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2013 Supreme(Cal) 130
IN THE HIGH COURT OF CALCUTTA
SOUMEN SEN, J.
Pratap Kumar Sadhu – Appellant
Vs.
Manowara Begum (Khatun) – Respondent
C.O. No. 3806 of 2012
Decided On: 08.03.2013
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Tapan Sinha
The Court can amend a final decree under section 152 of the Code of Civil Procedure if there has been a mistake of the Court.
Headnote:
PARTITION - Preliminary and final decree - Amendment of final decree - Limitation - Mistake of Court - Enforceability of decree - Limitation Act, 1963, Article 136.
Fact of the Case:
The petitioners filed an application under section 152 read with Order 20 Rules 14 and 6 of the Code of Civil Procedure seeking amendment of a final decree dated 17th February, 1998. The final decree was passed in a pre-emption suit and the petitioners contended that the decree was not executable as the pre-emption value of Rs. 34,000/- together with the cost was not mentioned in the decree. The petitioners argued that the judgment-debtors/stranger purchasers purchased the suit property from the proforma defendants Nos. 5 and 6 which resulted in a title suit being instituted, being Title Suit No. 36 of 1985. In the said proceeding, a preliminary decree of pre-emption was passed on 31st August, 1988 which recorded that the plaintiffs were entitled to a decree for pre-emption under section 4 of the Partition Act and the defendants were directed to amicably partition the property by metes and bounds according to the share of the plaintiffs within 2 months from the date; failing which partition will be effected by a pleader Commissioner the cost of which is to be borne out by each of the parties. Consequent thereupon, the Commissioner entered reference and filed a report in respect of the part and parcel of the dwelling house being Plot No. 3317 mentioning in Khatian No. 306 of Mouza, Burdwan with area of .09 acres in holding No. 41(old) 27 (new) at D.N. Sarkar Road, (Debendra Nath Sarkar Road) Mohalla, Post Office and Police Station - Burdwan (Sadar) District - Burdwan, West Bengal.
Finding of the Court:
The Court held that the executing Court cannot go behind the decree which became final to amend the self-same decree by exercising inherent power and the executing Court has correctly refused to accept the contention of the plaintiff decree-holder. The Court further held that the plaintiff decree-holder realized the limitation of the executing Court and, accordingly, filed the aforesaid application for amendment of decree. The Court also held that the learned Trial Judge by an order dated June 7, 2011 dismissed the said application on the ground that the plaintiffs did not submit the said sale deeds before the Court while the preliminary decree was pronounced and, therefore, such omission cannot be termed as clerical mistake within the scope of section 152 of the Code of Civil Procedure. The Court further held that the said impugned order was challenged in a Civil Revision being C.O. 3459 of 2011. The learned Single Judge while dismissing the said civil revisional application held that the learned Judge of the Trial Court has rightly held that the correction sought for by the decree-holders/petitioners does not come within the scope of section 152 of the Code of Civil Procedure. However, the said order of dismissal would not preclude the decree-holders/petitioners to seek correction of preliminary decree in accordance with law if at all it is legally permissible at this distant point of time.
Issues: 1. Whether the petitioners can file an application under section 151 of the Code of Civil Procedure for correction of the final decree dated 31st August, 1988, after 12 years? 2. Whether the Court can amend a final decree under section 152 of the Code of Civil Procedure if there has been a mistake of the Court?
Ratio Decidendi: 1. In a partition suit, the preliminary decree only decide a part of the suit and, therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress. 2. The Court is required to consider if there has been an accidental omission in the preliminary decree or the final decree. 3. A mistake of Court should not prejudice any party. 4. The Court can amend a final decree under section 152 of the Code of Civil Procedure if there has been a mistake of the Court.
Final Decision: The Court allowed the revisional application and directed the learned Civil Judge, Senior Division, First Additional Court at Burdwan to rehear the said application upon notice to the opposite parties and pass a reasoned order without being uninfluenced by any observation made in the earlier order. It is made clear that the said Civil Judge, Senior Division would also taken into consideration the question of limitation in the light of the observations made by the Hon'ble Supreme Court in the decided cases including Hameed Joharan (supra).
Soumen Sen, J.
1. The petitioners initially filed an application on 2nd September, 2009 under section 152 read with Order 20 Rules 14 and 6 of the Code of Civil Procedure in which a prayer was made for amendment of final decree dated 17th February, 1998. The said application was filed on the ground that the final decree dated 17th February, 1998 is not executable as the pre-emption value of Rs. 34,000/- together with the cost is allowed to be deposited and such value is incorporated in the final decree on the basis of the report filed by the learned Commissioner in this regard. It was contended that the judgment-debtors/stranger purchasers purchased the said family dwelling house property from the proforma defendant Nos. 5 and 6 which resulted in a title suit being instituted being Title Suit No. 36 of 1985 in the said proceeding, a preliminary decree of pre-emption was passed on 31st August, 1988 which records as follows:-
That the plaintiffs are entitled to a decree for pre-emption under section 4 of the Partition Act and the defendants are directed to amicably partition the property by metes and bounds according to the share of the plaintiffs within 2 months from the date; failing which partition will be effected by a pleader Commissioner the cost of which is to be borne out by each of the parties.
2. Consequent thereupon, the Commissioner entered reference and filed a report in respect of the part and parcel of the dwelling house being Plot No. 3317 mentioning in Khatian No. 306 of Mouza, Burdwan with area of .09 acres in holding No. 41(old) 27 (new) at D.N. Sarkar Road, (Debendra Nath Sarkar Road) Mohalla, Post Office and Police Station - Burdwan (Sadar) District - Burdwan, West Bengal.
3. The report of the Commissioner specifically states as follows:-
now for the determination of the valuation of the House copy of four Deeds were submitted before me by a plaintiff side, seen, the copy of the deeds No. 8601 of 1976, 8602 of 1976, 8603 of 1976, 8604 of 1974 of Burdwan Sadar, Sub-Registration Office and found that by the same deeds, the defendants purchased the suit property, so, the valuation given there may be taken as the market value of the same. Moreover, by this time the condition of the building has deteriorated much for want of proper care and maintenance.
4. Thereafter, on consideration of the report of the learned Commissioner, a final decree was passed on 17th February, 1998. The petitioners/decree-holders did not deposit the values of the pre-empted property at the time of institution of the suit and such amount became payable under Order 20 Rule 14 of the Code of Civil Procedure. The final decree is required to mention the said value of the pre-empted property. The final decree was, however, silent on the same and, accordingly, the said final decree became in-executable. On such plea, the aforesaid application was filed on 2nd September, 2009 for amendment of the decree. In the meantime, the plaintiff filed an execution application being Title Execution Case No. 4 of 1995 which, however, became infructuous as the decree remains in-executable in absence of the mentioning of the pre-emption value required to be deposited by the decree-holder.
5. The executing Court cannot go behind the decree which became final to amend the self-same decree by exercising inherent power and the executing Court has correctly refused to accept the contention of the plaintiff decree-holder. The plaintiff decree-holder also realized the limitation of the executing Court and, accordingly, filed the aforesaid application for amendment of decree.
6. The learned Trial Judge by an order dated June 7, 2011 dismissed the said application on the ground that the plaintiffs did not submit the said sale deeds before the Court while the preliminary decree was pronounced and, therefore, such omission cannot be termed as clerical mistake within the scope of section 152 of the Code of Civil Procedure. The said impugned order was challenged in a Civi
