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2005 DIGILAW 386 (AP)

Syed Maqdoom Shah v. Basheer Khatoon

2005-04-21

V.V.S.RAO

body2005
( 1 ) THIS common order shall dispose of these miscellaneous applications filed in an appeal suit, which was allowed by this Court by judgment dated 25-1-1996 while reversing the judgment and decree of the Court of additional Subordinate Judge, Ranga Reddy district in O. S. No. 471 of 1987. A. S. M. P. No. 11880 of 2004 is filed under Section 152 of Code of Civil Procedure, 1908 (CPC) praying this Court to amend the decree dated 25-1-1996 by granting the relief of partition and separate possession of V2 share in suit schedule property in favour of the petitioners. A. S. M. P. (S. R.) No. 55622 of 2004 is filed praying this Court to amend the provisions of law in miscellaneous application being a. S. M. P. No. 11880 of 2004 as one under sections 151,152 and 153 of CPC whereas the other miscellaneous application being a. S. M. P. (SR) No. 55623 of 2004 is filed praying this Court to permit the petitioner to amend the prayer by adding the words" or in the alternative to pass a supplemental preliminary decree declaring the half share of the petitioners in the suit schedule property ino. S. No. 471 of 1987 on the file of the Court of the Senior Civil Judge, R. R. District and direct partition and separate possession of their half share. ". ( 2 ) IN support of these applications, the second petitioner filed affidavit along with the said applications. It is stated that Khader nawaz Khan, the predecessor-in-title of respondents 1 to 6 herein filed suit being o. S. 471 of 1987 on the file of the Court of the additional Senior Civil Judge, R. R. District for partition and separate possession of the plaint schedule property. The suit was dismissed by judgment and decree dated 16-10-1990 against which he filed A. S. No. 734 of 1991. By a judgment and decree dated 25-1-1996, the learned Single Judge of this Court allowed the appeal. Aggrieved by the same, respondent No. 16 filed L. P. A. No. 72 of 1996, which was dismissed by a division Bench on 29-12-1998. The review petition being Review C. M. P. No. 3830 of 1999 filed by the 16th respondent was allowed by the Division Bench by an order dated 30-8-2001. Aggrieved by the same, respondent No. 16 filed L. P. A. No. 72 of 1996, which was dismissed by a division Bench on 29-12-1998. The review petition being Review C. M. P. No. 3830 of 1999 filed by the 16th respondent was allowed by the Division Bench by an order dated 30-8-2001. Feeling aggrieved by the said order, respondents 1 to 6 herein; the legal representatives of the original appellant- plaintiff filed S. L. P. (Civil) No. 22591 of 2001 before the Supreme Court. The Supreme court by an order dated 10-2-2003 allowed the Civil Appeal arising from the S. L. P. setting aside the order of the Division Bench dated 30-8-2001 in Review C. M. P. No. 3830 of 1999. Again the respondent No. 16 filed s. L. P. (Civil) No. 2962 of 2003 and the same was dismissed by the Supreme Court by an order dated 7-4-2003. ( 3 ) THE respondents 1 to 6, thereafter, filed la. Nos. 505 and 507 of 2004 under order XX Rule 12 (2) of CPC for passing of final decree and also for determination of mesne profits. In the said application, they asked for division and allotment of 1/4th share, which the original plaintiff claimed in the suit. Being the legal representatives of Shahzadi bi (Mother of first petitioner and grand mother of second petitioner), the petitioners are entitled to share in the property. Though the decree in A. S. No. 734 of 1991 directs division of suit schedule property into four equal shares and allotment of one such share to the plaintiff there is no decree in favour of the petitioners. The petitioners were not aware of the legal position and if decree is not granted in their favour, they would suffer grave and irreparable loss and injury. Therefore the present petition is filed seeking amendment of the decree. ( 4 ) EVEN before the respondents could file any counter affidavit, the petitioners again filed another application being A. S. M. P. (SR) No. 55622 of 2004 praying this Court to amend the petition as one under sections 151 to 153 of CPC. Be that as it is, except respondent No. 16 all other respondents are not opposing the prayer made in the miscellaneous applications. Be that as it is, except respondent No. 16 all other respondents are not opposing the prayer made in the miscellaneous applications. The respondent No. 16 filed counter as well as additional counter opposing the application for amendment of the decree or for passing a supplemental preliminary decree declaring the half share of the petitioners. ( 5 ) A summary of the contents of the counter affidavits as seen from the "comprehensive counter affidavit" filed on 8-2-2005 is as follows. The application for amendment of the decree or for passing a supplemental preliminary decree is not tenable on the grounds that the provisions of sections 151 to 153 of CPC are not specified, that the decree in A. S. No. 734 of 1991 having merged in the judgment of L. P. A. No. 72 of 1996 has no independent existence and that the decree