ORDER

Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by the order datewd 20.09.2022 passed by VIII Civil Judge Senior Division, Gwalior M.P. in MJC No.12/2015.

Admitted facts of the case are that petitioner who is real brother of respondent had filed a civil suit No.4A/2000 for partition before trial Court and in which the decree was passed to the effect that between petitioner-respondent land situated at survey No.463, 464 and 465 in the ownership of their father Ramratan be divided equally. Thereafter, an application for executing the aforesaid decree was filed. On that application, execution proceeding No. 4 A/2000x2007 has been registered. During execution on the basis of compromise on 30.07.2012 execution proceeding was closed on the basis of full satisfaction of both the parties. The record of civil suit and execution proceeding have been sent to the record room. Thereafter, a dispute arose between the parties regarding partition of land. Respondent Omprakash Kushwah preferred an application before Naib Tehsildar for doing re-batankan on the basis of judgment passed by the executing court on 30.07.2012.

Thereafter, Tehsildar referred the matter to Collector and the Collector remanded the matter back to Tehsildar for re-demarcation and partition of the land between the parties. Thereafter, in compliance of the Collector order, Tehsildar did batankan and found that 900 sq. ft. land is in excess in possession of respondent, due to this, the petitioner filed an application before trial Court under Order XXVI Rule 9 read with section 151 of CPC which was registered as MJC No.12/2015 and prayed that an Advocate be appointed as Joint Commissioner to verify the aforesaid position and by visiting on the spot with the help of Tehsildar do partition on the aforesaid land equally and filed demarcation report and field book before the Court. On the aforesaid application notices were issued to the respondent. He filed his reply and arguments were submitted.

Learned counsel for the respondent submits that after hearing the arguments of the parties learned court below dismissed the application of the petitioner. Aggrieved by the aforesaid dismissal, he preferred this petition.

At this stage, learned counsel for the petitioner submitted that as per original judgment and decree, partition could not be took place due to wrong demarcation done by revenue authorities. In these situation, looking to the facts and circumstances of the case, this petition be allowed and the court below be directed to appoint an Advocate as Commissioner. He should go on the spot and as per judgment and decree do partition between the parties.

Learned counsel for the respondent submitted that during execution both the parties were in agreement and submitted a compromise application under Order 23 Rule 3 of CPC (Annexure P/4) that as per judgment and decree passed by the court below partition took place. They are having no objection.

On that satisfaction application was allowed and execution proceeding was dropped.

Order 26 Rule 9 is applicable when any suit is pending before Court and Court deems fit for local inspection. In the present case, no suit is pending.

As far as Section 152 is concerned, provision has been made in the CPC to amend judgment and decree and order only on clerical or arithmetical mistakes arising therein from any accidental slip or omission. But in the present facts and circumstances of the case, this provision is not applicable.

Looking to the facts and circumstances of the case, by dismissing the application of the petitioner learned court below has not erred.

Petition sans merits and is hereby dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE Van