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2017 DIGILAW 1262 (MP)

Satyavati Rokhel v. Kamlesh Patel

2017-12-13

S.A.DHARMADHIKARI

body2017
ORDER 1. In this petition under Article 227 of the Constitution of India, the petitioners have assailed the order dated 10.4.2017 (Annexure P-7) passed in Succession Case No.1/2013 by the Civil Judge Class-I, Maihar, District Satna; whereby, the application under section 151 read with section 152 of the Code of Civil Procedure, 1908 seeking correction of name in the cause-title has been rejected. 2. The brief facts leading to filing of this case are that the respondent No.1 filed a case under section 372 of Indian Succession Act against the petitioners claiming the outstanding amount in respect of her husband late Dadua Patel who was working as Gangman and died on 1.7.2012. During the pendency, an application under Order 1 rule 10 CPC was allowed and certain respondents were added. One of the non-applicant namely Kumari Aasha Patel died on 23.12.2014 and an application for deleting her name from the array of respondents was filed which was allowed by the Court below and her name was deleted. Thereafter a compromise took place between the parties and the matter was settled outside the Court. A joint application was moved under Order 23 rule 3 of CPC for issuing of Succession Certificate. The said application was partly allowed in respect of service benefits of the deceased employee and rejected the application in respect of property and other items. However, inadvertently, due to typing error the name of Kumari Nirasha Patel non-applicant No.5 could not be mentioned in the application and in her place name of Kumari Aasha Patel non-applicant No.4 was mentioned in the application under Order 23 rule 3 CPC inspite of the fact that Kumari Aasha Patel had already expired and her name has been deleted from the array of non-applicants. When the mistake was detected, immediately an application under section 151 read with section 152 CPC was moved for correction in the order dated 17.12.2016 with a prayer that the name of Kumari Aasha Patel be deleted and in her place name of Kumari Nirasha Patel be incorporated. The Court below has rejected the application vide the impugned order. 3. When the mistake was detected, immediately an application under section 151 read with section 152 CPC was moved for correction in the order dated 17.12.2016 with a prayer that the name of Kumari Aasha Patel be deleted and in her place name of Kumari Nirasha Patel be incorporated. The Court below has rejected the application vide the impugned order. 3. The learned counsel for the petitioner has invited the attention of this Court to the provisions of section 152 of CPC stating that 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. It is submitted that the mistake as pointed out by the petitioner has not been corrected by the Court below as such the petitioner is not in a position to take advantage of succession certificate issued in their favour. 4. The learned counsel for the respondents have no objection in case the name is corrected. Infact a joint application under Order 23 rule 3 CPC has been filed, as such there is no necessity to oppose the prayer made by the petitioners. 5. Heard the learned counsel for the parties. 6. On bare perusal of the order dated 17.12.2016, it can be seen that the name of Kumari Aasha Patel has been wrongly mentioned, whereas, it should have been Kumari Nirasha Patel. The learned trial Court has rejected the application on the ground that order in the case has already been passed and the mistake does not appear to be clerical error, therefore, looking to the facts and circumstances of the case, the application is liable to be dismissed. 7. Apparently, it can be seen from the language of section 152 of CPC that 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, it was incumbent upon the Court below to correct the said error when it was brought to the notice by the petitioners by filing application under section 152 of CPC. Thus, I am of the considered view that the learned Court below has failed to exercise the jurisdiction vested in it by law and has wrongly rejected the application filed by the petitioners. Accordingly, the petition is allowed and the impugned order dated 10.4.2017 (Annexure P-7) is hereby setaside. Consequently, the application under section 151 read with section 152 of CPC stands allowed. 8. The learned trial Court is directed to make necessary amendment/correction in the order dated 17.12.2016 as well as in the succession certificate. 9. Petition is allowed to the extent above. Jitesh Shrivastava for petitioners; S. Beohar for respondent No.1; Arvind Singh Gour for respondent No.2.