Brijlal vs Lrs Of Late Lalchand S/O Gauri And ...
2021 Latest Caselaw 4357 MP

-1-                                              CR No.97/2020

               HIGH COURT OF MADHYA PRADESH:
                         BENCH AT INDORE
                     CIVIL REVISION NO.97/2020
               Brijlal s/o Thakurlalji Ranka & one another
                                   vs.
            Jagdishchandra s/o Lalchand Bairagi & others
16.08.2021: (Indore):
      Shri Nitin Phadke, learned counsel for the applicant.
      Heard.
      Applicants/decree holders have filed the present revision being
aggrieved by the order dated 20.11.2019 passed in MJC No.18/2019
whereby 6th Additional District Judge, Ujjain has dismissed the
application filed under section 151 & 152 of the CPC.
      Facts

of the case in short are as under:

Plaintiffs filed civil suit No.7A7A/03 in which a preliminary decree was passed on 19.12.2003 granting them 1/3rd share along with the defendants in house Nos.5/1317, 5/1247, 5/2167, 5/2147, 5/2146 & 5/2001 with further direction of appointment of commissioner under Order 21 Rule 18 of the CPC for partition of the aforesaid houses by metes and bounds. Since by way of alternate relief the plaintiffs sought cash amount in lieu of their share in suit property, hence the commissioner was directed to quantify the share of the plaintiffs in the houses so that the defendants may pay the aforesaid amount to the plaintiffs. Against the preliminary decree the first appeal filed by the defendants has been dismissed. Thereafter, vide judgment dated 23.02.2017 a final decree has been passed by the District Judge, Ujjain affirming the valuation of the share of the plaintiffs in each of the houses.

The applicants/plaintiffs filed an application under section 151 & 152 of the CPC seeking modification/correction in the decree on the ground that the commissioner has valued their share in each houses on the basis of the guidelines issued by the Collector of Stams and also on the basis of the current market value. In the preliminary decree the payment of share of plaintiffs as per "market value of the property" is

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not mentioned but plaintiffs are entitled for payment of their share in suit property based on market value. The aforesaid application was opposed by the defendants/judgment debtors by submitting that after passing the preliminary decree Shri Mahesh Joshi was appointed as commissioner and after his death Shri Nitin Upadhyaya was appointed as commissioner who submitted the report of valuation and mesne profit payable to the plaintiffs by the defendants. There is no typing or arithmetic error in the judgment and decree, therefore, the present application is not maintainable. While passing the final decree the District Judge has rightly valued the share of the plaintiffs on the basis of commissioner's report, therefore, the application is liable to be dismissed.

Vide order dated 20.11.2019 learned ADJ has dismissed the application by observing that there is only typing mistake in para-13 of the judgment mentioning the rent of Rs.288852.82 in place of Rs.2140532.08 from the period 1964 to June, 2013 and in para-15 mentioning the mesne profit of Rs.101948 in place of Rs.755481.91 till June, 2013 on the basis of the Collector rate and directed for correction in para-13, 17(va), 19(c) & (e) and closed the case, hence the present revision before this Court.

I have heard Shri Nitin Phadke, learned counsel for the applicant at length.

The scope of section 151 & 152 CPC is very limited to the extent of correction of typographical error in the judgment and decree. Vide preliminary decree the competent court has only directed for payment of the amount in lieu of the share of the plaintiffs in the suit properties on the basis of valuation done by the commissioner. The commissioner has valued the share of the plaintiff in the property on the basis of Collector rate as well as the market rate and the learned District Judge while passing the final judgment and decree on 23.02.2017 has valued the share of the plaintiffs on the basis of the valuation done on the Collector rate, therefore, if the plaintiff is aggrieved by the judgment and decree then the remedy was to file a first appeal instead of filing the application under section 151 & 152

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CPC. Learned trial Court has rightly allowed the application partly on the basis of the typographical mistake and not on the basis of the mode of valuation of the share of the plaintiffs.

There is no ground to interfere in the impugned order. Accordingly, the revision petition is dismissed.

(VIVEK RUSIA) JUDGE Digitally signed by HARI KUMAR C G NAIR hk/ Date: 2021.08.17 19:05:19 +05'30'