passed in O. S. No. 471 of 1987 dated 16-10-1990 is nullity and non est factum in the eye of law as the entire suit was abated. The petitioner is defendant no. 12 in the suit, that he has no connection with the suit property or neither share in it nor a relief is claimed against him. Though the answering respondent filed written statement contending that he has documents in his favour and possession with him, no steps were taken to amend the pleadings and therefore the petitioners or their representatives cannot recover possession from respondent No. 16. Even before the service of summons, defendant No. 10 died but no steps were taken to bring his legal representatives on record and allowed the suit to abate and the suit was dismissed ultimately. In view of this anything done or steps taken and any order or judgment passed thereafter is nullity in the eye of law. Therefore the decree granted in A. S. No. 734 of 1991 or dismissal of L. P. A. No. 72 of 1996 is of no consequence. The present application for amendment of the decree is not maintainable. Further, the decree in A. S. No. 734 of 1991 merged in the judgment of L. P. A. No. 72 of 1996 and a petition before the learned Single judge would not lie. The second petitioner was impleaded as a legal representative without notice to respondent No. 16 and therefore he has no locus standi to file the application. Further, the decree in A. S. No. 734 of 1991 merged in the judgment of L. P. A. No. 72 of 1996 and a petition before the learned Single judge would not lie. The second petitioner was impleaded as a legal representative without notice to respondent No. 16 and therefore he has no locus standi to file the application. In the absence of any arithmetical mistake or error arising from any accidental slip or omission and in the absence of any intention of this Court to grant a decree for partition in favour of the petitioners, no amendment is permissible. ( 6 ) LEARNED counsel for the petitioners sri V. L. N. G. K. Murthy, contends that in a suit for partition Order XX Rule 18 of CPC casts an obligation on the Court to declare the rights of several parties interested in the property and order partition and/or separation taking into consideration the proportionate rights of the plaintiffs and defendants. He placed reliance on Division Bench decision of Madras High Court in Periaswami v. Dhanalakshmp and Nanja Naicken v. Rangammap. He also invited the attention of this Court to the decision in Rahmat Bee v. Maqbool Banif. He would urge that there was no dispute between the parties regarding the shares they are entitled to. This Court also while decreeing the suit did not record any finding contrary to the same, but in drafting the decree, the shares of the petitioners were not specifically declared and the direction was not properly made by inadvertence. Therefore, he contends that application for amendment of decree under sections 152 and 153 of CPC is maintainable. He submits that even if a party to the suit dies during the pendency of the suit, the suit abates only qua a particular party and the entire cause of action or the suit does not abate. He further contends that though defendant No. 10 died when the suit was pending the legal representative of the defendant No. 10 on his own came on record before this Court as respondent No. 13. The suit was initially dismissed by the trial Court, but the same was decreed by this Court when the estate of the deceased defendant no. 10 was properly represented and hence the suit does not abate. The suit was initially dismissed by the trial Court, but the same was decreed by this Court when the estate of the deceased defendant no. 10 was properly represented and hence the suit does not abate. Lastly he would contend that the doctrine of merger has no effect on the rights of the petitioners as the respondent No. 16 herein (who was respondent No. 12 in the appeal) filed L. P. A. , but did not choose to make the petitioners as parties to the L. P. A. In any event, according to the learned counsel, having regard to the orders of the Supreme Court the judgment in l. P. A. No. 72 of 1996 dt. 29-12-1998 merely confirmed the decree of the learned Single judge and therefore this application is not barred before this Court. ( 7 ) LEARNED counsel for respondents 1 to 6 (legal representatives of original plaintiff) sri M. V. S. Suresh Kumar supports the case of the petitioners. However, this application for amendment of the decree is strongly opposed by respondent No. 16, who was defendant No. 12 in the suit and respondent no. 12 in the appeal A. S. No. 734 of 1991. ( 8 ) LEARNED counsel for respondent No. 16 sri Nataraj Sharma made the following submissions. There are no circumstances warranting amendment of the decree in accordance with the provisions of Sec. 151 to 153 of CPC. The decree in A. S. No. 734 of 1991 having merged in the judgment of the division Bench in L. P. A. No. 72 of 1996, the application before the learned Single Judge is not tenable and such application has to be moved only before the Letters Patent Court. During the pendency of the suit, only defendant No. 10 died and therefore decree passed is null and