IMPORTANT POINT
The jurisdiction to amend a decree confirmed by higher courts lies solely with those courts, not the Trial Court.

JUDGMENT :

Heard.

2. The applicants – original defendant Nos. 4, 9 and 10, have filed present application under Section 152 of the Civil Procedure Code, 1908 (hereinafter referred to as the, “CPC”), for amendment of preliminary decree dated 13.10.2003, passed by the Trial Court in Special Civil Suit No. 29/1996.

3. Non applicant No.1 – original plaintiff had filed a suit for partition and separate possession of house property and other properties. The Trial Court decreed the suit and granted 1/5th share each to non applicant No.1 – Anantrai (plaintiff), non applicant no.2 – Arvind (defendant No.1), non applicant No.3 – Vasant (defendant No.2), non applicant No.4 – Sharad (defendant No.3) and applicant No.1 – Girish (Defendant No.4).

4. Applicant Nos. 2 and 3 are sons of applicant No.1. The other non applicants are legal representatives of Arvind, Vasant and Sharad. Anantrai is now represented by his legal representatives.

5. For the purpose of present application, following facts are relevant.

6. One Ramshankar Prabhashankar Upadhyay had, in his lifetime, acquired the suit properties including plot Nos. 88 and 88/1 admeasuring 9122 Square Feet with construction of 2100 Sq. Ft. thereon (suit property No.3). He had three wives, Ramaben – died issueless, Muktaben – died leaving behind Anantrai – plaintiff and Hiraben – died leaving behind five sons namely, Arvind (defendant No.1), Vasant (defendant No.2), Sharad (defendant No.3) Girish (Defendant No.4) and Pravin, who expired in January, 1990 (predeceased his father Ramshankar).

7. Thus, for the purpose of inheritance of properties, Ramshankar had five sons, Anantrai (plaintiff), Arvind (defendant No.1), Vasant (defendant No.2), Sharad (defendant No.3) and Girish (defendant No.4). The Trial Court has accordingly decreed the suit, granting 1/5th share to each son. This decree has attained finality having been tested in all the Courts viz. First Appellate Court, Second Appellate Court and the Supreme Court.

8. Girish then approached the Trial Court, seeking amendment in the decree on the ground that Arvind, his wife and his son Jignesh (defendant No.6) had sold one of the suit properties i.e. suit property No.3 to Girish and Chirag, vide registered sale deed dated 17.01.2000. Accordingly, Girish sought amendment in preliminary decree to the extent of increasing 1/5th share of Girish in the suit property No.3, so as to make it 2/5th share and correspondingly no share should be granted to Arvind in the said property.

9. The Trial Court rejected the application, inter alia, on the ground that this issue has been not raised before any Court including the Hon’ble Supreme Court and, therefore, it is too late to raise the issue in the execution proceeding. The order was challenged before the High Court, but in vain. The applicants have filed review petition against the said order dated 07.01.2021 and is pending before this Court being Misc. Civil Application (Review) No.345/2022.

10. Mr. M. G. Bhangde, learned Senior Counsel, by referring to the judgment of the Hon’ble Supreme Court in the case of B. Boraiah Rep. Thr. LRs. Vs. M. G. Thirthaprasad & Ors., SLP (C) No.31174/2016, submits that in terms of Section 153A of the CPC, the First Appellate Court or the High Court in the second appeal, which has confirmed the decree, is the right forum for seeking correction of decree and the Trial Court has no jurisdiction to entertain the application where the decree is affirmed by the First Appellate Court or the Second Appellate Court, as the case may be.

11. In the said case, the High Court of Karnataka, had in first appeal confirmed the decree of the Trial Court. The question that fell for consideration before the Supreme Court was whether the application for correction of the decree, which has been confirmed by the High Court while deciding the appeal filed there against on merit can be corrected/altered by the Trial Court, keeping in mind the purport of Section 153A of the CPC. The Supreme Court held th