Kumbam Ram Reddy, S/o Late Narsimha Reddy v. Kumbam @ Jannapelli Bhanumathi, D/o Bal Bhagwan Reddy
2025-08-20
LAXMI NARAYANA ALISHETTY
body2025
DigiLaw.ai
ORDER : Laxmi Narayana Alishetty, J. The order dated 04.04.2023 passed in IA.No.462 of 2019 in OS.No.49 of 1989 on the file of Principal Senior Civil Judge, Bhongir, is under challenge in the Revision Petition. 2. Heard Sri Jalli Kanakaiah, learned senior counsel appearing for Sri Narendar Jelli, learned counsel-on-record for revision petitioner, and Sri Pulimamidi Shashidhar Reddy, learned counsel for respondent No.2. 3. The petitioner is defendant No.5, respondent Nos.1 and 2 are plaintiffs and respondent Nos.3 to 13 are defendants in the suit. 4. In nut-shell, the facts of the case, required for adjudication of the present Revision Petition, are that respondent Nos.1 and 2 filed suit in O.S.No.49 of 1989 for partition and separate possession of the suit schedule property. The petitioner entered appearance, engaged a counsel and filed written statement on 22.12.1992, but, later, he was set ex parte on 06.03.1996 as he failed to appear before the Court and there was no representation on his behalf and the suit was decree ex parte on 21.02.1998 and a preliminary decree was passed. Subsequently, the matter was carried in appeal to this Court vide AS.No.1260 of 1998 by the legal heirs of defendant No.6, who purchased the land from respondent No.3, and this Court vide order dated 26.10.2018 dismissed the said Appeal. Later, respondent Nos.1 and 2/plaintiffs filed two applications- IA.No.170 of 2019 for appointment of an Advocate Commissioner to fix the boundaries and allot their share in the suit schedule properties, and I.A.No.173/2019 for passing of the final decree. 4.1. In the meanwhile, the petitioner/defendant No.5 filed Appeal-ASSR.No.36454 of 2019 before this Court for amendment of preliminary decree and the same was returned and consequent thereto, he approached the District Court and filed Appeal along with an application for condonation of delay, however, the said application was dismissed as the delay was inordinate. Again, the petitioner/defendant No.5 along with respondent No.13 herein/defendant No.7 had preferred appeal against the ex parte decree vide ASSR.No.131 of 2021 along with an application-IA.No.101 of 2019 to condone the delay of 8030 days in preferring the appeal and the said application was dismissed by the District Court on 01.12.2021. Challenging the said dismissal order, they filed CRP.No.59 of 2022 and this Court after appreciating the material on record, dismissed the CRP, vide order dated 21.09.2022.
Challenging the said dismissal order, they filed CRP.No.59 of 2022 and this Court after appreciating the material on record, dismissed the CRP, vide order dated 21.09.2022. Thereafter, the petitioner along with respondent No.13 filed the present application-IA.No.462 of 2019 before the Principal Senior Civil Judge, Bhongir, to amend the preliminary decree by deleting the lands belonging to them which were shown as ‘A’ schedule land of preliminary decree passed in OS.No.49 of 1989. 5. The trial Court vide impugned order dated 04.04.2023 dismissed the said application with observation that petitioner and respondent No.13 herein had preferred appeal in ASSR.No.36454 of 2019 and the same was returned by the High Court on the point of jurisdiction and ultimately, it was dismissed by the District Court. Thereafter, they filed appeal- ASSR.No.131 of 2021 along with application vide IA.No.101 of 2019 for condonation of delay, however, the said application was dismissed and as such, the application is nothing but review and the Court cannot transverse beyond the scope of preliminary decree. Aggrieved by the same, the present Revision is filed. 6. Learned senior counsel appearing for the revision petitioner submitted that earlier, suit in OS.No.133 of 1986 filed for partition was decreed on 30.07.1986 under which the petitioner got subject lands on par with father of respondent Nos.1 and 2, therefore, the same could not have been included in the suit-OS.No.49 of 1989 filed by respondent Nos.1 and 2. He further submitted that the decree passed in OS.No.133 of 1986 has become final as no appeal is preferred against the same, therefore, including the lands of petitioner which are part of earlier decree is bad and the decree passed in OS.No.49 of 1989 is also unsustainable insofar as the properties allotted to the petitioner in the earlier suit-OS.No.133 of 1986 is concerned. 6.1. Learned counsel further submitted that the decree passed in the present suit is an ex parte decree and the same was challenged by filing appeal, however, unfortunately the same was dismissed on the ground of delay, therefore, the petitioner filed the application for deletion of lands belonging to them in preliminary decree and the trial Court, instead of allowing the application, dismissed the same on erroneous observations and as such, the impugned order is unsustainable and is liable to be set aside.
