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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

WRIT PETITION NO. 3742 OF 2022

Kamlabai Hiralal Barethiya and others

-- Petitioners

Vs.

Girdharilal Govindmal Ramnani and others

-- Respondents

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders of directions

and Registrar's orders

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Mr. V.B. Bhise, Advocate for Petitioners

Mr. Anup Gilda, Advocate with Mr. Ranande, Advocate h/f

Mr. Kamal Anandani, Advocate for Respondent No.1

CORAM : MANISH PITALE, J.

DATE : 11^th JULY, 2022

This petition has come up for consideration for the first

time before this Court, but, since the contesting respondent

No.1 has appeared on caveat before this Court, the petition is

taken up for consideration and disposal.

2.

By this writ petition, the petitioners have challenged

order dated 05/05/2022, passed by the Court of Joint Civil

Judge, Junior Division, Akot, in an application at Exh.1. By the

impugned order, the application has been allowed and the

judgment and decree passed in Regular Civil Suit

No.189/1993, is directed to be corrected to the extent of

stating Nazul Sheet No.19-D, instead of 19-B.

MP Deshpande

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3.

The aforesaid application was filed under Section 152 of

the Code of Civil Procedure (CPC) on behalf of the contesting

respondent No.1, contending that there had been a mistake in

the description of the property as being located in Nazul Sheet

No.19-B at Akot, District Akola, while the property in

question, which was subject matter of decree was actually

located in Nazul Sheet No.19-D. It was submitted in the said

application that since the said mistake could be said to be a

clerical mistake, the Court may exercise power under Section

152 of the CPC to grant such an application. The said

application was opposed on behalf of the petitioners,

contending that power under Section 152 of CPC could not be

exercised in the facts and circumstances of the case.

4.

The Court below in the impugned order found that the

mistake had crept in the decree on account of mistake in

description of the property in the plaint itself. It was recorded

that although such a mistake in the decree did not appear to be

a clerical or an arithmetical mistake, but, by referring to

Sections 151, 152 and 153 of the CPC, the Court below

exercised power and allowed the said application.

5.

Mr. Bhise, learned counsel assisted by Mr. Ranande,

learned counsel appearing for the petitioners submitted that

the mistake which stood corrected by the impugned order,

could not qualify as merely a clerical mistake and, therefore,

MP Deshpande

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there was a jurisdictional error in the impugned order,

particularly for the reason that the application filed by the

respondent No.1 specifically invoked Section 152 of the CPC.

It was submitted that since there was a mistake in the

description of the property in the plaint itself, it could not be

said to be a mistake on the part of the Court and that,

therefore, such a substantial mistake could not be corrected

under Section 152 of CPC. Reliance was placed on the

judgment of Orissa High Court in the case of Natrananda

Dalai Vs. Ratnabati Nayak (dead) and Anr. reported in AIR

2016 ORISSA 138.

6.

On the other hand, Mr. A.J. Gilda, learned counsel

appearing for Mr. Anandani, learned counsel for the

respondent, submitted that the Court below had specifically

invoked Sections 151,