the inherent power under
Section 151 of the Code may not be permissible. To this end, reliance was
placed on the decision of the Supreme Court in the case of My Palace
Mutually Aided Co-op. Society V/s. B. Mahesh and Ors.5.
15. Mr. Francis, learned Counsel for Respondent Nos.3, 4, 5A to 5D
supported the prayer for determination of the shares of the other co-sharers.
16. Incontrovertibly, Respondent No.1 had instituted a suit for partition and
separate possession of the suit properties asserting that those properties
were joint family properties. Dhondi Bapu Pawar - Defendant No.5, was the
father of Shishupal - the Plaintiff; Gowardhan, Samadhan, Satyanarayan and
Abhiman - Defendant Nos.1 to 4 respectively. Godabai - Defendant No.6
was the mother of the Plaintiff and Defendant Nos.1 to 4. Rajabai, Sindubai,
Changunabai and Thakubai, who were impleaded as Defendant Nos.5A to
5D, were the daughters of Dhondi and Godabai. Dhondi passed away during
4 2004(2) Mh.L.J. 565
5 Civil Appeal No.5784 of 2022 dated 23 August 2022
wp 15669 of 2022.doc
the pendency of the suit.
17. After returning findings regarding the character of the suit properties,
the learned Civil Judge held that had the partition taken place during the life
time of Dhondi, the Plaintiff would have been entitled to 1/7th share in the
joint family properties. Upon the demise of Dhondi, the Plaintiff is entitled to
get his 1/7 share plus 1/70 share received from his father i.e. total 11/70 share
by way of partition and separate possession. Accordingly, the decree came to
be passed.
18. Under the provisions of Order XX Rule 18 of the Code, where the Court
passes a decree for the partition of property or for the separate possession of
a share therein, if and in so far as the decree relates to an estate assessed to
the payment of revenue to the Government, the decree shall declare the
rights of the several parties interested in the property, but shall direct such
partition or separation to be made by the Collector, or any gazetted
subordinate of the Collector deputed by him in this behalf, in accordance with
such declaration and with the provisions of Section 54 of the Code. The trial
Court while passing a decree in RCS No.5 of 1979 was, therefore, required to
determine and declare the rights of other co-sharers who were entitled to a
share in the event of the partition of the suit lands. However, the trial Court
had declared the share of the Plaintiff alone. The omission to declare the
shares of the co-sharers is, thus, evident.
wp 15669 of 2022.doc
19. In the case of Shashikala Namdeorao Phad (supra), on which reliance
was placed by Mr. Talkute, the trial Court had declared the shares of the
parties in the body of the judgment. However, in the operative portion of the
order, the shares were incorrectly stated. In that backdrop, this Court held
that in exercise of the powers under Section 152 of the Code, decree could
have been corrected.
20. In the case of Hirabai Rangrao More (supra), the issue was of
correction in the area of the property in respect of which the decree was
passed.
21. The judgment of the Andhra Pradesh High Court in the case of Tandra
Satyanarayana Rao (supra) also involved the question of the correction in the
decree, especially in the operative portion where the shares of parties were
entitled to were incorrectly mentioned, though in the body of the judgment, the
shares of the parties were correctly determined. In such a factual backdrop,
placing reliance on the decision of the Supreme Court in the case of
Samarendra V/s. Krishna Kumar6, it was held that the decree could have
been amended by resorting to the power under Section 152 of the Code.
22. It is true, in the case at hand, the trial Court had not declared the
shares of other co-sharers, as was the case in the decisions in Shashikala
Namdeorao Phad (supra) and Tandra Satyanarayana Rao (supra). The trial
6 AIR 1967 SC 1440
wp 15669 of 2022.doc
Court had determined the share of Plaintiff alone. However, implicit in the
said determination is the determination of the shares of other co-sharers who
were entitled to partition in the suit lands. From the perusal of the judgment of
the trial Court in RCS No.5 of 1979, it becomes evident that the trial Court had
determined 1/7 share of the Plaintiff by allotting one share each to Dhondi -
Defendant No.5, and Godabai - Defendant No.6, and their five sons i.e.
Shishupal - Plaintiff, and Defendant Nos.1 to 4. After the demise of Dhondi,
however, it seems, the share of Dhondi was partitioned amongst the Godabai,
the widow, five sons, and four daughters i.e. Defendant Nos.5A to 5D, and,
thus, an additional 1/70 share was allotted to the Plaintiff aggregating to total
11/70 share in the suit properties. Thus, the executing Court could not have
rejected the application on the premise that in the judgment in RCS No.5 of
1979, since the shares of other co-sharers were not determined, it could not
have corrected the decree.
23. Section 152 of the Code reads as under:
"Section 152. Amendment of judgments, decrees or orders.
--Clerical or arithmetical mistakes in judgments, decrees or
orders or errors arising therein from any accidental slip or
omission may at any time be corrected by the Court either of its
own motion or on the application of any of the parties."