void and nonest and there cannot be any amendment of decree which is a nullity. ( 9 ) THE only point that would arise for consideration in this miscellaneous petition is whether this application filed by respondents 11 and 13 for amendment of the decree in A. S. No. 734of 1991 is not maintainable in the fact and circumstances of the case? ( 10 ) THREE questions need to be considered to resolve the controversy. They are dealt with one after the other. ( 10 ) THREE questions need to be considered to resolve the controversy. They are dealt with one after the other. (i) Whether the decree in O. S. No. 471 of 1987 is nullity and non est as having abated due to death of defendant No. 10, predecessor in title of second petitioner herein ? ( 11 ) KHADER Nawaz Khan, husband of first respondent and father of respondents 2 to 6 herein filed the suit inter alia contending that he on one side and defendants 1 to 9, legal heirs of Feroz Khan on the other side are entitled to 1/4th share each in the property left behind by late Khader Hussain Khan, whereas defendants 10 and 11 are entitled to share being sons of Shahzadi Bee, the natural sister of Khader Hussain Khan. Defendant no. 10 died during the pendency of the suit and no legal representatives were brought on record though a memo was filed to that effect. Be that as it is, the trial Court dismissed the suit on 16-10-1990. In view of this, the submission that the suit abated is of no consequence. When the appeal filed by the plaintiff being A. S. No. 734 of 1991 was pending, son of late Shahzadi Bee, s/o. Mohiuddin Shah (defendant No. 10 in the suit) filed an application being C. M. P. No. 925 of 1996 to come on record as legal representative. The same was not objected to and accordingly by reason of the order of this Court dt. 25-1-1996, second petitioner herein was added as party respondent no. 13. After hearing all the parties, this court by judgment dt. 25-1 -1996 allowed the appeal decreeing the suit of the plaintiff whose legal representatives are respondents 1 to 6 herein. Therefore, the submission of the learned counsel for respondent No. 16 that the judgment of this Court by the learned single Judge as well as Division Bench judgment in L. P. A. is of no consequence in view of abatement of the suit, is wholly unsustainable. ( 12 ) AN appeal - it is no gainsaying; is continuation of the suit. The death of defendant shall not cause the suit to abate, if the right of said defendant survives. ( 12 ) AN appeal - it is no gainsaying; is continuation of the suit. The death of defendant shall not cause the suit to abate, if the right of said defendant survives. In a suit for partition of a property jointly owned, the plaintiff and defendants are equally entitled to the relief as per their rights determined by the Court if the defendant has right to share his death never results in abatement of the suit as those who succeed to the defendant can always come on record whether it is at the stage of suit or at the stage of appeal. Indeed, in a case of this nature where suit for partition was dismissed by the trial Court and the appellate Court has allowed the suit, it would be sufficient procedural compliance if all the parties including the legal representatives of the deceased defendant are before the appellate Court. If no objection is raised by the parties, at the stage of appeal on this question, it would not be possible to accept any submission in collateral proceedings that the original suit which merged in the appellate order is a nullity and non est by reason of abatement. A reading of rules 1 and 4 of Order XXII of Code of Civil procedure, 1908 (CPC) would negative such submission. The submission of the learned counsel for respondent No. 16 is therefore devoid of merit and is accordingly rejected. (ii) The question of merger ( 13 ) IN the narration of facts as above, it is seen that against the judgment of the learned single Judge dt. 25-1-1996 in A. S. No. 734 of 1991, respondent No. 16 herein (respondent no. 12 in the appeal) filed L. P. A. No. 72 of 1996. The Division Bench by judgment dt. 29-12-1998 dismissed the Letters Patent appeal. Curiously, respondent No. 16 herein made original plaintiff Khader Nawaz Khan only as party respondent and gave up the case as against all other respondents mentioning in the cause title that "all other respondents are not necessary parties". It is therefore not possible to accept that the judgment of the Letters Patent Bench to which petitioners are not parties results in merger of the judgment of the learned Single judge. Further, subsequently, by order dt. It is therefore not possible to accept that the judgment of the Letters Patent Bench to which petitioners are not parties results in merger of the judgment of the learned Single judge. Further, subsequently, by order dt. 30-8-2001 in Review C. M. P. No. 3830 of 1999 the Division Bench allowed the review and reopened the Letters Patent Appeal. Aggrieved by the same, the legal representatives of the original plaintiff filed civil Appeal No. 1151 of 2003. The Hon ble supreme Court by order dt. 10-2-2003 allowed the same setting aside the order of the Division Bench in Review