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1996 Supreme(Pat) 160
PATNA HIGH COURT
Gurusharan Sharma, J.
Rambilas Mahto
Versus
Mahablr Mahto
Civil Revision No. 13 of 1994 ;
Decided On : MARCH 14, 1996
The court has inherent power to amend its decree to bring it in conformity with the judgment even after the decree is executed or extensively fully satisfied.
Headnote:
PARTITION - AMENDMENT OF FINAL DECREE - POWER OF COURT - SECTION 151 OF THE CODE OF CIVIL PROCEDURE - COURT CAN AMEND ITS DECREE TO BRING IT IN CONFORMITY WITH THE JUDGMENT EVEN AFTER THE DECREE IS EXECUTED OR EXTENSIVELY FULLY SATISFIED.
Fact of the Case:
In a partition suit, the trial court passed a preliminary decree granting the defendants 70 to 73 5 shares out of 96 shares and a separate takhta. The Commissioner, in his third report, cancelled Takhta No.18 allotted to the defendants 70 to 73 and allotted those lands to the defendants 1 and 2 and others. The trial court confirmed the said third and final report and thereafter the final decree was prepared, sealed and signed. The defendants 70 to 73 filed an objection under Sec.47 of the code in the said execution proceeding, which was registered as Misc. Case no.28 of 1988. They claimed that the final decree was not in conformity with the judgment and preliminary decree and it required amendment. The Executing court accepted their contentions, recalled the earlier order dated 27- 5-1988, allowed the objection and ordered the final decree to the amended in harmony with the judgment and the preliminary decree. The petitioner claiming to be the heir and successor of defendants 1 and 2 preferred Civilrevision No.16 of 1990 (R) in this Court, which was allowed on 11-12-1990 with observation that the Executing court had no jurisdiction to correct the final decree, which was said not to be in conformity with the preliminary decree. The proper procedure for a party aggrieved, in such circumstances, was to move the trial court in this regard. Accordingly, on 1-4-1991 the opposite parties 1 to 8 filed an application under Sections 151, 152 and 153 of the Code in the said Partition Suit No.8 of 1959 to amend the final decree, which according to them was not in conformity with the judgment and the preliminary decree. The trial court allowed the prayer.
Finding of the Court:
The trial court had complete jurisdiction to allow amendment of its decree. The Commissioner was simply required to make allotments and prepare Pattis for the parties according to their respective shares in the suit properties, strictly in terms of the decree. The Commissioner was not at all justified expressing his opinion about the interest/claims of the parties and make allotments beyond the terms of the preliminary decree. The aforesaid act of the Commissioner was, therefore, wholly illegal and without jurisdiction.
Issues: Whether the trial court had jurisdiction to amend the final decree to bring it in conformity with the judgment?
Ratio Decidendi: The court held that the trial court had complete jurisdiction to allow amendment of its decree. The Commissioner was simply required to make allotments and prepare Pattis for the parties according to their respective shares in the suit properties, strictly in terms of the decree. The Commissioner was not at all justified expressing his opinion about the interest/claims of the parties and make allotments beyond the terms of the preliminary decree. The aforesaid act of the Commissioner was, therefore, wholly illegal and without jurisdiction.
Final Decision: The Civil Revision application was dismissed and the impugned order dated 4-10-1993 passed by the court below in Partition Suit No.8 of 1959 was confirmed.
Gurusharan Sharma, J.
1. Kedar Mahto, father of opposite parties 9 to 11 herein, filed Partition Suit No.8 of 1959 in the court of Subordinate Judge, palamau at Daltonganj for partition of his share in the properties described in the Schedule to the plaint. The predecessors-in-interest of the petitioner as well as Oppositeparties 1 to 8 herein were defendants 1 and 2 as well as defendants 70 to 73 in the suit. The suit was decreed.
2. In the judgment and preliminary decree dated 26-7-1961 it was held that the plaintiff was entitled to the extent of one share out of 96 shares in all the other Khatas and 25 shares out of % shares in Khata No.20 ; whereas in another land defendant Nos.70 to 73 were entitled to 5 out of 96 shares. Defendants 70 to 73 the four daughters of Ramdihal Mahto were sisters among themselves and they jointly got 5 shares out of 96 shares in the disputed lands including Khata No.20. The trial court, therefore, observed Thus there is no evidence contrary to hold that these defendants 70 to 73 have no shares in the disputed lands and it must be held that these four defendants have got five shares out of 96 shares in the Khata in dispute including Khata No.20. . . . . . and that the plaintiff is entitled to partition to the extent of one share out of % shares in all the Khatas except in Khata no.20, in which the share of the plaintiff is 25 shares out of 95 shares and the plaintiff is entitled to a separate Takhta to the said extent and the defendants were never in possession by any private partition between the parties and that defendants 70 to 73 are also entitled to a separate Takhta to the extent of 5 shares out of % shares in all the Khatas in suit including Khata No.20 and that the remaining share shall form a joint takhta of the other defendants. "
3. None of the defendants preferred any appeal against the preliminary partition decree and he plaintiff took steps for preparation of final decree. Thereafter a Pleader, amin, Commissioner was appointed, who after preparing Takhtas submitted his report on 30-3-1967. Takhta No.18 was prepared for defendants 70 to 73. No Takhta was prepared for defendants 1 and 2. Takhta No.19 contained the lands which were not partitioned and left joint for those co- sharers who were not allotted separate Takhtas.
4. By order dated 30-7-1967, the trial court directed the Commissioner fo prepare Takhtas also for other defendants without disturbing the Takhta prepared for defendants 70 to 73. On 10-4-1969 the Commissioner submitted his second report showing allotment of lands out of Takhta No.19 to defendants 11 to 13 vide Takhta No.20.
5. By order dated 8-7-1976 the trialcourt further directed the Commissioner to prepare Takhtas for the remaining defendants, if possible, without disturbing the existing Takhtas. On 26-9-1981 the Commissioner submitted his third report showing Takhta nos.21 and 22 prepared in the names of defendants 1 and 2 and Takhta Nos.23 to 39 in the names of other defendants. In this report, the Commissioner cancelled the Takhta, originally prepared in accordance with the preliminary decree, for defendants 70 to 73 And allotted those lands to defendants 1 and 2 and others, but inadvertently number of the takhta was wrongly mentioned as 19 instead of 18. The lands kept joint originally vide Takhta No.19 were allotted to different defendants.
6. In the said third and final report and entire suit lands were allotted kin 37 Takhtas. Defendants 70 to 73, who according to the preliminary decree were entitled to a separate Takhta of 5 shares out of 96 shares, were not allotted any Takhta and the Commissioner observed -
"a perusal of the survey Khatian would show that Ramdihal Mahto, Chaudhuri mahto, and Baudh Mahto owned 75 shares in the Khatas under partition. Ramdihal mahto died about 50 years ago in a state of jointness with his brother Baudh mahto and his share devolved by survivorship on the joint brother Baudh mahto who came to own 10 shares and chau
