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Papu Khan Vs. Fatima Babi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 129 of 1969
Judge
Reported inAIR1973Ori235
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115, 151 and 152 - Order 47
AppellantPapu Khan
RespondentFatima Babi and ors.
Appellant AdvocateS.C. Ghosh, Adv.
Respondent AdvocateG.G. Das, Adv.
DispositionRevision allowed
Cases Referred(Rajkishore v. Nilamani). In
Excerpt:
.....not good law]. - 1 failed to resort to those remedies, it was not open to the court below in purported exercise of inherent powers under section 151, civil p......interest described in the ga schedule which was also included in the kha schedule. in the final decree proceeding, a commissioner was appointed to divide the properties according to the shares determined in the preliminary decree. the commissioner submitted his report erroneously allotting rs. -/12/- interest in the kha schedule land to the defendant no. 1. as no objection was filed, the commissioner's report was accepted and court passed the final decree on 2-11-1968 in terms of the allotments made by the commissioner. plaintiff no. 1 moved the court under sections 151 and 152, civil p. c. for amendment of the final decree by correcting the share allotted to defendant no. 1 as 65/288 in the kha schedule land on the ground that the final decree is not in accordance with the.....
Judgment:
ORDER

A. Misra, J.

1. This revision has been filed by defendant No. 1 in a partition suit against an order allowing amendment of the final decree.

2. The preliminary decree in a partition suit registered as T. S. No. 29 of 1951 filed by opposite party Nos. 1 to 9 against the present petitioner and others was passed on 29-8-1953 determining the shares of the respective parties. In T. A. No. 160 of 1953, the judgment and decree of the trial Court were confirmed on 25-1-1957. According to the preliminary decree, the share of defendant No. 1 in the Kha Schedule land was determined as 62/288. He, however, was to be allotted Rs. -/12/- share in the landlord's interest described in the Ga Schedule which was also included in the Kha Schedule. In the final decree proceeding, a Commissioner was appointed to divide the properties according to the shares determined in the preliminary decree. The Commissioner submitted his report erroneously allotting Rs. -/12/- interest in the Kha Schedule land to the defendant No. 1. As no objection was filed, the Commissioner's report was accepted and Court passed the final decree on 2-11-1968 in terms of the allotments made by the Commissioner. Plaintiff No. 1 moved the Court under Sections 151 and 152, Civil P. C. for amendment of the final decree by correcting the share allotted to defendant No. 1 as 65/288 in the Kha Schedule land on the ground that the final decree is not in accordance with the shares allotted in the preliminary decree and Basir Khan (plaintiff No. 4) who was looking after the suit being ill could not file objection to the Commissioner's report which led to the inadvertent error creeping into the final decree. This was registered as Misc. Case No. 506 of 1968. The prayer of plaintiff No. 1 was resisted by defendant No. 1 on the ground that due service of notice had been effected on plaintiff No. 4 before passing of the final decree and that the Court has no jurisdiction to amend the final decree under Section 151 or 152, Civil P. C. The learned Munsif holding that the Court has inherent power to amend or vary the final decree which is not in accordance with the preliminary decree passed an order that the final decree be corrected according to the preliminary decree. It is this order which is under challenge in the present revision.

3. Learned Counsel for petitioner assails the impugned order on the following grounds: (1) The order of the Court below is unworkable and has the effect of wiping out the entire final decree proceeding, a relief not sought by plaintiff No. 1 and (2) plaintiff No. 1 not having filed an appeal or applied for review of the final decree passed, the Court below had no jurisdiction to pass the impugned order in purported exercise of powers under Sections 151 and 152, Civil P. C. which has the effect of setting aside the final decree. For opposite parties, on the other hand, it is contended that in the present case the final decree which was passed was not in accordance with the preliminary decree, and therefore, the Court below had power in exercise of its inherent jurisdiction to amend it and bring it in accord with the directions in the preliminary decree. Secondly, it is argued that even if it is found that the Court below exceeded its jurisdiction, it will not justify interference in revision when real and substantial justice has been done. Lastly, it is argued that in any view of the matter, it was open to the Court below to treat the application of plaintiff No. 1 as one for review and grant relief on the ground of error apparent on the face of the record. The respective contentions require careful examination.

4. The first contention of the petitioner is a substantial one. The following facts are not seriously disputed: A preliminary decree for partition was passed on 29-8-1953 wherein the share of defendant No. 1 in the Kha Schedule land was determined to be 65/288, while his share in the landlord's interest described in Schedule Ga which included the Kha Schedule land was determined at Rs. -/12/-. A commissioner was appointed to divide the properties in accordance with the shares determined in the preliminary decree. The commissioner in his report erroneously or otherwise which is difficult to ascertain on the materials available purported to allot Rs. -/12/- interest both in Schedules Kha and Ga to defendant No. 1. As no objection appears to have been raised to the allotments made by the commissioner, the Court below accepted the same and passed the final decree on 2-11-1968. The result is that though under the preliminary decree the share of defendant No. 1 in the Kha Schedule land was fixed at 65/288, in the final decree, he has been allotted a share of Rs. -/12/- in the said property. The application of plaintiff No. 1 praying for rectification of this allotment in respect of the Kha Schedule land was allowed and the following order passed :

'It is also ordered that the final decree of this case be corrected according to the preliminary decree.'

