Delhi High Court

Nirmal Kaur vs Surjit Kaur & Ors. on 4 June, 2010

Author: Manmohan Singh

*          HIGH COURT OF DELHI : NEW DELHI

+          IA No.665/2010 in CS (OS) No.593/2006

%                     Judgment decided on : 4th June, 2010

Nirmal Kaur                                       ......Plaintiff
                      Through: Mr. Raman Kapur, Adv. with Mr. F.
                               Hasan, Adv.

                      Versus

Surjit Kaur & Ors.                                  .....Defendants
                      Through: Mr. H.L. Tikku, Sr. Adv. with
                               Mr. Rajesh Goyal, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    No

2. To be referred to Reporter or not?                 No

3. Whether the judgment should be reported            No
   in the Digest?

MANMOHAN SINGH, J.

1. The present application has been filed by the plaintiff under

Section 151 read with Section 152 of the Code of Civil Procedure, 1908

with the prayer that direction be issued in terms of the judgment/order

dated 23.12.2009 directing Sh. Y.D. Nagar, Local Commissioner to

divide the suit property into two equal halves as per his report dated

29.10.2007 and as per plan annexed thereto and allot one share to the

plaintiff and one share to the defendants either by agreement or by draw

of lots.

2. The present suit for partition and possession was filed for

property bearing No. C-18, Mansarover Garden, New Delhi. As per the

admitted fact in the pleadings the plaintiff on the one hand and

defendants on the other hand owned 50% share each of the property. A

preliminary decree on this admission was passed on 29.09.2008.

3. The defendants filed RFA(OS) 01/2009 challenging the

preliminary decree which was dismissed by a Division Bench of this

Court vide order dated 07.09.2009. Special Leave Petition in this matter

being SLP (Civil) No. 2140/2009 was also dismissed vide order dated

09.02.2009. Before passing the preliminary decree, the court appointed

Sh. Y.D. Nagar as Local Commissioner to suggest the division of the

property by metes and bounds. The Local Commissioner who is also an

Engineer submitted his report dated 29.10.2007 in which he opined that

the suit property measuring 611 Square Yards could be divided into two

equal halves measuring 305.5 Square Yards each by metes and bounds

from the front to the back horizontally from the centre, each party

getting 25 feet in the front and 14 feet at the rear with the complete

length of 141 feet. Accepting the report of the Local Commissioner, the

court passed the final decree on 23.12.2009 declaring that the plaintiff

and the defendants are entitled to 50% share each in the suit property

and the same be partitioned by metes and bounds as suggested by Sh.

Y.D. Nagar, Local Commissioner.

4. Paragraphs 21 and 23 of the judgment dated 23.12.2009 read

as under:

"21. Accordingly, after having gone through the entire gamut of the matter, pleadings and documents, I accept the report of the Local Commissioner. The suit property measuring 611 Sq. yards be divided by metes and bounds into two equal halves of 305.5 sq. yards each from the front to the back horizontally in the centre, each party getting 25 feet in the front and 14 feet at the rear with length of 141 feet.

22. ..................

23. Accordingly, the final decree is passed declaring that the plaintiff and all the defendants jointly are entitled to 50% share in the suit property bearing No. C-18, Mansarower Garden, New Delhi and the same shall be partitioned by metes and bounds as suggested by the Local Commissioner Mr. Y.D.Nagar and decree be drawn accordingly. All pending applications be disposed off. No costs."

5. The application of the plaintiff has been opposed by the

defendants mainly on the ground that such an application in a

decided/disposed of matter is not maintainable. It could have been filed

only during the pendency of the proceedings, therefore, the relief sought

by the plaintiff cannot be granted as the proceedings have been

terminated by passing of the final decree.

6. Mr. Tiku, learned Senior counsel for the defendants has

referred Section 2(1) and Section 2(2) of the Code of Civil Procedure in

support of his submission. He has also relied upon the judgment of the

Apex Court in the case of Maddineni Koteswara Rao Vs. Maddineni

Bhaskara Rao & Anr. reported in 2009 (IV) SLT 236, wherein in

paragraph 10 it has been held that a suit for partition stands disposed of

only with the passing of the final decree.

7. The next submission of the learned counsel for the

defendants is that the plaintiff, without paying the stamp duty, to

execute the decree by filing the present application under Section 151

and 152 of the Code of Civil Procedure which is not maintainable after

the passing of the final decree. In the present circumstances this court

has no power to invoke its inherent jurisdiction to allow the prayer made

in the application.

8. It is argued that since this court has already passed an order

for drawing of the final decree on stamp paper, if any order is passed as

prayed by the plaintiff in his application the same would be without

jurisdiction. Mr. Tikku referred to the settled law reported in Nazir

Ahmad Vs. King Emperor reported in AIR 1936 Privy Council 253 it

has been held :

"........The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the things must be done in that way or not at all. Other methods of performance are necessarily forbidden."

9. Learned counsel for the defendants has also referred the case

of Probhat Kumar Mukherjee Vs. Santa Ranjan Banerjee reported in

AIR 1957 Calcutta 375, wherein it has been held as under:

"........It is true that according to that decision a compromise of the nature we are dealing with not only declares the rights of several parties interested in the property but also allots each party. In my opinion, after such a compromise the parties there under would be precluded from questioning the allotments as amongst themselves, but no legal title would

accrue in favour of any party to the allotments made unless and until the final decree is formally engrossed on requisite stamped paper. The following sentence occurring towards the end of the above report will bear out the correctness of this proposition.

"The only effect of engrossment of the decree on stamped paper would be that it will be rendered legally effective which it is not until so engrossed."

In my judgment the legal title to premises No. 14, Iswar Ganguli Street has not yet accrued to the mother under the allotment made in the compromise decree because no final decree has yet been engrossed on necessary stamped paper".

10. On the other hand learned counsel for the plaintiff has argued

that the present application is very much maintainable in view of the

judgment and decree passed by this court. He has referred paragraph 21

and 23 of the judgment in this regard.

11. Learned counsel for the plaintiff has referred the judgment of

the Apex Court titled as Jayalakshmi Coelho Vs. Oswald Joseph

Coelho reported in (2001) 4 SCC 181 wherein it has been held that :

"In terms of S.152 CPC any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the Court. 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 S. 152 CPC 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 something 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 facts as to what was intended by the Court but unintentionally the same does mention in the order or the judgment or something which was intended to be there stands 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. It is to be confined to something initially intended but left out or added against such intention."

12. In support of his submissions, he has relied on another

judgment titled as Pratibha Singh & Anr. Vs. Shanti Devi Prasad &

Anr. on the same point.

13. After having gone through the submissions made by the

learned counsel for the parties as well as the decision referred by them,

this court is of the view that no correction/amendment/modification is

required in the final decree and judgment passed on 23 rd December,

2009 by this court. There is no clerical or arithmetical mistake in the

judgment and decree. The judgment and decree is very specific as is

clear in view of the finding given by this Court in paragraphs 21 and 23

of the judgment.

14. As regards the prayer of direction to Mr. Y.D. Nagar in order