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2003 DIGILAW 1381 (RAJ)

Panna Lal v. Mandir Murti Shri Narasinghji

2003-10-07

M.L.JAIN, R.K.JAIN

body2003
JAIN, MEMBER – The short fact leading to the present litigation are that a suit was filed on behalf of Mandir Murti Shri Narsinghji against Makhan Lal, Basanti and Pana Ram under Section 88, 188 and 175 of the Rajasthan Tenancy Act in the Court of Sub-Division Officer, Navalgarh which was registered as case No. 11/76 and it was decreed on 27.12.1990. In this judgment the disputed land bearing khasra No. 1039 measuring 7 bighas 19 biswas was declared to be khatedari land of plaintiff and in issue No. 2 it was also held that the plaintiff is entitled to recover possession of the dispute land from the defendants, but in the operative portion of the judgment and so also in the decree it was not mentioned that the plaintff would be entitled to recover possession of the disputed land from the defendants. Against this judgment and decree dated 27.12.1990 of Sub-Divisional Officer, Navalgarh an appeal was filed before dismissed the appeal on merits. A second appeal was preferred against this judgment in this Court and that appeal was summarily dismissed on 8.9.1994. (2). When the plaintiff sought execution of the above mentioned decree it was found that decree did not contain order of ejectment of the defendants from the disputed land and therefore, the plaintiff filed an application before Sub-Divisional Officer, Navalgarh under Section 152 CPC seeking amendment of the decree and this application was allowed vide order dated 28.8.2001 and against this order Panna Ram has filed a revision petition No. 263/2001. (3). The plaintiff, although was successful in obtaining amendment of this decree from the trial Court, but he has also filed an application before this Court seeking amendment of the decree under Section 151, 152 and 153 CPC for incorporating the direction for ejectment of defendants from the disputed land and this application has been registered as 27/2001. (4). Both the above revision petition and applciation are proposed to be dispossed of this single order and it is ordered that copy of this order may be placed in both the files. (5). First question which requires to be addressed is whether there is a mistake in the decree drawn by trial Court, which requires to be corrected under Section 152 CPC? (5). First question which requires to be addressed is whether there is a mistake in the decree drawn by trial Court, which requires to be corrected under Section 152 CPC? On this point learned counsel for Panna Ram placed reliance on Jayalakshmi Coelha vs. Oswald Joseph Coelha (1), and argued that the mistake committed by the trial Court is not a arithmetical or clerical mistake and, therefore, it cannot be corrected under Section 152 CPC. We have gone through this judgment and it is based on entirely different facts and cannot be applied to the facts of the present case. (6). We have examined the record of this case and we find that trial Court had recorded a clear cut finding under issue No.2 that the plaintiff was entitled to recover possession of the disputed land and this finding was upheld by both the appellant Courts. We find that in the operative portion of the judgment the trial Court accidentally omitted to mention that plaintiff would also be entitled to recover possession of the disputed land from the defendants. In our view, the an accidental omission which can be corrected under Section 152 CPC and we find support from Kale Gowda vs. Akkayyamma (2). (7). Now the next question is whether the trial Court could legally amend the decree passed in present case? In this connection learned counsel for Panna lal placed reliance on Durga Singh vs. Wahid Raza (3), Komal Chand vs. Puran Chand (4) and Ramsunder Singh vs. Smt. Panna Kaer (5). In these judgment it has been hald that once the decree of trial Court is appealed against, the decree of the trial Court merges in the decree of the appellant Court and, therefore, the appellate Court alone can amend the decree. On the other hand, Learned counsel for Mandir Murti Narsinghji placed reliance on Ram Bharose Lal vs. Rameshwar Dayal (6) and P.V. Varadaraj Iyer vs. Ammukutty Amma (7). (8). We have gone through the citations placed before us and we have noticed that under Section 153-A CPC it has been provided that if appellate Court dismiss the appeal summarily, the trial Court can amend its decree under Section 152 CPC. The inference which can be drawn from this provision is that if an appeal is decided on merits, then trial Court cannot amend its decree. The inference which can be drawn from this provision is that if an appeal is decided on merits, then trial Court cannot amend its decree. In the present case, the first Appellate Court has decided the appeal on merits and in the second appeal this Court had dismissed the appeal summarily. Therefore, we are of the opinion that amendment under Section 152 CPC could have been made in the decree of the trial Court by this Court and not by the trial Court. (9). In view of the finding recorded above we allow the revision petition filed by Panna Ram and set aside the order dated 28.8.2001 passed by Sub-Divisional Officer, Navalgarh but at the same time we allow the application filed on behalf of Mandir Murti Narsinghji before this Court and direct that the decree passed by the trial Court be amended by inserting therein that plaintff shall be entitled to recover possession of the disputed land described in the decree from the defendants. The trial Court shall accordingly amend its decree. Pronounced in the open Court.