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2004 DIGILAW 862 (PAT)

Prithbi Kamant v. Khikhari

2004-08-25

S.N.HUSSAIN

body2004
Judgment S.N.Hussain, J. 1. Heard learned counsel for the petitioners who are heirs of Defendant No. 1 of Title Suit No. 181/1988. The said suit was filed by plaintiff-O.P. Mo. I for declaration of 1/3rd share in the suit property and also for declaration that the sale-deed dated 29.5.1981 was collusive, inoperative and not binding upon the plaintiff and also for a declaration that the survey entries in the name of the defendants were null and void. 2. The aforesaid suit was decided by Additional Munsif-II Saharsa, by judgment dated 30.6.1997, the operative portion of which reads as follows :- - "That the suit is decreed on contest with cost. The 1/3rd share of the plaintiff from the suit land is declared. The sale-deed in favour of the 3rd party is collusive, illegal and inoperative and Khatigan entry in favour of 3rd party is collusive, inoperative and illegal and same is not binding upon the plaintiff." However, inspite of the aforesaid operative portion of the judgment (Annexure-2 to the Supplementary affidavit) no mention of partition of 1/3rd share of the plaintiff was made in the Preliminary Decree of the suit prepared on 10.7.1997. However, when proceeding for taktabandi etc. was started for preparation of Final decree it was found that no Final Decree for separation of 1/3rd share can be prepared as no such share was mentioned in the Preliminary Decree (Annexure-3 to the Supplementary affidavit). 3 In the aforesaid circumstances, the plaintiff-O.P., Mostt. Khikhari filed a petition u/s. 152, CPC on 18.8.2003 before the trial Court for correction of the Preliminary Decree on the ground that it was a clerical mistake. This petition has been allowed by the impugned order dated 3.9.2003 by the learned Additional Munsif-II, Saharsa, in the above mentioned title Suit No. 181/1998. 4. The learned counsel for the petitioners challenges the aforesaid order on the ground that the said decree was prepared by the trial Court on 10.7.1997 and petition for correcting the same was filed after more than six years on 18.8.2003 and hence, the same should not be allowed. In this regard the learned counsel for the petitioners relied upon a decision of the Apex Court in the case of Plasto Pack, Mumbai and Anr. In this regard the learned counsel for the petitioners relied upon a decision of the Apex Court in the case of Plasto Pack, Mumbai and Anr. V/s. Ratnakar Bank Ltd., reported in AIR 2001 SC 3651 , in which the amendment of the pleading was refused, although, the petition was filed only two years after the preparation of the decree. The learned counsel for the petitioners further contended that the learned Court below erred in assuming that the intention of the Court was to declare the share of the plaintiff for the purpose of partition in the suit, but according to the settled law, the Court below could not have legally entered into the merit of the case as per another decision of the Apex Court in the case of State of Punjab V/s. Darshan Singh, reported in AIR 2003 SC 4179 . In the aforesaid circumstances, he submitted that the impugned order of the learned Court below was absolutely illegal, improper, perverse and fit to be set aside. 5. After considering the argument of the learned counsel for the petitioners and after perusing the materials on record it is quite apparent that the learned Court below after considering the case of the parties in its Judgment declared 1/3rd share of the plaintiff in the suit land and also granted other reliefs claimed by the plaintiff (O.P. 1st set). But the same was not incorporated in the Preliminary Decree, which should have been prepared in accordance with the said judgment. Hence, this matter does not at all touches the merit of the suit, rather in my opinion, it is only a matter of clerical mistake which had been committed while preparing the Preliminary Decree. Hence, the case of State of Punjab, supra, supports the contention of the plaintiff-O.P as it was held therein that the Court can look into the clerical or arithmetical errors. Furthermore, so far as the case of M/s. Plasto Pack, Mumbai and another, supra, is concerned, it is apparent from the said decision that the order on the basis of which the decree was prepared did not specify the exact decreetal amount and the claim of the party had been refused. But here the matter is completely different as the Judgment on the basis of which the Preliminary Decree was prepared specifically allowed partition of 1/3rd share of the plaintiff (O.P. 1st set). But here the matter is completely different as the Judgment on the basis of which the Preliminary Decree was prepared specifically allowed partition of 1/3rd share of the plaintiff (O.P. 1st set). Hence, the said decision is not at all applicable in the instant case. 6. So far the matter of delay is concerned, it is sufficient to mention here that the said defect in the Preliminary Decree was discovered during the proceeding for preparation of the Final Decree and hence the plaintiff-Decree-holder was quite justified in filing a petition as soon as she came to know about that. Furthermore, the procedure of Final a Decree is still continuing and hence the matter of delay cannot legally be an impediment in the correction of the Preliminary Decree. 7. In the aforesaid facts and circumstances, I find that the learned Court below was quite justified in making correction in the Preliminary Decree by way of adding the words "let a Preliminary Decree of 1/3rd share of the plaintiff in the suit land be prepared", which should have been legally incorporated at the initial stage itself. 8. Hence, I find no illegality or jurisdictional error in the impugned order of the learned Court below and accordingly the civil revision is dismissed.