C. M. P. No. 3830 of 1999 and gave liberty to respondent No. 16 to challenge the original order in L. P. A. No. 72 of 1996. He filed S. L. P. (Civil) No. CC. 2962 of 2003 against L. P. A. No. 72 of 1996 and a three Judge Bench of the Supreme Court by order dt. 7-4-2003 dismissed the S. L. P. on merits as well. This only shows that the judgment of the learned single Judge became final insofar as other respondents are concerned by reason of the judgments of the Supreme Court. The doctrine of merger therefore does not come in the way of this Court in exercising its power under sections 152 and 153 of CPC. Further more, it is also well settled that doctrine of merger is not an inflexible rule to be pressed into service for defeating substantial rights. It is common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. In Kunhayammedv. State of Kerala the Supreme Court elaborately considered the doctrine of merger and laid down as under: the logic underlying the doctrine of merger is that there cannot be more than one decree of operative orders governing the same subject matter at a given point of time. When a decree of order passed by inferior Court, tribunal or authority was subjected to a remedy available underthe law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. When a decree of order passed by inferior Court, tribunal or authority was subjected to a remedy available underthe law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it eitherway-whetherthedecree or order under appeal is set aside or modified or simply confirmed it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. (emphasis supplied) ( 14 ) IT may also be mentioned that Letters patent Appeal is provided by reason of clause 15 of the Letters Patent. It is an intra- court appeal from the judgment/order of the learned Single Judge to a Division Bench. When, the judgment of the learned Single judge is reversed by the Division Bench, decree of the High Court would be in terms of division Bench judgment. But, if the Letters patent Bench confirms the judgment of the learned Single Judge by dismissing L. P. A. the decree of the High Court would be only in terms of the judgment of the Single Judge only. Therefore, the petitioners are justified in moving the learned Single Judge for amendment of the decree in terms of sections 152 and 153 of CPC. The submission of the learned counsel for respondent No. 16 is therefore rejected as devoid of merits. (iii) Tenability of applications under sections 152 and 153 ( 15 ) THE suit was filed for partition and separate possession. The plaintiff and defendants who are the legal heirs of late khader Nawaz Khan, admitted in their pleadings that plaintiff is entitled to one- fourth share and that legal heirs of Shahzadi bee, the sister of original owner is entitled to half share and that other two step brothers are entitled to one-fourth share. The plaintiff and defendants who are the legal heirs of late khader Nawaz Khan, admitted in their pleadings that plaintiff is entitled to one- fourth share and that legal heirs of Shahzadi bee, the sister of original owner is entitled to half share and that other two step brothers are entitled to one-fourth share. This Court while reversing the judgment and decree of the trial Court in O. S. No. 471 of 1987 noticed that Khader Hussain Khan, the plaintiff is entitled to seek partition of the property. In such circumstances whether it is permissible for this Court to exercise power under sections 152 and 153 of C. P. C. , and amend the decree specifying the shares of the plaintiffs and defendants who are entitled to. These two provisions read as under. 152. Amendment of judgments, decrees or orders clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. 153. General power to amend the Court may, at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. ( 16 ) BOTH the provisions deal with amendment of Judgments, decrees or orders as well as error in proceedings. Section 153 of C. P. C. , is a general power conferred on the civil Court to amend any defect or error in any proceeding in a suit for the purpose of determining the real question and issue raised by the parties in the proceedings. This power is not controlled by law of limitation and at any time it is competent for the Court to rectify the defect or error in the proceedings. Section 152 of C. P. C. , is part of the general amending power of the Court and specifically empower the Court to correct clerical or arithmetical mistakes in the judgments, decrees and orders or errors arising therein from any accidental slip or omission. This power of the Court also is not diluted by lapse of time. Section 152 of C. P. C. , is part of the general amending power of the Court and specifically empower the Court to correct clerical or arithmetical mistakes in the judgments, decrees and orders or errors arising therein from any accidental slip or omission. This power of the Court also is not diluted by lapse of time. Sections 152 and 153 used the terms clerical mistake , arithmetical mistake accidental slip or accidental omission or errors arising therein. The term/phrase "any defect or error in any proceeding" is also