He further submitted that to meet the ends of justice, the trial Court ought to have allowed the application instead of dismissing the application, which will result in grave injustice and loss to the petitioner. He further submitted that the trial Court has ample powers to entertain the application filed by the petitioner, however, it failed to exercise the powers conferred on it under Section 152 CPC and hence, the impugned order requires interference by this Court. 7. In support of his contentions, learned counsel for petitioner relief upon the following judgments: (1) Koushik Mutually Aided Cooperative Housing Society versus Ameena Begum and another , 2024 (1) ALD 175 (SC) (2) Shakti Press Ltd., Nagpur versus Divya Shati Paper Mills Pvt.Ltd, Hyderabad ,2024 (1) ALD 797 (TS) (DB) (3). Esha Bhattacharjee versus Managing Committee of Raghunathpur Nafar Academy and others , (2013) 12 SCC 649 (4). Tandra Satyanarayana Rao versus Tandra Paparao and others , 1997 (2) ALT 474 (SB) (5). H.Krishnan and ors versus Mohammed alias Kunhan and ors. , AIR 2006 KERALA 135 (6). State Bank of Hyderabad versus B. Rangaswamy (deceased by LRs) and others, AIR 2004 ANDHRA PRADESH 91 (7). K. Rani versus Hanumaiah Goud and another , 2014 (6) ALD 387 (8). Pinipe Mallamma and others versus Kunche Chinna Mangamma and others , 2002 Suppl. (1) ALD 781 (9). Tilak Raj versus Baikunthi Devi (D) By LRs., 2009 (3) ALD 23 (SC) (10). Yempalla Ramaiah versus Pallamparthi Krishna Reddy and others , 2007 (4) ALT 677 (11). Syed Maqdoom Shah and another versus Basheer Khatoon and others , 2005 (5) ALD 602 (12). Inder Singh versus The State of Madhya Pradesh , 2025 INSC 382 8. Per contra, learned counsel for respondent Nos.1 and 2 submitted that the petitioner was set ex parte in the suit and he did not take steps to get the same set aside and consequently, the suit was decreed ex parte. The petitioner filed appeal assailing the ex parte decree along with an application for condonation of inordinate delay and the same stood dismissed.
The petitioner filed appeal assailing the ex parte decree along with an application for condonation of inordinate delay and the same stood dismissed. Subsequently, the petitioner along with respondent No.13 filed ASSR.No.36454 of 2024 seeking modification of the decree, however, the same was returned for want of pecuniary jurisdiction and subsequently, the same presented before the District Court along with an application for condonation of delay of 8030 days and the same was dismissed on 01.12.2021, against which CRP.No.59 of 202 was filed and the same was also dismissed on 21.09.2022. Thus, the judgment and decree passed in OS.No.49 of 1989 has become final. 8.1. Learned counsel further submitted that the scope of Section 152 CPC is very limited and under Section 152 CPC, the Court is empowered only to correct the clerical error or arithmetic mistakes in the judgments and the same cannot be invoked for substantial relief of modifying the decree and prayed to dismiss the Revision, as the same is devoid of merits. 9. In support of his contentions, learned counsel for respondent relied upon the judgment of the Hon’ble Supreme Court in Bijay Kumar Saraogi Vs. State of Jharkhand , [ (2005)7 SCC 748 ] wherein it is held as hereunder:- “ Section 152 CPC cannot be invoked for claiming a substantive relief which was not granted under the decree, or as a pretext to get the order, which has attained finality reviewed.” 10. This Court gave its earnest consideration to the submissions advanced by learned counsel for both the parties. Perused the entire material available on record. 11. The core issue that falls for consideration in this Revision is whether the trial Court under Section 152 CPC is empowered to amend the preliminary decree? 12. The judgment of this Court in Shakti Press Ltd., Nagpur ’s case (cited supra) and the judgment of the Hon'ble Supreme Court in Esha Bhattacharjee ’s case (cited supra), which were relied upon by the learned counsel for petitioner, are with regard to condonation of delay in filing the appeal when sufficient cause is shown. 13. In the present case, the issue as regards the delay is no longer res integra, as the same was already dealt with by this Court in CRP.No.59 of 2022, wherein this Court observed that the petitioner failed to explain sufficient cause for condonation of inordinate delay in approaching the Court. 14.
