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2006 DIGILAW 447 (ALL)

SAHODRA DEVI, ETC v. VIIIth A. D. J.

2006-02-14

BHARATI SAPRU

body2006
JUDGMENT Hon’ble Bharati Sapru, J.—The controversy involved in the writ petition No. 15135 of 1991 and the connected writ petition No. 19175 of 1997 the almost identical, as such both these writ petitions are being decided by a common judgment. 2. This writ petition has been filed against the two concurrent judgments, one passed by the trial Court on 17.3.1988 in case No. 4/74 of 1982 arising out of execution case No. 17 of 1981 dismissing the objection of the petitioners under Order XXI Rule 58, C.P.C. and second judgment i.e. judgment dated 13.2.1991 passed in the civil appeal No. 311 of 1998 filed by the same petitioners. 3. The facts of the case are that one Smt. Girja Devi-opp. Party No. 3 filed a suit for maintenance, which was allowed against her husband Shalig Ram. The suit was decreed in her favour and she sought to execute the same. In the claim petition filed by her, she mentioned two properties but house No. 66/42A, Kachhiyana Mohal, District Kanpur was not mentioned in the said plaint. After the passing of the decree in her maintenance suit on 13.3.1969 which was passed for a sum of Rs. 27,479.50, she sought an amendment in the schedule and claimed that house No. 66/42A, Kachhiyana Mohal, District Kanpur was also to be included in the property of her husband sought an attachment of the sale. At the time when an amendment was allowed, her husband Shalig Ram was already dead. 4. The petitioners who moved objections under Order XXI Rule 58, C.P.C. against attachment of the said property claimed that house in dispute i.e. house No. 66/42A, Kachhiyana Mohal, District Kanpur was not the property of Shalig Ram. Petitioners stated that house in dispute was originally mortgaged with one Mathura Prasad on 13.11.1902 and later on it was sold by way of a registered sale deed on 11.2.1903 in favour of Bhagwan Deen. True copy of sale deed has been filed as Annexure 4 to the writ petition. 5. Petitioners subsequently purchased the said property from Bhagwan Deen, who was brother of Shalig Ram on 16.6.1970. 6. True copy of sale deed has been filed as Annexure 4 to the writ petition. 5. Petitioners subsequently purchased the said property from Bhagwan Deen, who was brother of Shalig Ram on 16.6.1970. 6. On the date when the amendment application as filed by Smt. Girja Devi for amending the plaint i.e. 23.1.1972 to insert and include the disputed house also in the list of the property given in para 7 of the plaint, the property had already stood transferred to the present petitioners. 7. Petitioners also state that they were bona fide purchaser of the property from Bhagwan Deen for value and consideration and Bhagwan Deen had also filed a suit No. 313 of 1976, by which it was directed that name of Bhagwan Deen be mutated with regard to house No. 66/42A, Kachhiyana Mohal, District Kanpur. 8. Petitioners state that even though Shalig Ram died and a suit for maintenance which was decreed could not have been executed against him, the amendment was wrongly allowed, the property was included and thereafter attached. 9. Learned Counsel for the petitioners has raised argument that an amendment could not have been sought in the plaint after a decree had been passed in the maintenance suit. He also argues that Section 152 of C.P.C. is of limited jurisdiction. Once a decree is passed only rectification or arithmetical errors or any accidental slip or omission may be corrected but the section would not extend adding on fresh facts or to change the nature of the suit itself. The Section 152 C.P.C. is quoted below : “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." 10. This argument of the learned Counsel for the petitioners is sound. The provision above-noted clearly spells out as to what can be done, once a decree had been passed. In the present case, the decree had been executed in the year 1969. The amendment which was sought to include the property was clearly not in the nature of either a clerical mistake or arithmetical mistake nor it can be an accidental slip or omission. 11. In the present case, the decree had been executed in the year 1969. The amendment which was sought to include the property was clearly not in the nature of either a clerical mistake or arithmetical mistake nor it can be an accidental slip or omission. 