O R D E R

The above civil revision petition is preferred as against the fair and decretal order dated 10.03.2021 made in I.A.No.1 of 2019 in A.S.No.60 of 2010, on the file of learned Principal District Judge, Kanyakumari at Nagercoil.

2. Brief facts leading this revision are as under:-

The respondents 1 and 2/plaintiffs filed a suit in O.S.No.145 of 1996 on the file of the Sub Court, at Nagercoil, for the relief of declaration of title and permanent injunction and also for rendition of accounts. The above suit was dismissed by the trial Court on 28.10.2004. Aggrieved by this, the respondents 1 and 2/plaintiffs preferred an appeal in A.S.No.60 of 2010 on the file of the District and Sessions Court, Nagercoil. The above appeal suit was partly decreed in favour of the plaintiffs. In the appeal suit, a preliminary decree in respect of half share in the properties of Late.Vaithiyanatha Iyer under Ex.A8 and Ex.B29, was granted in favour of the plaintiffs. Thereafter, the plaintiffs filed an application in I.A.No. 01 of

2019 in A.S.No.60 of 2010 under Section 152 of CPC to amend the judgment and decree. In the said petition, it is stated that in page No.47 of the judgment, the first appellate Court determined Point No.5 regarding the claim of plaintiffs over the properties under Ex.A7, A8, B18 and B29. But in the decree, it is mentioned that the properties only under Ex.A8 and Ex.B29, the plaintiffs are entitled to 1/2 share and accidentally omitted Ex.A7 and Ex.B18. Even though the operative portion of the judgment it is mentioned that the plaintiffs are entitled to 1/2 share over the properties under Ex.A7, A8, Ex.B18 and Ex.B29, the same was not reflected in the decree. So, in the decree clause (iii) has to be amended as per the judgment. The First Appellate Court also restrained the defendants 4 to 9 from creating encumbrance on the properties as per decree (v) under Ex.A8 and B29 in stead of mentioning Exs.A7, A8, B18 and B29. Since the accidental omission of document numbers mentioned in the judgment, the plaintiffs are unable to proceed with judgment, as such, the amendment of decree is necessitated.

The said petition was resisted on the side of the petitioners by stating that the petitioners have no right to file the present application. As per the judgment, the decree was correctly drafted and there is no basis at all for the allegations made that in the decree Ex.A7 and Ex.B18 also to be included. There is no accidental omission or omission at all either in the judgment or in the decree regarding the properties in which share was given to the plaintiffs. Nowhere in the judgment, it is mentioned that the plaintiffs are entitled to 1/2 share in the properties included in Ex.A7 and B.18. So, without any basis in the judgment, the respondents 1 and 2 are seeking amendment of decree for claiming share in more properties which they are not entitled to.

However, the first appellate Court, after considering the averments made in the petition and the counter affidavit and the arguments advanced on both sides, allowed the said petition. Against which, the present civil revision petition is preferred.

3. The learned counsel appearing for the petitioners would submit that Section 152 of CPC makes it clear that the amendment can be invoked for the limited purpose of correcting clerical are arithmetical mistakes in the judgment and the same cannot be invoked for clearing a substantive relief, which was not granted under the decree. Therefore, the provision under Section 152 CPC cannot be invoked to modify, alter or add to the terms of the original order or decree. Therefore, the order passed by the appellate Court is liable to be set aside. To support his contention, the learned counsel relied upon the decision reported in (2005) 7 SCC 748.

4. On the other hand, the learned counsel for the respondents 1 and 2 would submit that the basis of the provision under Section 152 of the Code of Civil Procedure is founded on the maxim 'actus curiae nemi