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2015 DIGILAW 1541 (KER)

Easwari Amma Prasannakumari v. Radhakrishna Pillai

2015-11-04

P.B.SURESH KUMAR

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ORDER : P.B. Suresh Kumar, J. This is an application filed invoking Section 152 of the Code of Civil Procedure (‘the Code’ for short) for correction of the property description in the schedule to the decree in the suit which was confirmed by this Court as per the decision in the second appeal. 2. The facts relevant for the disposal of the interlocutory application are the following: The second appeal arose from the suit OS No. 334 of 1988 on the file of the Munsiffs Court, Karunagappally. The petitioner in the application is the plaintiff in the suit. The suit was one for declaration of the right of easement of the plaintiff over the plaint B schedule pathway leading to the plaint A schedule property owned by her. According to the plaintiff, the plaint B schedule pathway is required for the beneficial enjoyment of the plaint A schedule property. The plaint B schedule was described in the plaint as a property comprised in survey No. 4863 of Thazhava Village having a width of approximately 12 feet and a length of 200 feet, connecting the plaint A schedule property and the Chakkuvally road situated on its south. Though the Trial Court found that the plaintiff has acquired a right of easement by prescription over the plaint B schedule pathway, it held that the width of the pathway is only 8 feet. Consequently, a decree was granted to the plaintiff declaring her easement right over the plaint B schedule pathway at a width of 8 feet and a length of 200 feet. A decree of prohibitory injunction restraining the defendants from causing obstructions to the plaintiff in the matter of using the plaint B schedule pathway as declared by the Court was also granted. The decision of the Trial Court was confirmed by the Appellate Court as also by this Court in the second appeal. According to the plaintiff, the defendants obstructed the use of the plaint B schedule pathway even after the decree and consequently she initiated proceedings for the execution of the decree. The execution of the decree was however objected by the defendants contending that the description of the plaint B schedule pathway is incorrect and that the plaint B schedule pathway as described in the decree does not connect the property of the plaintiff with the southern public road. The execution of the decree was however objected by the defendants contending that the description of the plaint B schedule pathway is incorrect and that the plaint B schedule pathway as described in the decree does not connect the property of the plaintiff with the southern public road. The plaintiff, thereupon, filed an application before the execution Court for appointment of an Advocate Commissioner to identify the plaint B schedule pathway. An Advocate Commissioner was appointed accordingly in the execution petition and the Advocate Commissioner so appointed filed a report after identifying the plaint B schedule pathway. It is stated by the Advocate Commissioner in his report that the length of the pathway connecting the plaint A schedule property and the southern public road is 248 feet and that the same is situated in survey Nos. 4860, 4861 and 4863 of Thazhava Village. The above interlocutory application was filed by the plaintiff, in the said circumstances, seeking orders to correct the property description in the schedule to the decree in the suit in tune with the report of the Advocate Commissioner. The prayers in the interlocutory application read thus: “1. In the description to the schedule to the decree, apart from survey No. 4863 shown therein under item No. 1, Sy. Nos. 4860 and 4861 may also be incorporated. 2. In the description portion, the length of the way may be permitted to be corrected as 248 ft instead of 200 ft, correspondingly in the operative portion of the judgment and decree, the length may be shown as 248 ft instead of 200 ft.” 3. Heard the learned counsel for the parties. 4. The learned counsel for the respondents/defendants vehemently contended that Section 152 of the Code can be invoked only for correction of clerical or arithmetical mistakes in judgments, decrees or orders and that the said power of the Court cannot be invoked for correction of the mistake occurred in the decree on account of the mistaken description of the suit property in the plaint as in the instant case. In other words, according to the learned counsel, the interlocutory application is not maintainable. 5. The contention raised by the learned counsel for the defendants as regards the maintainability of the application is no longer res integra. In Subramania Iyer v. Joseph George, 1959 KHC 39 : 1959 KLT 165 : 1959 KLJ 111 : ILR 1959 Ker. In other words, according to the learned counsel, the interlocutory application is not maintainable. 