Mohan Himatsingka vs Mrs. Joyce Rout and Others

S.J. Mukhopadhaya, J.—The intervener Defendant is the Petitioner in this case and has challenged the part of the order dated 7th February, 1994 passed by learned Subordinate Judge, Dumka in Title Suit No. 21/63. By the impugned order the learned Court below ordered to deposit the record of the suit in the record room after impleading the petitioner as party to the suit.

A Title partition Suit No. 21/30 of 1963/86 was instituted by the Plaintiffs O.P. 1st set for partition to the extent of 1/3rd share in the suit properly in(sic) suit property were described in three schedules A, B and C, when suit was instituted on 11th June, 1966.

The suit property originally belonged to one Balhi Murmu, a Santhal lady, who married one Fredrick William Martin. Said F.W. Martin died in the year 1926 and Balhi Murmu died in the year 1958. The original land holder had three sons, namely, R. Martin (father of Defendant No. 1 to 1(c), H. Martin and P. Martin. Both R. Martin and H. Martin died in the year 1943 and P. Martin left finally for England in 1946.

The land holder had also two daughters, namely, Ms. F. Martin (mother of the Plaintiffs) and M. Martin (Defendant No. 2).

In the title partition suit, the Plaintiffs claimed 1/3rd share along with Defendant no.2 on the ground that they are governed by the Indian Law of Succession.

The Defendants 1 to 1(c), son and grand sons of original land holder objected the claim of the Plaintiffs on the ground that they are governed by the Santhal Customary Law of Inheritance and denied any share in favour of the Plaintiffs.

In the meantime, the Petitioner purchased certain plots out of the suit land by registered sale deeds dated 5th July, 1968, 25th March, 1968, 6th September, 1969 and 7th November, 1969 for adequate consideration from the Defendants 1 to 1(c), who had claimed absolute ownership with respect to suit property. Another Smt. Sita Devi Saraf, sister of the Petitioner also purchased a piece of land by registered sale deed dated 7th November, 1969 from Defendants 1 to 1(c). Smt. Sita Devi Saraf subsequently gifted such piece of land to the Petitioner by registered deed of gift dated 13th November, 1979.

According to the Petitioner, at the time of purchase of part of the suit land, he or his sister Smt. Sita Devi Saraf had no knowledge relating to partition suit. The Petitioner developed the plots in question after making huge investments and raised permanent structures over the purchased land. He has been running cold storage, timber sawing unit, timber seasoning and treatment plat and also doing agency business of jeep cars in automobile body building work.

The judgment was delivered in the suit on 25th January, 1988. The learned trial Court held that the parties are governed by the Indian Succession Act and, accordingly, the Plaintiffs were entitled to 1/3rd share in the suit properties. The preliminary decree was prepared on 25th November, 1988, whereinafter the Plaintiffs took steps for the preparation of final decree. An Amin Commissioner was appointed to carve out separate Takhta in the suit proceeding, in accordance with the shares of the parties. It is alleged that an Amin Commissioner without making any spot inspection prepared separate pattis on 23rd March, 1988 each for the Plaintiffs, Defendants 1 to 1(c) and Defendant No. 2. Later in pursuance of the Court''s order dated 8th July, 1989, the Amin Commissioner prepared separate pattis of 1/12th shares each for Defendants 1 to 1(c), out of their allotted combined 1/3rd shares.

In the meantime, an application was filed on behalf of Defendants 1 to 1(c) requesting exchange of the lands which had been allotted to them with the lands allotted to the Plaintiffs. In other words, the lands including the lands, which had been purchased by the Petitioner and was originally allotted to the patti of Defendants 1 to 1(c) along with some other lands were sought to be exchanged from the land allotted by patti to the Plaintiffs. The Court below, by order dated 9th June, 1988 allowed the prayer and directed the Amin Commissioner to exchange the patti as was prayed for. A fresh patti was prepared by the Commissioner which resulted allotment of the land purchased by the Petitioner from Defendants 1 to 1(c) to the Plaintiffs.

According to the Petitioner, when he came to know, of the suit and collusive exchange relating to allotments of lands between the Defendants and Plaintiffs, which resulted the land purchased by the Petitioner allotted to the Plaintiffs, he moved before the Court below on 4th October, 1988 to implead him as party intervener in the final decree proceeding. The petition was entertained by the Court on 25th November, 1988 and by order dated 13th June, 1989, the learned Court held that the schedule D property being added by amendment on 30th September, 1966 i.e. subsequent to the sale in favour of the Petitioner, such plot of land was not hit by the principle of lis pendens. However, so far as the lands which was shown as schedules A, B and C are concerned, the Court below rejected the prayer on the ground that there cannot be any variation in the final decree from the preliminary decree and, therefore, the Court was not competent to add any party at the stage of final decree.

