Case Note & Summary
The petitioner, Balkrishna Naik, original defendant No. 3, challenged an order dated 05.07.2011 passed by the learned Principal District Judge, Latur, in Misc. Civil Application No. 12/2007, which allowed an application to amend the decree passed by the Appellate Court. The background of the case is a partition suit, R.C.S. No. 170/1976, filed by respondent Nos. 2 to 4 (plaintiffs) against the husband of respondent No. 1, Baburao, respondent No. 1 Indubai, and purchasers including the petitioner. The suit was decreed on 30.07.1980 by the Trial Court, declaring the plaintiffs entitled to 4/6th share in the suit property, which included agricultural land S. No. 41/A, admeasuring 9 acres 7 gunthas, among other properties. The decree also declared that sale deeds executed by defendant No. 1 in favor of defendants Nos. 3, 4, and 5 were not binding on the plaintiffs' shares. The matter went in appeal, and the Appellate Court confirmed the decree. Subsequently, the plaintiffs filed an application under Section 152 of the Code of Civil Procedure, 1908 (CPC) to amend the decree, pointing out that the survey number of the suit property was incorrectly mentioned as 'S. No. 41/A' in the decree, whereas the plaint and evidence referred to 'S. No. 41'. The learned Principal District Judge allowed the application, holding that it was a clerical error that could be corrected under Section 152 CPC. The petitioner argued that the amendment changed the nature of the decree and that the court had no jurisdiction to amend after the decree had become final. The High Court, after hearing both sides, dismissed the petition, holding that the amendment was merely to correct a typographical error and did not affect the merits of the case. The court noted that the final decree proceedings were still pending and that the correction was necessary to align the decree with the plaint and evidence. The court also held that even if the decree had become final, the court has inherent power under Section 151 CPC to correct clerical errors to prevent miscarriage of justice. The petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Amendment of Decree - Section 152 CPC - Clerical Error - The court allowed amendment of a decree to correct a typographical error in the survey number of the suit property from 'S. No. 41/A' to 'S. No. 41' as per the plaint and evidence, holding that such amendment is permissible under Section 152 CPC to rectify accidental slips or omissions without affecting the merits of the case (Paras 5-10). B) Civil Procedure - Final Decree - Inherent Power - Section 151 CPC - The court held that even if the decree had become final, the court has inherent power under Section 151 CPC to correct clerical errors in the decree to ensure that the decree reflects the actual decision of the court and to prevent miscarriage of justice (Paras 11-12). C) Civil Procedure - Partition Suit - Final Decree Proceedings - The court observed that the amendment of the preliminary decree in a partition suit does not prejudice the rights of the parties as the final decree proceedings are still pending and the correction is merely to align the decree with the plaint and evidence (Paras 13-14).
Issue of Consideration
Whether the learned Principal District Judge was justified in allowing amendment of the decree under Section 152 of the Code of Civil Procedure, 1908, to correct a clerical error in the description of the suit property, and whether such amendment could be allowed after the decree had become final.
Final Decision
The High Court dismissed the writ petition, holding that the amendment of the decree under Section 152 CPC was justified as it corrected a clerical error without affecting the merits of the case. The court also held that even if the decree had become final, the court has inherent power under Section 151 CPC to correct clerical errors to prevent miscarriage of justice. No order as to costs.
Law Points
- Amendment of decree
- Clerical error
- Section 152 CPC
- Inherent power of court
- Partition decree
- Final decree proceedings