5. The contention raised by the learned counsel for the defendants as regards the maintainability of the application is no longer res integra. In Subramania Iyer v. Joseph George, 1959 KHC 39 : 1959 KLT 165 : 1959 KLJ 111 : ILR 1959 Ker. 239 : AIR 1959 Kerala 386 : 1959 KLR 105 , this Court negatived the said contention. The relevant portion of the said judgment reads thus: “The question how far a Court can under Section 152 amend clerical errors in a decree although the error may have first occurred in the parties’ pleadings and may have been merely copied from them in the decree has been the subject of some diversity of Judicial opinion. The language of the section does not exclude such mistakes and there would appear to be no reason for restricting the scope of the section as some Courts have held, to correction of errors made by the Court itself. Indeed mistakes having their origin anterior to the suit and repeated in the decree have themselves been corrected by exercise of jurisdiction under this section. Thus when there is an error in the description of mortgaged property owing to the accidential use of the word ‘west’ for ‘east’ Rahulghani v. Uma Shenkar, AIR 1944 Oudh 5 or the insertion of wrong survey number Satyanarayana v. Purnayya, AIR 1931 Mad. 260 and the error is repeated in the plaint and the decree, the Court has been held to have ample powers to rectify the error.” Further, it is now settled that the power to correct mistakes in the judgments and decrees is inherent in every Courts irrespective of the fact whether the provisions contained in Section 152 would apply to the given situation. In a case where it is found that something which the Court intended could not be achieved by the parties on account of a mistake crept in the judgment or decree, it would only advance the ends of justice to enable the Court to rectify such a mistake, although the mistake was one arose on account of the mistake committed by the parties in their pleadings. [See Jayalakshmi Coelho v. Oswald Joseph Coetho, 2001 KHC 1076 : AIR 2001 SC 1084 : (2001) 4 SCC 181 ]. [See Jayalakshmi Coelho v. Oswald Joseph Coetho, 2001 KHC 1076 : AIR 2001 SC 1084 : (2001) 4 SCC 181 ]. For the aforesaid reasons, I hold that the application is maintainable. 6. Coming to the merits of the application, the averments made in the affidavit filed in support of the application are not controverted by the defendants. In other words, the facts reported by the Advocate Commissioner in the execution proceedings as stated in the affidavit filed in support of the application are not in dispute. As noticed above, the specific case of the plaintiff in the suit was that the plaint B schedule property is a pathway connecting the plaint A schedule property with the southern public road and the same is necessary for the beneficial enjoyment of plaint A schedule property. The defendants also understood the said case of the plaintiff, as otherwise there was no reason for them to contest the suit. Since the Trial Court accepted the case of the plaintiff and declared that the plaintiff has prescribed a right of easement over the plaint B schedule pathway, it has to be reckoned that the Trial Court was proceeding on the basis that the plaint B schedule pathway connects the plaint A schedule property with the southern public road. Once it is reckoned that the Trial Court was proceeding as if the plaint B schedule pathway connects the plaint A schedule property with the southern public road, there cannot be any dispute to the fact that the decision of the Court was intended to enable the plaintiff to use the plaint B schedule pathway for access to the plaint A schedule property from the southern public road. The uncontroverted averments in the affidavit filed in support of the above interlocutory application indicate that the plaintiff is unable to enjoy the plaint B schedule pathway as intended by the Court on account of the mistaken description of the plaint B schedule pathway in the plaint on the basis of which the decree was prepared. The uncontroverted averments in the affidavit filed in support of the above interlocutory application indicate that the plaintiff is unable to enjoy the plaint B schedule pathway as intended by the Court on account of the mistaken description of the plaint B schedule pathway in the plaint on the basis of which the decree was prepared. Since what was intended by the Court by virtue of its decision in the suit could not be achieved on account of the mistake in the description of the suit property in the schedule to the decree, although the said mistake had occurred on account of the mistake in the description of the suit property in the schedule to the plaint, as held above, the said mistake is one liable to be corrected invoking the power of the Court under Section 152 of the Code, as otherwise, the decision of the Trial Court as confirmed by the Appellate Court and this Court would become meaningless. 7. The learned counsel for the defendants pointed out that if the decree is amended as claimed by the plaintiff, the same would take within its scope, properties of others also, who are not parties to the suit. There is nothing on record to indicate that the said factual allegation is correct. Further, there is no bona tides also in raising such an allegation as the said allegation, even if true, has nothing to do with the defendants In the result, IA No. 2376 of 2013 is allowed as prayed for. Hand over.