A satisfied decree cannot be amended under Section 152 of the C.P.C. as it is considered dead for all practical purposes.

JUDGMENT :

Heard learned counsel Mr. V. C. Solshe for the petitioner and learned counsel Mr. M. L. Dharashive for the respondent Nos. 2 to 4. None appears for the remaining respondents.

2. Rule. Rule is made returnable forthwith. Heard the parties finally at the admission stage.

3. The petitioner is challenging an order dated 05.07.2011 passed by the learned Principal District Judge, Latur in Misc. Civil Application No. 12/2007 thereby allowing the application and permitting to amend decree passed by the Appellate Court.

4. The petitioner is the original defendant No. 3. The respondent Nos. 2 to 4 had filed R.C.S. No. 170/1976 for partition and possession against the husband of the respondent No. 1 namely Baburao, the respondent No. 1 – Indubai and the purchasers including the present petitioner. The suit was decreed on 30.07.1980 by the Trial Court. The operative part of the judgment is as follows :

Order

The suit of the plaintiffs is partly decreed with proportionate costs.

(1) Plaintiffs are hereby declared owners having 4/6th share in the suit property agricultural land and house except 3 acres land out of 40/A which is in possession of Defendant No. 3.

(2) Plaintiffs are entitled to partition and separate possession of their 4/6th share together (1/6th share of each plaintiffs) in the suit property agricultural land S. No. 41/A, admeasuring 9 acres 7 gunthas 43-A, 3 acres 2 gunthas and western side 3 acres portion of S. No. 40/A and suit house.

(3) The sale-deed executed by Defendant No. 1 in favour of Defendants Nos. 3, 4 and Defendant No. 5 are not binding on the shares of the plaintiffs.

(4) Partition of the agricultural land be effected through Collector, Osmanabad and copy of the decree be sent to Collector for partition.

(5) Partition of suit house be made through Court by appointing a Commissioner.

(6) Plaintiffs suit in respect of partition and possession of eastern side 3 acres land out of S. No. 40/A which was transferred in favour of Shri Digamberrao possession of Defendant No. 3 is dismissed.

5. Being aggrieved, the purchasers had filed Regular Civil Appeal Nos. 90/1980, 95/1980 and 96/1980. Pertinently, the respondent No. 1 – Indubai did not prefer any appeal. Neither an appeal was preferred by the plaintiff No. 4 – Narsing whose share is sought to be adjusted by the respondent No. 1 by her Misc. Application No. 12/2007. The appeals were dismissed on 29.04.1985. Against that, three second appeals were preferred which were also dismissed. The decree passed by the Trial Court became final and binding.

6. The respondent Nos. 2 to 4 filed Regular Darkhast No. 17/1983 for execution of the decree which received the finality. There was partition by metes and bounds of the suit lands involved in the suit. The decree was satisfied and hence, on 15.09.2005 an order was passed by the Executing Court in Regular Darkhast No. 17/1983. The respondent No. 1 was party to the suit, appeal as well as execution, but no grievance was made by her against the execution of the decree.

7. On 21.09.2007, the respondent No. 1 – Indubai preferred Misc. Application No. 12/2007 under Section 152 of the Code of Civil Procedure (for short “C.P.C.”) seeking modification in the decree. The learned Principal District Judge after hearing the parties allowed her application and the decree passed by the Trial Court which merged in the decree of appeal was directed to be amended as follows :

ORDER

The application is allowed with no costs.

The common judgment and decree, passed in Regular Civil Appeal Nos. 90 of 1980, 95 of 1980 and 96 of 1980, which were directed against the judgment and decree passed in RCS No. 170/1976, decided by the Civil Judge JD, Ausa, dist. Latur, is ordered to be amended by incorporating following sentences :-

“It is hereby declared that the applicant Indubai Baburao Borphale (original respondent No. 5 in three appeals) shall be entitled to 1/3rd share in the suit properties bearing Sy. Nos. 40/A, excluding 03 acres of land, which is allow