Case Note & Summary
The case arises from a partition suit filed by Anantrai against his brothers and others for partition of properties left by their father Ramshankar Upadhyay. The Trial Court decreed the suit granting 1/5th share to each of the five sons: Anantrai (plaintiff), Arvind, Vasant, Sharad, and Girish (defendant No.4). The decree was confirmed by the First Appellate Court, the High Court in Second Appeal, and the Supreme Court. Subsequently, Girish filed an application under Section 152 CPC before the Trial Court seeking amendment of the preliminary decree to reflect that Arvind's 1/5th share in suit property No.3 should be transferred to Girish, based on a sale deed dated 17.01.2000 executed by Arvind and his family in favour of Girish and Chirag (as partners of Everest Bakery). The Trial Court rejected the application, and the High Court dismissed the challenge. Girish then filed a review petition and the present application before the High Court. The High Court, relying on the Supreme Court's decision in B. Boraiah v. M.G. Thirthaprasad, held that since the Second Appeal was decided on merits, the Trial Court lacked jurisdiction, but the High Court could entertain the application. However, on merits, the court found that the claim was not based on an accidental slip or clerical error; the sale deed was never pleaded or considered during trial, and the issue of Arvind's share being transferred to Girish was not raised at any stage. Moreover, the property was purchased by Girish and Chirag as partners of Everest Bakery, and Girish alone could not claim the share without accounting for the partnership. The court rejected the application, holding that Section 152 CPC cannot be used to introduce new claims or correct alleged omissions that were never part of the proceedings.
Headnote
A) Civil Procedure Code - Amendment of Decree - Section 152 CPC - Accidental Slip - The court held that the power under Section 152 CPC is limited to correcting accidental slips or clerical/arithmetical mistakes, not to introduce new claims based on events not pleaded or considered during trial. The application seeking to transfer 1/5th share from one co-sharer to another based on a sale deed executed during pendency of suit was rejected as it did not fall within the scope of Section 152 CPC (Paras 14-18). B) Civil Procedure Code - Jurisdiction - Section 153A CPC - Correction of Decree After Appeal - Following the Supreme Court's decision in B. Boraiah v. M.G. Thirthaprasad, the court held that where the High Court has decided the appeal on merits (not dismissed under Order XLI Rule 11 CPC), the Trial Court has no jurisdiction to entertain an application for correction of the decree; the High Court itself has jurisdiction. However, the application was still rejected on merits (Paras 10-13). C) Partnership Law - Property of Firm - Sale Deed in Favour of Partners - The court noted that the sale deed was executed in favour of Girish and Chirag as partners of Everest Bakery, and the property belonged to the partnership firm. Girish alone could not claim the share without accounting for the firm's dissolution or distribution of assets (Para 17).
Issue of Consideration
Whether the High Court can amend a preliminary decree under Section 152 CPC to reflect a sale deed that was not pleaded or considered during trial, and whether the Trial Court had jurisdiction to entertain such application after the decree was confirmed on merits by the High Court.
Final Decision
The application is rejected. The court held that the claim does not fall within the scope of Section 152 CPC as there is no accidental slip or clerical error; the sale deed was never pleaded or considered, and the property was purchased by partners of a firm, so Girish alone cannot claim the share.
Law Points
- Section 152 CPC
- Section 153A CPC
- accidental slip
- correction of decree
- jurisdiction of trial court after appeal decided on merits
- partition decree
- sale deed effect
- partnership property