13. In the present case, the issue as regards the delay is no longer res integra, as the same was already dealt with by this Court in CRP.No.59 of 2022, wherein this Court observed that the petitioner failed to explain sufficient cause for condonation of inordinate delay in approaching the Court. 14. Therefore, the aforesaid judgments are not of relevance for adjudicating the present Revision. 15. In Tandra Satyanarayana Rao ’s case (cited supra) and State Bank of Hyderabad, Branch Wanaparthy ’s case (cited supra), it was categorically held that if there are any such errors arising from accidental slip or omission, they can be corrected subsequently not only in the decree drawn but even in the Judgment pronounced and signed by the Court. 16. In the instant case, there is no such mistake or slip or omission in the decree which the Court had originally intended to provide or grant such relief which was, however, omitted in the operative portion of the Judgment. Therefore, the said cases are not applicable to the present. 17. The judgment in Tilak Raj ’s case (cited supra), the Hon'ble Supreme Court held that any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice. 18. Coming to the present case, no clerical error is committed in the preliminary decree passed in OS.No.49 of 1989 which is to be rectified by the Court by exercising the inherent power under Section 152 CPC. 19. In K.Rani ’s case (cited supra), amendment of decree was sought as the boundaries mentioned in the decree did not tally with those found on physical inspection of the suit schedule property and therefore, the erstwhile High Court of Andhra Pradesh has permitted to amend the decree. 20. The present case is altogether on a different footing, i.e., the petitioner is claiming rights in respect of one of the schedules of preliminary decree passed in OS.No.49 of 1989 which has attained finality. Therefore, even remotely also, the said judgment is of no aid to the petitioner. 21. In Pinpe Mallamma ’s case (cited supra), there was a bona fide mistake in mentioning the correct survey number in the suit schedule property and as such, the same was ordered to be amended in the decree. 22.
Therefore, even remotely also, the said judgment is of no aid to the petitioner. 21. In Pinpe Mallamma ’s case (cited supra), there was a bona fide mistake in mentioning the correct survey number in the suit schedule property and as such, the same was ordered to be amended in the decree. 22. In the present, even as per the version of the petitioner, there is no such bona fide mistake with regard to extent or survey number or any such issue in the suit schedule property, on the other hand, he is seeking to delete one of the schedule properties from the preliminary decree passed in OS.No.49 of 1989. 23. In H.Krishnan’s case (cited supra), the High Court of Kerala permitted amendment of the decree for inclusion of certain survey numbers as it was not the case of the defendants that the said property does not belong to plaintiffs. 24. In the case on hand, no such circumstance akin to the aforesaid case exists, therefore, the same cannot be followed for granting relief in favour of the petitioner. 25. For adjudicating the issue involved in this Revision, it is relevant to refer to Section 152 CPC which reads as hereunder:- “ Section 152 - Amendment of judgments, decrees or o rders. 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.” 26. A bare reading of Section 152 CPC makes it clear that the Court is empowered to correct the clerical errors or arithmetic mistake in the judgment. Thus, the scope under Section 152 CPC is very limited and the same cannot be invoked for modification or amendment of the decree or for any other substantive relief. 27. At the cost of repetition, it is to be narrated that in the case on hand, the petitioner is seeking modification of the preliminary decree passed in OS.No.49 of 1989 by deleting schedule ‘A’ property there from. Earlier, the decree passed in OS.No.49 of 1989 was challenged by the petitioner along with respondent No.13 in two rounds of litigation, i.e., ASSR.No.36454 of 2019 and ASSR.No.131 of 2021, but was unsuccessful, as there was inordinate delay in filing the said Appeals, which was not properly explained by them.