24. On a plain reading of the text of Section 152, it becomes evident that
the Court is empowered to correct the clerical or arithmetical mistakes in
wp 15669 of 2022.doc
judgments, decrees or orders or errors arising therein from any accidental slip
or omission. The use of the expression 'may' emphasises that the power is
discretionary and in a sense enabling in nature. Likewise, the use of the
expression, "at any time" indicates that the stage of the proceeding does not
matter. Such a correction can be made at any time. The use of the
expression "either of its own motion or on the application," underscores the
legislative intent that it was necessary to empower the Court to correct its
record suo motu or on the application of any of the parties.
25. The aforesaid expressions of wide amplitude, however, do not imply
that the power conferred on the Court under Section 152 is in the nature of
review. The corrections, which can be legitimately made by the invoking
Section 152 are only those which fall in the category of, "clerical or
arithmetical mistakes" or "errors arising from accidental slip or omission". Any
correction, which touches upon merits of the case or adds to or substracts
from the relief that has been denied or granted, as the case may be, falls
beyond the purview of Section 152 of the Code. On a true construct, the
avowed purpose of vesting of the general power in the Court to amend its
judgment, decree or orders, is to ensure that the act of the Court does not
cause prejudice to the parties. A reference to few judgments of the Supreme
Court would illuminate the path.
wp 15669 of 2022.doc
26. In the case of State of Punjab vs. Darshan Singh7 the Supreme Court
expounded the nature and import of the power contained in Section 152 of the
Code as under :
"12. Section 152 provides for correction of clerical or arithmetical
mistakes in judgments, decrees or orders or errors arising therein
from any accidental slip or omission. The exercise of this power
contemplates the correction of mistakes by the Court of its ministerial
actions and does not contemplate of passing effective judicial orders
after the judgment, decree or order. The settled position of law is that
after the passing of the judgment, decree or order, the same becomes
final subject to any further avenues of remedies provided in respect of
the same and the very Court or the tribunal cannot, on mere change
of view, is not entitled to vary the terms of the judgments, decrees and
orders earlier passed except by means of review, if statutorily
provided specifically therefor and subject to the conditions or
limitations provided therein. The powers under Section 152 of the
Code are neither to be equated with the power of review nor can be
said to be akin to review or even said to clothe the Court concerned
under the guise of invoking after the result of the judgment earlier
rendered, in its entirety or any portion or part of it. The corrections
contemplated are of correcting only accidental omissions or mistakes
and not all omissions and mistakes which might have been committed
by the Court while passing the judgment, decree or order. The
omission sought to be corrected which goes to the merits of the case
is beyond the scope of Section 152 as if it is looking into it for the first
time, for which the proper remedy for the aggrieved party if at all is to
file appeal or revision before the higher forum or review application
before the very forum, subject to the limitations in respect of such
review." (emphasis supplied)
7 2004(1) SC 328.
wp 15669 of 2022.doc
27. In the case of Jayalakshmi Coelho vs. Oswald Joseph Coelho 8 the
legal position was enunciated as under :
"13. So far legal position is concerned, there would hardly be
any doubt about the proposition that in terms of Section 152 C.P.C.,
any error occurred in the decree on account of arithmetical or clerical
error or accidental slip may be rectified by the court. The principle
behind the provision is that no party should suffer due to mistake of
the court and whatever is intended by the court while passing the
order or decree must be properly reflected therein, otherwise it would
only be destructive to the principle of advancing the cause of
justice.....
14. As a matter of fact such inherent powers would generally
be available to all courts and authorities irrespective of the fact
whether the provisions contained under Section 152 C.P.C. may or
may not strictly apply to any particular proceeding. In a matter where
it is clear that something which the Court intended to do but the
same was accidentally slipped or any mistake creeps in due to
clerical or arithmetical mistake it would only advance the ends of
justice to enable the Court to rectify such mistake. But before
exercise of such power the Court must be legally satisfied and arrive
at a valid finding that the order or the decree contains or omits some
thing which was intended to be otherwise that is to say while passing
the decree the court must have in its mind that the order or the
decree should be passed in a particular manner but that intention is
not translated into the decree or order due to clerical, arithmetical
error or accidental slip. The facts and circumstances may provide
clue to the fact as to what was intended by the court but
unintentionally the same does not find mention in the order or the
judgment or something which was not intended to be there stands
8 2001(2) SC 181.
wp 15669 of 2022.doc
added to it. The power of rectification of clerical, arithmetical errors
or accidental slip does not empower the court to have a second
thought over the matter and to find that a better order or decree
could or should be passed.. There should not be re-consideration of
merits of the matter to come to a conclusion that it would have been
better and in the fitness of things to have passed an order as sought
to be passed on rectification. On a second thought court may find
that it may have committed a mistake in passing an order in certain
terms but every such mistake does not permit its rectification in
exercise of Courts inherent powers as contained under Section 152
C.P.C. It is to be confined to something initially intended but left out
or added against such intention.
