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2007 Supreme(Ker) 684

High Court of Kerala
Harun Ul Rashid, J.
J Sarojini Alias Nesamma & Ors - Appellant
Versus
Narayani Sarojini & Ors - Respondent
C.R.P. No. 741 of 2005
Decided On : 20-11-2007

Headnote:

Civil Procedure Code, 1908 - Section 152 - Revision Petition is filed by the plaintiffs in O.S. who are aggrieved by the order passed by the Court below in an application filed by them under S.152 of the C.P.C for correction of certain mistakes which had crept in the description of the property scheduled to the plaint and so in the decree - Held, Question is not one of scope of the wide powers of court to order amendment - Question is as to when the power is available and how to be exercised - Courts are not vested with the powers to exercise them inexpediently leading to incongruous results - Court is of the view that if really there is a grievance that in the plaint a mistake has been crept there should be some remedy for the revision petitioners - One remedy available to the revision petitioners is that they can file a review petition to reopen the execution proceedings, so that the pendency of the suit will continue so long as the execution proceedings are pending - No interference is possible in the impugned order - Civil Revision Petition Disposed of.

ORDER

1. This revision petition is filed by the plaintiffs in O.S. 2452/1990 who are aggrieved by the order passed by the Court below in an application filed by them under Section 152 of the C.P.C. for correction of certain mistakes which had crept in the description of the property scheduled to the plaint and so in the decree.

2. According to the revision petitioners the survey number of the scheduled property shown in the plaint was a mistake and all other entries are correct. The survey number alone had been wrongly described but this wrong description did not in any way affect the identity of the property. The only question which arises for consideration is whether on the facts the application for amendment is allowable by invoking the jurisdiction of this Court under Section 152 of the C.P.C. Section 152 reads as follows:

"Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

3. The question as to the powers of the Court under Section 152 of the C.P.C. to amend the errors in a decree although the error may have first occurred in the parties' pleadings and may have been merely copied from them in the decree has been the subject-matter of some diversity of judicial opinion. Thus when there is an error in the description of mortgaged property owing to the accidental use of the word `west' for `east' as dealt with in the decision reported in Raghulghani v. Uma Shenkar (A.I.R. 1944 Oudh 5) and the insertion of wrong survey number as examined in Satyanarayana v. Purnayya (A.I.R. 1931 Madras 260) and such error is repeated in the plaint and the decree, the court has been held to have ample powers to rectify the error. As Pandalai, Justice observed in the Madras case just cited:

"There is nothing which limits the power of the court under Section 152 to correcting errors, mistakes and omissions, which arise in the suit. Nothing prevents the court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the plaint. A suit for rectification of the instrument and decree is not the only remedy; an application for review may be appropriate, but that is no obstacle under Section 152 to an application."

4. In the later case before the Madras High Court in Krishna Poduval v. Lekshmi Nathiar (A.I.R. 1950 Madras 751) the prayer was for amendment of the survey number of an item of property in the plaint schedule and the decree schedule when there was no dispute as regards the identity of the property or boundaries to it and the amendment was allowed under Section 152. Discussing the matter the learned Judge held:

"I do not think therefore that the amendment asked for goes to the root of the claim or an amendment is sought for in respect of any matter which has been a subject of controversy between the parties to the suit. It is only an amendment for correction of certain errors that have crept into the decree and in the plaint schedule which errors happen to be also in Ext.B-1 (Original document). The fact that Ext. B-1 also has the same errors as in the plaint schedule and in the schedule to the decree cannot disentitle the plaintiff's to have the errors set right if they are entitled to it under the provisions of the Code."

5. The short facts of the case is as follows:

The revision petitioners/plaintiffs filed the suit for recovery of the plaint schedule property from the respondents/defendants and the same was allowed as per decree dated 22-10-1996. On the basis of the decree the property was delivered to the revision petitioners on 14-6-2000. According to the revision petitioners the survey number of the plaint schedule property in the plaint and decree in O.S. 2452/1990 happened to be written by mistake as 237/2 instead of 238/1-A. In the interests of justice it was prayed before the court below that th










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