5. The above order passed by the Court below as is rightly contended by learned Counsel for petitioner is not workable, and in fact, cannot be said to afford the relief which plaintiff No. 1 sought. In the final decree proceeding, the shares as determined in the preliminary decree are to be separated and allotted to the respective parties and according to such allotments, the final decree is to be passed. In this case, the impugned order does not purport to allot any specific portion of the Kha Schedule land constituting 65/288th share to defendant No. 1. All that it means is that the final decree is to be corrected according to the preliminary decree which amounts to nothing more than saying that defendant No. 1's share will be 65/288. If the Court below felt that in carving out the share of defendant No. 1 the commissioner gave him a larger share than to what he was entitled under the preliminary decree, the only way of rectifying was to get a fresh partition effected according to the shares determined in the preliminary decree. This would have necessitated the setting aside of the final decree. In this case, the final decree does not purport to have been set aside and the share of defendant No. 1 carved out afresh. The Court below has simply purported to correct the quantum of the share of defendant No. 1 in the final decree according to the preliminary decree. This order is unworkable as it would not show which portion of the land is actually intended to be given to defendant No. 1. On this ground alone, the impugned order is open to interference.

6. Coming to the next contention, admittedly, plaintiff No. 1 did not prefer any appeal or apply for review of the final decree, It is argued by learned Counsel for petitioner that under Order 20, Rule 3, Civil P. C., as a general rule, a judgment, decree or final order drawn up and signed cannot subsequently be altered, varied or amended, except on review or under Section 152, Civil P. C. Section 152, Civil P. C. permits correction of any clerical or arithmetical mistakes or errors arising from an accidental slip or omission. In the present case, on the admitted facts, no objection was filed to the commissioner's report and the same was accepted. In accordance with the said report, the final decree was passed. Even assuming that in dividing the properties the commissioner committed some error in making the allotments, the fact remains that the Court below accepted the commissioner's report and, passed the final decree. There is no question of clerical or arithmetical mistake or error arising from any accidental slip or omission. Therefore, Section 152 has no application I The only other point is whether the Court below in exercise of its inherent powers under Section 151, Civil P. C. could pass an order in substance setting aside the final decree. In the decision reported in AIR 1962 SC 527, (Manohar Lal v. Hiralal) it has been held that the inherent powers under Section 151, Civil P. C. cannot be invoked in cases where it would conflict with any specific provisions of the Code or is contrary to the intention of the Legislature. In other words, where the Code contains express provisions for obtaining a remedy and a party has not resorted to them, the Court cannot exercise its inherent powers under Section 151, Civil P. C as that would amount to circumventing the express provisions. In the present case, it cannot be disputed that plaintiff No. 1 had the right to prefer an appeal against the final decree or, if there were valid grounds, she could have applied also for review. When plaintiff No. 1 failed to resort to those remedies, it was not open to the Court below in purported exercise of inherent powers under Section 151, Civil P. C. to give the relief which could have been given only in appeal or review. Therefore, in my opinion, the Court below had no jurisdiction to allow amendment which has the effect of setting aside the final decree in purported exercise of its inherent powers.

7. Mr. Das, learned Counsel appearing for opposite parties, contended relying on a decision reported in (1965) 31 Cut LT 443, (Narayan Naik v. Sara Bewa) that in the present case as real and substantial justice has been done, even if the Court below acted without jurisdiction, the order ought not to be interfered with in revision. The facts of that case were entirely different. In that case, an application for final decree was dismissed on the ground that the compromise decree amounted to a final decree. A subsequent application for review was also dismissed. Against this order, an appeal was preferred to the learned Subordinate Judge who allowed it and this order was challenged in revision, one of the grounds being that no appeal lay to the learned Subordinate Judge. The Court found that as a matter of fact, the compromise decree was not to be treated as one finally settling the specific and definite title of individual co-owners with respect 10 the property. Therefore, it declined to interfere in revision. This view was not adhered to in a subsequent decision reported in (1966) 32 Cut LT 501. In the present case, as already indicated, the impugned order of the Court below does not amount to doing real and substantial justice. By the impugned order, except saying that the share of defendant No. 1 should be corrected to be in conformity with the preliminary decree, the actual portion to which defendant No. 1 will be entitled has not been decided. If this order is allowed to stand, though in fact it results in wiping out the entire final decree proceeding, it does not give scope for a fresh division of the properties. Thus, it leads to an unworkable situation. For these reasons, the impugned order cannot be allowed to stand.

8. The last contention on behalf of opposite parties is that it was open to the Court below to treat the application of plaintiff No. 1 as one for review of the final decree on the ground that an error in respect of the share in the Kha Schedule land is apparent on the face of the record. In support of this contention, reliance is placed on a decision reported in AIR 1968 Ori 140, (Rajkishore v. Nilamani). In that case, the final decree for partition was passed against the defendants, one of whom, was ex parte. When decree-holder levied execution, the defendant who was ex parte filed an application under Section 47, Civil P. C. challenging ex-ecutability of the decree on the ground that no notice had been served on him in the final decree proceeding. As the said application contained the necessary allegations, though it was not maintainable under Section 47. Civil P. C., it was treated as one under Order 9, Rule 13, Civil P. C. and the ex parte decree set aside. On this analogy, it is argued that when in the present case, an application was filed by plaintiff No. 1 questioning the correctness of the final decree on the ground that the error is apparent on the face of the record it not being in consonance with the preliminary decree, it was open to the Court to treat it as an application for review and dispose it of on merits. There is some force in this contention.

9. As already indicated, the share of defendant No. 1 under the preliminary decree was 65/288 in the Kha Schedule land, while the property allotted to him under the final decree is Rs. -/12/- interest. On these facts, it was open to the Court below to treat the application filed by the plaintiff No. 1 as one for review and dispose it of on merits.

10. In the result, I allow the revision with costs, set aside the impugned order and direct that the case be remanded to the trial Court to consider the application filed by plaintiff No. 1 as one for review of the final decree on payment of further court-fee, if necessary and consideration of the question of limitation, if any, and dispose it of on merits.


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