Karthiyayini vs R.Ramasubbu
2021 Latest Caselaw 17311 Mad

                                                                         CRP(MD).No.1146 of 2021

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 24.08.2021

                                                     CORAM

                           THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

                                          C.R.P. (MD).No.1146 of 2021


                    Karthiyayini                          : Petitioner / Petitioner / appellant

                                                   Vs.


                    1.R.Ramasubbu
                    2.K.Ramasubbu
                    3.K.Venkatraman
                    4.L.Ramasubbu
                    5.L.Athimoolam
                    6.V.Krishnammal
                    7.V.Gomathi @ Jeyasri
                    8.V.Bahawathi @ Jenani                   : Respondents / Defendants



                    PRAYER: Civil Revision Petition filed under Article 227 of the
                    Constitution of India to direct the I Additional District Court, Thoothukudi
                    to number the petition in I.A.No.....of 2021 in A.S.No.1 of 2014 filed to
                    rectify the mistake in the decree on the basis of the amended appeal
                    memorandum and amended plaint within a time frame fixed by this Court.




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https://www.mhc.tn.gov.in/judis/
                                                                        CRP(MD).No.1146 of 2021



                                   For petitioner     : Mr. H. Arumugam


                                                     ORDER

The Civil Revision Petition has been filed seeking orders to

direct the I Additional District Court, Thoothukudi to take the

un numbered petition in I.A.No... 2021 in A.S.No.1 of 2014 filed to rectify

the mistake in the decree on the basis of the Amended Appeal

Memorandum and Amended Plaint, on file within a time frame fixed by

this Court.

2. The revision petitioner is the appellant and he filed the

appeal challenging the Judgment and Decree passed by the Principal

Subordinate Court, dated 30.09.2013 made in O.S.No.34 of 2008.

3. During the pendency of the appeal, the appellant filed an

application in I.A.No.21 of 2015 to amend the schedule of properties and

the same was allowed on 21.09.2016. It is further evident that

consequentially Amended Appeal Memorandum and Amended Plaint were

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1146 of 2021

filed and thereafter, the appeal was disposed of, vide Judgment and Decree

dated 19.04.2017.

4. The learned counsel for the revision petitioner / appellant

would submit that the appellant has filed an execution petition and the

same was returned on the ground that description of the property shown in

the decree differs from the plaint as well as the amended plaint and appeal

memorandum, that therefore, the petitioner / appellant was constrained to

file an application to amend the decree and rectify the mistake before the

trial Court and that the said petition was returned stating that the entire

records were already submitted to the District Court for appeal and

directed to submit the petition before the Appellate Court. He would

further submit that the appellant has filed the petition before the Additional

District Court and the same was returned questioning the maintainability

and that the same was represented again, but the petition was kept pending

without numbering. The learned counsel would further submit that though

the petition was filed as early as on 10.02.2020, the same was not taken on

file so far.

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1146 of 2021

5. It is evident from the records that the Appellate Court has

permitted to amend the plaint and the appeal memorandum and that the

same were incorporated in the appeal memorandum as well in the plaint.

As rightly contended by the learned counsel for the revision petitioner, the

non-mentioning of the amended schedule of property in the Appellate

Court decree is a mistake committed by the trial Court while drafting the

decree. When the mistake committed by the Court is pointed out, the

concerned Court is duty bound to rectify the defect / mistake suo motu or

on getting a memo from the party, complaining such mistake. In the case

on hand, the revision petitioner has filed a petition under Section 152 CPC

for amending the Appellate Court decree by rectification of the defects

pointed out, the Appellate Court has returned the petition raising a query as

to how the petition is maintainable to amend the lower Court decree and

that even after representing the said petition clarifying that the appeal

decree alone to be amended, the Appellate Court, without numbering the

case, is keeping the petition pending. This Court is at loss to understand

as as to why the said petition, filed to rectify the mistake of the Courts, is

kept pending, without taking the same, on file nor passing any orders

thereon.

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1146 of 2021

6. Considering the above, appellate Court is to be directed to

take the petition on file if it is otherwise in order and to dispose of the

same, within a week from the date of receipt of a copy of this order, in

accordance with law.

7. In the result, the Civil Revision revision is allowed and the

learned I Additional District Judge, Tuticorin is directed to take the petition

on file, if it is otherwise in order, and to dispose of the same within a week

from the date of receipt of a copy of this order, in accordance with law. .

No costs. Consequently, the connected Miscellaneous Petition is closed.

24.08.2021

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Index : yes / No Internet : yes / No

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1146 of 2021

To

The I Additional District Court, Thoothukudi.

https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1146 of 2021

K.MURALI SHANKAR, J.

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C.R.P. (MD).No.1146 of 2021

24.08.2021

https://www.mhc.tn.gov.in/judis/