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SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA AND PRAFULLA C. PANT, JJ.
SRIHARI (DEAD) THROUGH LR. SMT. CH.NIVEDITHA REDDY - Appellant
VERSUS
SYED MAQDOOM SHAH & ORS. - Respondents
Civil Appeal Nos.2352-2354 of 2008
Decided on: 16-9-2014
AIR 2003 SC 4179: (2004) 1 SCC 328; (2005) 7 SCC 748; AIR 1966 SC 1047 - Relied upon
(b) Code of Civil Procedure, 1908 - Section 152 - High Court in first round decreeing suit for partition with findings of shares after discussion of evidence - Defendants pleading for separation of shares - High Court by decision u/s 152 clarifying said decree and declaring shares of different co-sharers - Order XX, rule 18(2) - No infirmity. (Para 20)
(2009) 9 SCC 689; (2006) 1 SCC 380 - Relied upon
Facts of the case:
Scope and ambit of section 152 CPC is the issue in these appeals.
Finding of the Court:
High Court only clarifying the earlier decree. No infirmity.
Result: Appeals dismissed.
Certainly. Based on the provided legal document, the key points are as follows:
Section 152 of the Civil Procedure Code is primarily intended for correcting clerical errors, arithmetical mistakes, or accidental omissions in judgments or orders. It is not meant for rectifying all types of errors or omissions that affect the merits of a case (!) (!) (!) (!) .
The scope of Section 152 is limited to errors arising from accidental slips or omissions, and its application should be confined to such clerical or arithmetical mistakes. It should not be invoked to alter substantive rights or to correct errors that go to the core of the case's merits (!) (!) (!) .
In the case discussed, the High Court's order under Section 152 was deemed to be a correction of clerical or accidental errors, rather than a substantive change to the decree. The Court clarified that the order was within the scope of Section 152 because it involved only the correction of such errors (!) (!) .
The original decree in the suit for partition was based on a detailed discussion of evidence and findings regarding the shares of the parties. The appellate court had already decreed the suit for partition, and the order under challenge sought to amend this decree to clarify the shares and interests of the parties involved (!) (!) .
The amendments made by the High Court under Section 152 were considered appropriate because they clarified the decree by explicitly stating the shares of the respective parties, consistent with the evidence and findings in the case. This was viewed as a permissible exercise of the limited powers under Section 152 (!) (!) .
The Court emphasized that the power to amend decrees under Section 152 does not extend to re-evaluating the case or correcting errors that affect the substantive rights or the merits of the case, but is restricted to clerical or accidental mistakes (!) (!) .
The principles governing the correction of decrees under Section 152 include ensuring that the correction does not alter the substantive rights of the parties and that it remains within the scope of rectifying clerical or arithmetical errors or accidental omissions (!) (!) .
The decision confirms that when a decree already contains clear and specific findings regarding the shares and rights of the parties, a correction under Section 152 to clarify or specify these shares is permissible, provided it does not amount to a substantive re-judgment (!) (!) .
In summary, the document underscores the limited and specific nature of the powers conferred by Section 152, emphasizing that corrections should be confined to clerical or accidental errors without affecting the substantive rights or merits of the case.
JUDGMENT
Prafulla C.Pant, J.
All these three appeals are directed against the common judgment and order dated 21.4.2005 passed by the High Court of Andhra Pradesh in A.S.M.P. No.11880 of 2004, A.S.M.P. No. 1098 of 2005 and A.S.M.P. No.1099 of 2005 (moved in A.S. No. 734 of 1991) whereby the High Court exercising powers under Section 152 of the Code of Civil Procedure,1908 (hereinafter referred as ‘the Code’), has allowed the applications, and directed that the preliminary decree passed in A.S. No. 734 of 1991, be amended allotting and dividing half share of Syed Makdoom Shah (defendant No.11) and Syed Hussain Shah in the suit schedule property in addition to 1/4th share of legal heirs of plaintiff Khadar Nawaz Khan (since dead) and 1/4th share of the legal heirs of defendant Feroz Khan (died on 22.1.1978).
2. Brief facts of the case are that one Qamaruddin Ali Khan was original owner and pattadar of agricultural land bearing S.Nos. 41 to 43 situated in Village Kokapet. The land was purchased by Khadar Hussain Khan through a registered sale deed, who died in the year 1942. Khadar Hussain Khan died issueless as an unmarried person, leaving behind his real sister Shahzadi Bee and two step brothers namely Feroz Khan and Khadar Nawaz Khan (plaintiff). Khadar Hussain Khan remained in possession and enjoyed the property in suit as absolute owner till his death in the year 1942 (year 1352 Fasli). It is pleaded by the plaintiff that after death of Khadar Hussain Khan the property was succeeded by his real sister Shahzadi Bee, and two step brothers namely Feroz Khan (died on 22.1.1978) and Khadar Nawaz Khan (plaintiff). On the death of Feroz Khan in the year 1978, his share is inherited by his widow Habib Khatoon (Defendant No.1) and children Moin Khatoon (Defendant No.2), Zehra Khatoon (Defendant No.3), Tehera Khatoon (Defendant No.4), Sughra Sameena Khatoon (Defendant No.5), Kaneez Fatima Khatoon (Defendant No.6), Butool Khatoon (Defendant No.7), Aysha Khatoon (Defendant No.8) and Khaderalikhan (Defendant No.9). A suit (O.S.No. 471 of 1987) was instituted by plaintiff Khadar Nawaz Khan for partition of his 1/4th share from plot S. Nos. 41 to 43 measuring area Ac.49.24 gts situated in aforesaid village Kokapet. It is further pleaded by the plaintiff that after death of Feroz Khan, plaintiff and defendant nos. 1 to 11 are in joint possession of the property. It is alleged by him that defendant no. 12 (Srihari) had no concern with the property in suit but he is trying to claim right over the property on the basis of some document said to have been executed by one of the co-sharers. Therefore the plaintiff felt that he is unable to enjoy his property, in joint possession with the original co-sharers as such he filed suit for partition of his 1/4th share.
3. Defendant Nos. 1 to 9 and defendant No. 11 in substance admitted the case of the plaintiff.(Defendant No.10 during the pendency of proceeding has died and his heirs are on record.) Defendant No. 11 filed his written statement and defendant Nos.1 to 9 adopted the same. It is admitted to defendant Nos.1 to 9 and defendant no. 11 that after the death of Khadar Hussain Khan, the property in suit devolved and was inherited by his real sister Shahzadi Bee and two step brothers namely Feroz Khan and Khadar Nawaz Khan. However, mutation was done in the name of Feroz Khan being elder male member in the family, and names of Shahzadi Bee and Khadar Nawaz Khan were shown ‘shikmi’. It is further pleaded by the aforesaid defendants that on the death of Feroz Khan on 22.1.1978, defendant Nos. 1 to 9 (i.e. widow and children of the deceased) inherited his share. Defendant No.11 is the son of Shahzadi Bee (real sister of Khadar Hussain Khan). It is also admitted by the aforesaid defendants that defendant No.12 Srihari had no concern with the property in suit. It is further pleaded by aforesaid defendants (Nos.1 to 11) that the land in question is to be partitioned between the plaintiffs and the defendan
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