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Azizurrahman Khan Vs. Abdulhai Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All64; 55Ind.Cas.963
AppellantAzizurrahman Khan
RespondentAbdulhai Khan and ors.
Excerpt:
civil procedure code (act v of 1908) section 152 - error in, judgment--successor of judge, whether competent to correct error. - - this he clearly has......plot no. 54/1. on appeal the additional district judge found in favour of the plaintiff and in his finding wrote the following words: 'thus the proper order to make is to award to the plaintiff the entire site 54/1 and a half share in the remaining site inclusive of the platform and a half share in the entire materials. i find accordingly.' this was very clear and distinct. at the end of his judgment he wrote as follows: 'i allow this appeal in part and modifying the decree of the lower court order that plot no. '54/2' be awarded to the plaintiff unconditionally, that the remaining portion of plot no. 54 and plot no. 160 be divided in equal shares and one half of it be given to the plaintiff,' etc. it is, therefore, quite clear that he found in favour of the plaintiff, but in writing the.....
Judgment:

Tudball, J.

1. This is a revision against an order of the Second Additional Judge of Aligarh passed on the 31st of August 1918. The predecessor-in office of the Judge in question heard and decided an appeal on the 26th of April 1918. The plaintiff in that suit sought for partition of a house, claiming a half shara therein and a half share in plot No. 54/2. The plaintiff also claimed exclusive possession of plot No. 54/1. On appeal the Additional District Judge found in favour of the plaintiff and in his finding wrote the following words: 'Thus the proper order to make is to award to the plaintiff the entire site 54/1 and a half share in the remaining site inclusive of the platform and a half share in the entire materials. I find accordingly.' This was very clear and distinct. At the end of his judgment he wrote as follows: 'I allow this appeal in part and modifying the decree of the lower Court order that plot No. '54/2' be awarded to the plaintiff unconditionally, that the remaining portion of plot No. 54 and plot No. 160 be divided in equal shares and one half of it be given to the plaintiff,' etc. It is, therefore, quite clear that he found in favour of the plaintiff, but in writing the mandatory portion of his judgment be accidentally wrote 54/2 instead of 54/1. This error crept into the decree. When the error was discovered, the plaintiff at once went to the Court below and asked for action to be taken under Section 152 of the Code and to have the error corrected. Thereupon the then Additional Judge, another officer, wrote the following order: '1 am unable to correct the finding of a former Judge. The decree appears to be in accordance with the finding.' It is in respect of this order that the present application is made, and it is urged that the Judge of the Court below has refused to exercise the jurisdiction lying within him. On behalf of the opposite party it is urged that the Judge has not refused to exercise his jurisdiction but has exercised it and has held that there is nothing to be corrected. Beading the Judge's order it seems to me that its plain meaning is that the Judge was of opinion that he had no power at all to correct the error in his predecessor's judgment. This he clearly has. It is admitted before me that the error exists. It is quite clear that justice demands that it be amended. I, therefore, direct the amendment to be made both in the judgment and in the decree. Where the figure 54/2 occurs in the last paragraph but one of the judgment, that will be altered to 54/1 and the corresponding amendment should be made in the decree. In view of the circumstances of the case the parties will bear their own costs of this application.


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