Rafiqa Bibi w/o Syed Wazir All died, Rep. by 2 Sons v. Syed Waliuddin deceased Rep. by his 14 L. heirs
1994-01-13
R.S.KEJRIWAL
body1994
DigiLaw.ai
JUDGMENT 1. - The S.B. Civil Second Appeal No. 356/1965 was dismissed on 20.9.1972 on the ground that the same was barred by limitation. While dismissing the appeal, this Court also granted leave to appeal to the appellant. The appellant filed D.B. Civil Special Appeal No. 9/1973 which was allowed by this Court on 1.11.1985. During the pendency of the special appeal, appellant Syed Waliuddin, died on 5.8.1984 and his legal representatives were brought on record. The special appeal was allowed on 1.11.1985 and the case was remanded back to the learned Single Judge for deciding the second appeal on merits. The second appeal was allowed on 14.4.1986 and a decree was prepared by this Court on 18.8.1986 but due to inadvertence the name of deceased-plaintiff-appellant, Syed Waliuddin, was shown as plaintiff-appellant instead of his legal representatives. Under these circumstances, the legal heirs of deceased Syed Waliuddin filed an application under Section 152 of the C.P.C. That application was allowed by this Court on 8.12.1986. Now, the defendant has riled this application for reviewing the said order on the ground that no notice was given to him before allowing the application submitted under Section 152 of the C.P.C. Notice of this review application was served upon the legal heirs of deceased-plaintiff-appellant, Syed Wali Uddin. 2. I have heard learned counsel for both the parties and gone through the record. 3. Shri Arjun Karnani, learned counsel for the applicant, argues that a decree under Section 152 of C.P.C. can be amended only when there is an arithmetical or clerical mistake, but in the judgment and decree, there is no clerical or arithmetical mistake and as such. the names of legal representatives of deceased plaintiff-appellant, Syed Waliuddin, can not be substituted. His second submission is that no notice was given to him before allowing the application under Section 152 C.P.C. When a question was asked to Shri Karnani, learned counsel for the applicant, that when legal representatives were already brought on record in S.B. Civil Special Appeal, whether there was any necessity of filing any application for substitution in Civil Second Appeal. He also concedes that when the legal representatives were brought in special appeal, there was no necessity for again bringing the legal representatives on record in Civil Second Appeal.
He also concedes that when the legal representatives were brought in special appeal, there was no necessity for again bringing the legal representatives on record in Civil Second Appeal. If there was a mistake in the judgment and the Court corrected the same on an application submitted by the legal representatives of deceased plaintiff-appellant, Syed Wali Uddin, it cannot be said that the Court had committed a mistake. The Court is bound to correct the mistake committed by it or by its Officers when the attention of the Court is drawn by any of the parties. On the second point, though, it is correct that notice should have been given to the applicant before allowing the application under Section 152 C.P.C., but now I heard the case on merits, the second-submission of the learned counsel for the applicant has no substance. 4. Lastly, learned counsel for the applicant argues that the name of Hisrnuddin son of deceased plaintiff-appellant Syed Walliuddin, has been shown at two places, though, there is only one Hisamuddin s/o Syed Walliuddin. In my opinion, this will not effect the execution of decree. The Executing Court will delete the name of Hisarnuddin s/o Syed Walliuddin at one place. The application has no force and as such the same is dismissed. 5. The Executing Court is directed to execute the decree without any delay, as a period of more than seven years had already been passed when decree was passed by this Court.Review petition dismissed. *******