Being aggrieved against the order aforesaid dated 13th June, 1989, Petitioner moved before this Court in Civil Revision No. 1738/89. The Civil Revision was decided on 22nd December, 1992, when this Court set aside the order dated 13th June, 1989 and directed the trial Court to add the Petitioner as party to the suit.

While the Civil Revision was pending before this Court, the final decree was passed in the suit on 31st August, 1989 against which the Petitioner preferred Title Appeal No. 26/91 before the learned District Judge, Dumka. The said Title Appeal No. 26/91 was taken up on 15th April, 1993, when the appellate Court taking into note order of this Court dated 22nd December, 1992 passed in Civil Revision No. 1738/89 declared the appeal as infructuous as the Petitioner was ordered to be impleaded as a party to the suit.

The Petitioner, thereafter, when agitated the matter before the trial Court to pass order in terms with this Court''s order dated 22nd December, 1992 in C.R. No. 1738/89 learned Subordinate Judge, Dumka passed the impugned order dated 7th February. 1994. By the impugned order, while the Court below impleaded the Petitioner as party intervenor, did not choose to pass any order on merit and ordered to deposit the record in the record room.

It was in the aforesaid circumstances, the Petitioner has preferred this Civil Revision Application; The main contention of the Petitioner is that he will be made remediless, if no order is passed on merit in the Title Suit No. 21/63 in which he has been impleaded as party as tile appeal has already been made infructuous because of the fact that the Petitioner has been impleaded as party to the suit

According to the counsel for opposite party Nos. 1 and 5 to 8 no relief can be granted to the Petitioner in the (sic) Revision Application as no further order can be passed in the suit, after preparation of final decree. It was submitted that the (sic) decree having been signed and the trial Court become functus officio and thus rightly ordered to deposit the record in the record room without passing any order on merit, after impleading the Petitioner at party to the suit.

According to the opposite parties in fact the order of this Court dated 22nd December, 1992 passed in Civil Revision No. 1738/89 is of no avail to the petitioner the Civil Revision having become infructuous, the final decree having signed and passed earlier.

I have heard the parties and perused the enclosures attached to the Civil Revision Application, including the impugned order.

The settled principle is that a party cannot be rendered to be remediless. In the present case, the Petitioner earlier moved in title appeal against the final decree, which was declared as infructuous on the ground that the Petitioner was impleaded as party to the suit by the order of this Court. The appellate Court had knowledge that the suit has been finally decreed.

The trial Court complied with the order and direction of this Court dated 22nd December, 1992 passed in C.R. No. 1738/89, though the final decree has been prepared and signed by that time.

It is a settled law that after preparation of final decree, no substantive change can be made resulting amendment in the judgment, but it does not take away the inherent power of the trial Court to make necessary amendment in the final decree in consonance with the judgment.

This Court in Shyamal Bihari Mishra and Others Vs. Girish Narain Missir and Another, held that an amendment of decree in confirmity of the judgment can be made by the Court in the exercise of its inherent power u/s 151 Code of Civil Procedure.

The Bombay High Court in Namdeo Amrut Gohane Vs. Narayan Shamrao Deshmukh and Another, held that u/s 151 of Code, the Court in interest of justice can pass an order even correcting the decree except where it is prohibited by Court or other statutes. However, such correction of decree must be in confirmity to the judgment intended to be enforced by it. The amendment, of course, cannot be allowed, If it is not in furtherance of judgment.

In the present case, I find that while the learned Subordinate Judge, Dumka allowed the Petitioner to be impleaded as party Intervenor in the suit in pursuance of this Court''s order even after the final decree, the Court below has not discussed the fact as to whether any amendment could have been made in the final decree on the basis of the objection of the Petitioner or not.

According to me, the Court below should have heard the Petitioner with respect to his objection relating to exchange of Takhta and in the interest of justice should have find out as to whether necessary amendment can be made in the final decree or not in confirmity with the judgment, by exercising his inherent power u/s 151 of the Code.

As the Court below has failed to excise its jurisdiction so vested u/s 151 Code of Civil Procedure, I set aside the portion of the impugned order dated 7th February, 1994 passed by learned Subordinate Judge, Dumka in Title Suit No. 21/63, by which it was ordered to deposit the record in the record room. The case is remitted to the trial Court to decide, after hearing the parties, as to whether necessary amendment can be made in the final decree or not, without disturbing intent of the judgment, on the basis of the objection raised by the Petitioner, by exercising inherent power u/s 151 Code of Civil Procedure.

The Civil Revision Application is allowed with the aforesaid observation and direction. No costs.