11. The next argument as advanced by the learned Counsel for the petitioners is that the petitioner is registered owner of the property and even though the property was sought to be attached for execution of the decree passed in the maintenance suit, the petitioners were not impleaded as parties and therefore the suit could not have been executed against them. 12. The third argument made by the learned Counsel for the petitioner is that even though the executing Court cannot go beyond the decree as is a well-established principle but this proposition of law is confined to the parties in a suit and would not bind any third party interest. For this purpose, learned Counsel for the petitioner has cited AIR 1950 Bom 155 (M.N.S. Railways v. Roop Chand, Geetaji and another). 13. Learned Counsel for the petitioners has also argued that although the petitioners held good documents and proved the said documents before the Courts below during the hearing of their application filed under Order XXI, Rule 58, C.P.C, the other side did not produce any document to show that the husband of Smt. Girja Devi held any kind of title to the said property. 14. Learned Counsel for the petitioners has next argued that the sale deed of 1903 has been completely ignored and it was a material piece of evidence. In para 6 of the writ petition, the petitioners have referred to the sale deed and have stated that the sale deed was made in favour of Bhagwan Deen. In reply to this averment, no specific denial has been made for the said sale deed in para 25 of the counter affidavit. He has also argued that in the grounds of suit for maintenance, the present respondents were actually seeking cancellation of the sale deed made in favour of the petitioners. Learned Counsel for the petitioners has argued that although the impugned judgment referred to Power of Attorney given by Shalig Ram, there is no basis for coming to the conclusion that there was any such power of attorney. 15. Learned Counsel for the petitioners has argued that although the impugned judgment referred to Power of Attorney given by Shalig Ram, there is no basis for coming to the conclusion that there was any such power of attorney. 15. The theory of power of attorney given by Shalig Ram to Bhagwan Deen is without any evidence on record. The conclusion reached by the Courts below that power of attorney was given by Shalig Ram to Bhagwan Deen is without any basis. 16. In reply Sri Radhey Shyam has argued that the sale deed, as appended of the year 2003 as Annexure 4 is different from the sale-deed appended as Annexure RA-1 which is the original in Urdu, whereas the sale deed, which has been appended as true copy. In Annexure 4 to the writ petition, it is stated that Bhagwan Deen was Kayastha whereas in the original document, which is in Urdu appended as Annexure RA-1 to the rejoinder affidavit, the word referred over there is ‘Bhagwan Deen Aheer. 17. I have heard learned Counsel for both parties at length and I am of the opinion that the arguments made by the learned Counsel for the petitioner in respect of Section 152, C.P.C. are in substance and are liable to be accepted. 18. It is, therefore, clear that the plaint filed by Smt. Girja Devi could not have been amended after the decree had been passed. Only rectification of clerical or arithmetical mistakes in judgments arising out of accidental slip or omission may be done by the Court but it would certainly not include any adding of fresh facts which may change nature of suit, after the decree had been passed, any amendment which would change the nature of the suit itself would be bad. 19. Further the Courts below while examining the question as to whether the property in dispute had been sold of by Bhagwan Deen to the third party should have taken into consideration the fact that Shalig Ram was already dead in 1966. The suit for maintenance was decreed in 1969 and an amendment was sought as late in 1972. 19. Further the Courts below while examining the question as to whether the property in dispute had been sold of by Bhagwan Deen to the third party should have taken into consideration the fact that Shalig Ram was already dead in 1966. The suit for maintenance was decreed in 1969 and an amendment was sought as late in 1972. It is for this reason, the Courts below should have properly examined the sale deed executed in 1903 and also subsequent sale deeds so as to come to the conclusion whether Shalig Ram has any interest in disputed property at all and whether Smt. Girja Devi could claim through Shalig Ram any interest in the property in dispute and to get it attached for execution of the decree passed in her favour. 20. I am of the opinion that both the judgments of the Courts below suffer from error of law, which is apparent from the face of record of the case. As such both the judgments of the Courts below are quashed. 21. The writ petition is allowed but there will be no order as to costs. Petition Allowed. ———