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2005 Supreme(AP) 387
Andhra Pradesh High Court
Judges : V.V.S.RAO
Syed Maqdoom Shah - Appellant
Versus
Basheer Khatoon - Respondent
A.S.M.P.Nos11880/04 etc
Decided On : 04-21-05
Advocates Appeared :
Mr.V.L.N.G. Murthy,Mr.M.V.S. Suresh Kumar,Mr.V.S. Ramachandra Murthy,Mr.Nataraja Sharma
Headnote:CIVIL PROCEDURE CODE, Secs.151 to 153 - Or.20, Rules 12 & 18 and Or.22, Rules 1 & 4 - Amendment of preliminary decree - Suit for partition - Admittedly petitioners are entitled for half share in suit property - Though decree directs division of suit property into four equal shares and allotment of one such share to plaintiff, there is no decree in favour of petitioners - Hence, petition filed seeking amendment of decree.
One of respondents contends that application for amendment of decree or for passing a supplemental preliminary decree not tenable on ground that provisions of Secs.151 to 153 CPC not specified, that decree having merged in judgment has no independent existence and decree passed in suit is nullity and non-est factum in eye of law as entire suit abated.
Petitioners contend that there is no dispute between parties regarding shares - Court while decreeing suit did not record any finding contrary to same, but in drafting of decree, shares of petitioners not specifically declared and direction not properly made by inadvertence - Application for amendment of decree u/Secs.152 and 153, maintainable.
Even if party to a suit dies during pendency of suit, suit abates only qua a particular party and entire cause of action or suit does not abate - Contention of respondent, rejected.
Amendment of ‘decree’ - Intentional omissions in judgment cannot be corrected by way of amendment where as unintentional omissions can always be amended
u/Secs.151 to 153 CPC - If in a particular suit Court is required to deal with matter and grant relief in a specified manner, but having decreed suit either in favour of plaintiff or in favour of defendant, fails to issue a decree in accordance with judgment, it is to be true as unin-tentional omission requiring amend-ment u/Sec.152 & 153 CPC - Court have always used provisions of Sec.152 liberally if prayer for amendment does not involve correcting intentional omissions or does not involve reconsideration of merits of matter.
In a suit for partition Court has to pass decree in accordance with Or.20 R.18 CPC - Sub-rule (2) of R.18 man-dates that in a suit for partition, Court shall pass a preliminary decree declaring rights of several parties interested in property and giving such further direction as may be required.
In the present matter it is a clear case of unintentional omission in drafting decree - Hence Sec.152 & 153 are attracted - Objections to present petition raised by the respondent - Unsustainable - Applications, allowed.
( 2 ) IN support of these applications, the second petitioner filed affidavit along with the said applications. It is stated that Khader nawaz Khan, the predecessor-in-title of respondents 1 to 6 herein filed suit being o. S. 471 of 1987 on the file of the Court of the additional Senior Civil Judge, R. R. District for partition and separate possession of the plaint schedule property. The suit was dismissed by judgment and decree dated 16-10-1990 against which he filed A. S. No. 734 of 1991. By a judgment and decree dated 25-1-1996, the learned Single Judge of this Court allowed the appeal. Aggrieved by the same, respondent No. 16 filed L. P. A. No. 72 of 1996, which was dismissed by a division Bench on 29-12-1998. The review petition being Review C. M. P. No. 3830 of 1999 filed by the 16th respondent was allowed by the Division Bench by an order dated 30-8-2001. Feeling aggrieved by the said order, respondents 1 to 6 herein; the legal representatives of the original appellant- plaintiff filed S. L. P. (Civil) No. 22591 of 2001 before the Supreme Court. The Supreme court by an order dated 10-2-2003 allowed the Civil Appeal arising from the S. L. P. setting aside the order of the Division Bench dated 30-8-2001 in Review C. M. P. No. 3830 of 1999. Again the respondent No. 16 filed s. L. P. (Civil) No. 2962 of 2003 and the same was dismissed by the Supreme Court by an order dated 7-4-2003.
( 3 ) THE respondents 1 to 6, thereafter, filed la. Nos. 505 and 507 of 2004 under order XX Rule 12 (2) of CPC for passing of final decree and also for determination of mesne profits. In the said application, they asked for division and allotment of 1/4th share, which the original plaintiff claimed in the suit. Being the legal representatives of Shahzadi bi (Mother of first petitioner and grand mother of second petitioner), the petitioners are entitled to share in the property. Though the decree in A. S. No. 734 of 1991 directs division of suit schedule property into four equal shares and allotment of one such share to the plaintiff there is no decree in favour of the petitioners. The petitioners were not aware of the legal position and if decree is not granted in their favour, they would suffer grave and irreparable loss and injury. Therefore the present petition is filed seeking amendment of the decree.
( 4 ) EVEN before the respondents could file any counter affidavit, the petitioners again filed another application being A. S. M. P. (SR) No. 55622 of 2004 praying this Court to amend the petition as one under sections 151 to 153 of CPC. Be that as it is, except respondent No. 16 all other respondents are not opposing the prayer made in the miscellaneous applications. The respondent No. 16 filed counter as well a