(emphasis supplied)
28. In the case of Niyamat Ali Molla vs. Sonargon Housing Co-
operative Society Ltd. and ors.9 the nature of the power of the Court to
correct the record of the Court was expounded by the Supreme Court as
under :
"19. Code of Civil Procedure recognizes the inherent power of
the court. It is not only confined to the amendment of the judgment or
decree as envisaged under Section 152 of the code but also inherent
power in general. The courts also have duty to see that the records
are true and present the correct state of affair. There cannot,
however, be any doubt whatsoever that the court cannot exercise the
said jurisdiction so as to review its judgment. It cannot also exercise
its jurisdiction when no mistake or slip occurred in the decree or
order. This provision, in our opinion, should, however, not be
construed in a pedantic manner. A decree may, therefore, be
corrected by the Court both in exercise of its power under Section
9 (2007) 13 SCC 421.
wp 15669 of 2022.doc
152 as also under Section 151 of the Code of Civil Procedure. Such a
power of the court is well recognized."
(emphasis supplied)
29. Mr. Alange was justified in canvassing a submission that the Plaintiff
has been struggling to get his share in the joint family properties since the
year 1979. This Court could have permitted the partition and delivery of
possession of the separate share of the Plaintiff, while remitting application
back to the executing Court to determine the shares of the rest of the parties
who are entitled to the share in a joint family properties. However, there is a
significant development in law, which may be required to be considered by the
Court while deciding share of the other parties, especially the daughters of
Dhondi i.e. Defendant Nos.5A to 5D.
30. The trial Court as well as the Appellate Court have proceeded on the
premise that the properties described in paragraph 1 of the plaint were the
ancestral properties. In view of the amendment to Section 6 of the Hindu
Succession Act, 1956 with effect from 9 September 2005, the status of
coparcener has been conferred on the daughters born before or after the
amendment, in the same manner as son with same rights and liabilities.
31. A reference to a three judge Bench decision of the Supreme Court in
the case of Vineeta Sharma V/s. Rakesh Sharma and Ors. 10 would be
10 AIR 2020 SC 3717
wp 15669 of 2022.doc
apposite. The Supreme Court has, inter alia, held that the expression used in
explanation to Section 6(5), 'partition effected by a decree of a court' would
mean giving of final effect to actual partition by passing the final decree, only
then it can be said that a decree of a court effects partition. A preliminary
decree declares shares but does not effect the actual partition, that is effected
by passing of a final decree; thus, statutory provisions are to be given full
effect, whether partition is actually carried out as per the intendment of the Act
is to be found out by Court.
32. In paragraph No.129, the Supreme Court culled out the principles, as
under :
"129. Resultantly, we answer the reference as under :
(1) The provisions contained in substituted Section 6 of the
Hindu Succession Act, 1956 confer status of coparcener on the
daughter born before or after amendment in the same manner as
son with same rights and liabilities.
(2) The rights can be claimed by the daughter born earlier
with effect from 9.9.2005 with savings as provided in Section 6(1) as
to the disposition or alienation, partition or testamentary disposition
which had taken place before 20th day of December 2004.
(3) Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on 9.9.2005.
(4) The statutory fiction of partition created by proviso to
Section 6 of the Hindu Succession Act, 1956 as originally enacted
did not bring about the actual partition or disruption of coparcenary.
The fiction was only for the purpose of ascertaining share of
deceased coparcener when he was survived by a female heir, of
Class-I as specified in the Schedule to the Act of 1956 or male
wp 15669 of 2022.doc
relative of such female. The provisions of the substituted Section 6
are required to be given full effect. Notwithstanding that a
preliminary decree has been passed the daughters are to be given
share in coparcenary equal to that of a son in pending proceedings
for final decree or in an appeal." (emphasis supplied)
33. In view of the aforesaid enunciation of law, the Court would be
required to consider the share to which Defendant Nos.5A to 5D would be
entitled to in the joint family property. Therefore, the issue of determination of
the shares of the other co-sharers / defendants ought to be decided by the
executing Court. Resultantly, the Writ Petition deserves to be allowed.
34. Hence, the following order.
ORDER
(i) The Writ Petition stands allowed.
(ii) The impugned order dated 14 March 2022 stands quashed and
set aside.
(iii) The application for determination of the shares of the parties
entitled to the partition of the agricultural lands stands remitted to the
executing Court for afresh determination in the light of the aforesaid
observations.
(iv) The executing court is requested to decide the application and
also execution petition as expeditiously as possible and preferably within a
period of six months from the date of communication of this order.
wp 15669 of 2022.doc
(v) Rule made absolute to the aforesaid extent.
(vi) No costs.
(vii) In view of the disposal of the Writ Petition, Interim Application
No.2741 of 2025 also stands disposed.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 13/03/2025 19:24:12