used. In the considered opinion of this Court, if the judgment or decree by inadvertence contains portions which are in contravention of the procedural law as contained in C. P. C. , or other procedural as well as substantive law, it must be treated as accidental omission, which is an error in the proceedings and which might result in defect of the proceedings in that it may have unintentionally failed to determine the real question or issue raised by the parties to the proceedings. Any omission or accidental slip in the judgment, which fails to determine the issue, does not bar the jurisdiction of the Civil Court to amend the decree - be it a preliminary decree or final decree. ( 17 ) IN M. Nagendruduv. V. Gundarayudu, this Court considered the question whether the Court taking aid from Section 152 of CPC can amend the decree for including subsequent interest in mortgage suit. Dealing with Section 152 of CPC, the Division Bench made the following observations: the words "the Court may order payment of interest to the mortgagee" occurring in Rule 11, leave no room to doubt that the award of subsequent interest is a matter which is purely within the discretion of the Court. The discretion has no doubt got to be exercised judicially and it is also true that Courts ordinarily award subsequent interest though not at the rate stipulated in the mortgage but it is certainly not obligatory on the Court to make a direction for payment of subsequent interest in each and every case. If in the circumstances of a particular case, the Court should think that it is unreasonable or unjust to direct payment of subsequent interest, it is free to refuse to make any such award. If in the circumstances of a particular case, the Court should think that it is unreasonable or unjust to direct payment of subsequent interest, it is free to refuse to make any such award. It is therefore clear that subsequent interest could be claimed if only there is a direction to that effect by the Court and not otherwise as it does not follow as a matter of course and cannot be claimed as of right. If, as found by the learned Judge, the discretion of directing payment of subsequent interest, vested in the court under Rule 11 (b) of order XXXIV C. P. C. was exercised in favour of the plaintiff though the rate alone at which that interest has got to be paid is not specified in the decree, it would certainly, be open to the plaintiff to ask for amendment of the decree under Section 152 C. P. C. as in that case the omission in question would undoubtedly be result of an accidental mistake committed while drafting the decree. (emphasis supplied) ( 18 ) WHAT flows from the above decision is that in case while delivering the judgment, the Court gives declaration in favour of either of the parties or decides an issue in favour of any one of the parties, and the same did not reflect in the decree, subsequently in exercise of powers under Section 152 of CPC, the court can always direct the amendment of the decree by way of correcting the omission. So to say, the intentional omissions in the judgment cannot be corrected by way of amendment, whereas unintentional omissions can always be amended under sections 151 to 153 of CPC. To the same effect, is the decision of the Supreme Court in Dwarka Das v. State of Madhya Pradesh wherein it is laid down as under. Section 152, C. P. C. provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. Section 152, C. P. C. provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of thejudgment, decree or order, Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees or orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. . . . (emphasis supplied) ( 19 ) IN Jayalakshmi Coelho v. Oswald joseph Coelho the Supreme Court held that any mistake in drafting the decree though such a point is discussed and decided in the judgment, is unintentional omission or mistake which cannot be attributed to the Court and therefore they can be corrected under section 152 of CPC. After referring to the earlier decisions of the Supreme Court as well as the decisions of the High Courts of madras, Oudh and Gauhati, the following observations were made. As a matter of fact such inherent powers would generally be available to all Courts and authorities irrespective of the fact whetherthe provisions contained under section 152, CPC may or may not strictly apply to any particular proceeding. As a matter of fact such inherent powers would generally be available to all Courts and authorities irrespective of the fact whetherthe provisions contained under section 152, CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise that is to say while passing the decree the Court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does mention in the order or the judgment or something which was intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the Court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be reconsideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought Court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Court s inherent powers as contained under section 152, CPC. It is to be confined to something initially intended but left out