Earlier, the decree passed in OS.No.49 of 1989 was challenged by the petitioner along with respondent No.13 in two rounds of litigation, i.e., ASSR.No.36454 of 2019 and ASSR.No.131 of 2021, but was unsuccessful, as there was inordinate delay in filing the said Appeals, which was not properly explained by them. Furthermore, this Court in CRP.No.59 of 2022 has affirmed the order passed in IA.No.101 of 2021 in ASSR.No.131 of 2021, whereby the said application filed to condone the delay in filing the Appeal seeking amendment of the decree in OS.No.49 of 1989 was dismissed by the trial Court. 28. The above chequered history of the case makes it abundantly clear that the preliminary decree passed in OS.No.49 of 1989 has attained finality. 29. The petitioner is claiming rights in respect of ‘A’ schedule property in preliminary decree passed in OS.No.49 of 189 on the ground that his rights in respect of the said property was crystallized in the judgment passed in OS.No.133 of 1986. 30. However, this Court, on close scrutiny of the record, found that the petitioner in his written statement filed in OS.No.49 of 1989 has not even mentioned about passing of the judgment and decree in OS.No.133 of 1986. In addition, it is pertinent to note that the petitioner having lost twice in getting the relief of amendment of the decree passed in OS.No.49 of 1989, again filed an application under Section 152 CPC for the very same relief, which is impermissible. 31. Further, it is not the case of the petitioner that he is seeking amendment of preliminary decree passed in OS.No.49 of 1989 as some clerical or arithmetic errors crept therein, whereas he is seeking amendment of preliminary decree by deleting A schedule property mentioned therein, which, in fact, amounts to interfering or reviewing or partly setting aside the preliminary decree passed by the trial Court which cannot be permitted either by invoking Section 152 CPC or while exercising the supervisory jurisdiction under Article 227 of Constitution of India 32.
The above view of this Court is fortified by the judgment of the Hon’ble Supreme Court in State of Punjab vs. Darshan Singh , [ 2004 (1) SCC 328 ] , wherein it is observed as follows : “The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the court concerned. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party, if at all, is to file an appeal or revision before the higher forum or review application before the very same forum, subject to the limitations in respect of such review.” 33. As regards exercising of supervisory jurisdiction by this Court under Article 227 of Constitution of India, the following judgments laid down the law and hold the field. (1) Garment Craft Vs. Prakash Chand Goel , [ (2022) 4 SCC 181 ] (2) K.Valarmathi and Others Vs. Kumaresan , (2022) 4 SCC 181 34. In Garment Craft ’s case (cited supra), the Hon'ble Apex Court held that the High Court while exercising the supervisory jurisdiction under Article 227 of the Constitution of India does not act as a Court of First Appeal to re-appreciate, re-weigh the evidence or facts, and that the power under Article 227 has to be exercised sparingly in appropriate cases. 35. In K.Valarmathi ’s case (cited supra), the Hon'ble Apex Court held that the power under Article 227 of Constitution of India is supervisory and the same cannot be invoked to usurp the original jurisdiction of the Court which it seeks to supervise. 36. In the light of the foregoing reasons and discussion, in the considered opinion of this Court, the trial Court has rightly dismissed the application filed by the revision petitioner/defendant No.5. This Court does not find any illegality or irregularity in the impugned order passed by the trial Court, warranting interference, and accordingly, the Revision Petition is liable to be dismissed. 37. In the result, the Revision Petition is dismissed. 38. Miscellaneous petitions pending, if any, shall stand closed. No costs.