IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 5 of 2016
Decided On: 21.07.2017
Laxman Ramji Taske and Ors.
Kewalabai Kisan Pawade and Ors.
Hon’ble Judges/Coram:A.S. Chandurkar, J.
Citation:2017(6) MHLJ 224
1. Admit. The learned counsel for the parties have been heard on the following substantial question of law:-
“In view of the provisions of Order-XX Rule 6 of the Code of Civil Procedure, 1908, whether the decree of which execution was sought could alone have been amended without seeking an amendment to the judgment on the basis of which such decree was drawn?”
2. Facts relevant for deciding the aforesaid substantial question of law are that the respondents are the original plaintiffs who had filed suit for possession of area admeasuring 1 hectare 62 Are bearing Survey No. 52, situated at Shembalpimpri along with a house constructed thereon. The suit was decreed on 16th March, 1992 and the appeal filed by the original defendant was dismissed on 22nd June, 1995. The original plaintiff then filed Regular Darkhast No. 8 of 1996; but the same came to be withdrawn as it was noticed that the description of the suit property was incorrect. The plaintiffs then moved an application before the trial Court for correction of the decree. This application was allowed and the suit property was shown as situated in village Gaul instead of village Shembalpimpri. The order passed by the executing Court allowing the amendment on 8th April, 2011 was challenged before this Court by filing Writ Petition No. 3704 of 2011. On 5th December, 2011, the said Writ Petition was allowed and the order passed by the executing Court was set aside. The plaintiffs were granted liberty to file an application for amendment of the plaint along with the application for correction of the decree, if permissible in law. Pursuant to that, the plaintiffs-decree-holders again moved the trial Court and by order dated 10th September, 2012, the trial Court permitted the plaint as well as the decree to be corrected.
3. This order was then challenged by the original defendant No. 1 in Regular Civil Appeal No. 2 of 2013. The appellate Court by its judgment dated 17th August, 2015 dismissed the appeal and confirmed the aforesaid order. Being aggrieved, the original defendant through his legal heirs has filed this Second Appeal.
4. Shri Chavhan, learned counsel for the appellant, submitted that in terms of provisions of Order-XX, Rule 6 of the Civil Procedure Code, 1908 [for short, “the Code”], the decree that was sought to be executed ought to agree with the judgment, on the basis of which the decree was prepared. He submitted that without amending/making any corrections in the judgment, only the decree had been amended. While in the judgment, the suit property was described as being located at village Shembalpimpri, the decree indicated that it was located at village Gaul. Thus, without amending the judgment, the decree was sought to be executed. That was not permissible and for that purpose, the learned counsel placed reliance upon the judgment of the Honourable Supreme Court in Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan & others [ MANU/SC/1018/2002 : (2003) 1 SCC 197].
It was then submitted that even this amendment as sought was barred by limitation in view of provisions of Article 137 of the Limitation Act, 1963. The same ought not to have been allowed by the trial Court. He, therefore, submitted that the impugned orders were liable to be set aside.
5. Per contra, Shri Amol Deshpande, learned counsel for the original plaintiffs supported the impugned orders. He submitted that the defendant at no stage had raised the plea about the description of the village where the suit property was situated. According to him, after the decree was confirmed on merits, this objection was being raised merely to frustrate the execution of the same. It was not in dispute that the suit property was, in fact, located at village Gaul and the suit being one for partition, both parties were aware of the subject-matter of the dispute. The parties having gone to the trial on that basis, it was not now permissible for the judgment debtor to seek to defeat the decree on such technical counts. He referred to the provisions of Section 152 of the Code to urge that correction of clerical mistake of such nature was permissible. In that regard, he placed reliance on the decisions in [a] Tilak Raj Vs. Baikunthi Devi (D) by L.Rs. [MANU/SC/0224/2009 : AIR 2009 SC 2136], [b] Srihari (dead) through LR. CH. Niveditha Reddy Vs. Syed Maqdoom Shah & others [MANU/SC/0818/2014 : 2015 (3) Mh. L.J. 582] and [c] Master Construction Co. (P) Ltd. Vs. State of Orissa & another [MANU/SC/0304/1965 : AIR 1966 SC 1047].
6. I have heard the learned counsel for the parties at length.
7. The suit being filed for partition and separate possession and the decree having attained finality is not in dispute. It is further not in dispute that the plaint and the decree now stand amended by showing the suit property as located at village Gaul. It is only in the judgment that the suit property is shown to be located at Shembalpimpri.
8. Perusal of the judgment of the trial Court in Regular Civil Suit No. 225 of 1985 indicates that it was not the stand of the defendant that the suit property was located at village Gaul and not at village Shembalpimpri, as stated in the plaint. It is also not their case that under the garb of the aforesaid decree, some other property is sought to be partitioned. Under provisions of Order-XX, Rule 6 of the Code, the decree must agree with the judgment. It is to be noted that pursuant to the orders passed by the trial Court, the plaint and the decree stand amended. Merely because the judgment of the trial Court has not been corrected to indicate the correct location of the suit property, that cannot be a ground to defeat the execution of the decree. Under provisions of Section 152 of the Code, power has been conferred on the Court to permit rectification of clerical and typographical errors arising from any accidental slip or omission at any point of time. That the joint family property is located at village Gaul is not in dispute. The parties having contested the suit for partition and description of the property not being made an issue, it would be a travesty of justice to non-suit the plaintiffs on the ground that though the plaint and decree indicate that the suit property is situated at village Gaul, the decree cannot be executed as the property is described to be located at village Shembalpimpri in the judgment. It goes without saying that in the judgment, the relief has to be granted as prayed for in the plaint. As a result of the plaint being corrected to indicate the location of the suit property and the decree also having been so corrected, it follows that the decree is executable on that basis. The judgment can always be corrected in exercise of powers under Section 152 of the Code as held in Tilak Raj [supra]. Hence, I do not find that the impugned order is liable to be interfered on that count. The substantial question of law is answered by holding that the decree in question can be executed by amending the judgment under Section 152 of the Code.
9. In so far as the submission that the amendment as sought was barred by limitation in view of Article 137 of the Limitation Act, 1963, is concerned, the same cannot be accepted. The correction of the decree has been sought under Section 152 of the Code. Section 152 permits correction at any point of time. Article 137 would, therefore, have no application. Hence, the judgment in Harinarayan G. Bajaj & another Vs. Vijay Agarwal & others [MANU/MH/1787/2011 : 2012 (4) ALL MR 628] does not support the case of the appellants.
10. In view of aforesaid, there is no merit in the Second Appeal. It is, therefore, liable to be dismissed. Same is accordingly dismissed with no order as to costs.
11. The trial Court shall in exercise of powers under Section 152 of the Code correct the judgment dated 16th March, 1992 so as to indicate that the suit property is situated at village Gaul as per the plaint.