or added against such intention. On a second thought Court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Court s inherent powers as contained under section 152, CPC. It is to be confined to something initially intended but left out or added against such intention. ( 20 ) THE conspectus of these authorities would show that if in a particular suit the court is required to deal with the matter and grant relief in a specified manner but having decreed the suit either in favour of the plaintiff or in favour of the defendant, fails to issue a decree in accordance with the judgment, it is to be true (sic. construed) as unintentional omission requiring amendment under sections 152 and 153 of CPC. In case where the Court intentionally does not give relief though such relief was prayed, the subsequent application for amendment of decree would not lie. The Courts have always used the provisions of Section 152 liberally if the prayer for amendment does not involve correcting intentional omissions or does not involve reconsideration of the merits of the matter. While exercising the powers under sections 152 and 153 of CPC, the Court should remember that the power to amend does not permit the rectification of a mistake in the judgment and the amendment should be confined to something initially intended but left out or added against such intention of the Court. ( 21 ) IN the case on hand suit was filed by khader Nawaz Khan, the predecessor in title of respondents 1 to 6 claiming partition of suit schedule property and for declaration that he is entitled to one-fourth share in Matruka properties. In the plaint, he admitted that the defendants 1 to 9 (successors in interest of feroz Khan, brother of plaintiff) are entitled to one-fourth share and the defendants 10 and 11, the first petitioner herein and the father of the second petitioner herein, being sons of Shahzadi Bee, are entitled to half share in the suit schedule land. The suit was dismissed by the trial Court. This Court, however, by judgment dated 25-1-1996 allowed the appeal set aside the judgment of the trial Court and decreed the suit declaring that Khader Nawaz Khan being one of the coheirs is entitled to seek partition of the property. The suit was dismissed by the trial Court. This Court, however, by judgment dated 25-1-1996 allowed the appeal set aside the judgment of the trial Court and decreed the suit declaring that Khader Nawaz Khan being one of the coheirs is entitled to seek partition of the property. It is well settled that in a suit for partition the Court has to pass decree in accordance with Order XX Rule 18 of CPC. Be it noted that Order XX of CPC is entirely devoted to judgment and decree, though the rules contained therein are not exhaustive, nevertheless they do furnish guidelines for the Courts in delivery of judgments, contents of the decree and issue of certified copies of judgment etc. Rule 18 of Order XX of CPC reads as under. Decree in suit for partition of property or separate possession of a share therein. 18. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, - (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further direction as may be required. (emphasis supplied) ( 22 ) SUB-RULE (2) of Rule 18 of Order 20, cpc above, in plain terms, mandates that in a suit for partition, the Court shall pass a preliminary decree declaring the rights of several parties interested in the property and giving such further directions as may be required. When this Court allowed the appeal filed by the plaintiff, what was intended is declaration of the right of plaintiff to seek partition but also the inter se rights of other parties in the suit. When this Court allowed the appeal filed by the plaintiff, what was intended is declaration of the right of plaintiff to seek partition but also the inter se rights of other parties in the suit. As the plaintiff admitted in the plaint the rights of defendants 1 to 9 (respondents 7 to 15 herein) as well as the petitioners herein, the same ought to have been reflected in the decree as well. This is a clear case of unintentional omission in drafting the decree and therefore sections 152 and 153 of CPC as interpreted by the Supreme Court are attracted. The submission of the learned counsel for the 16th respondent that even a preliminary decree is clothed with the characters (sic. characteristics) of a final decision cannot be disputed. But in an application for amendment of the decree for correction of unintentional omission, does not in any manner take away the finality of the decision in the judgment. There fore, the objections to this petition raised by the counsel for the 16th respondent are wholly unsustainable. The other counsel appearing for other parties do not object to the relief sought in these applications. ( 23 ) ACCORDINGLY, for the reasons stated above, these applications are allowed and the decree in A. S. No. 734 of 1991 dated 25-1-1996 is directed to be amended allotting and dividing half share in the suit schedule property to the petitioners 1 and 2, one-fourth share to respondents 1 to 6 herein and one fourth share to respondents 7 to 15 herein. There shall be no order as to costs.