Ramsankar Bandopadaya and Others vs Khudiram Dutt and Others

Fazl Ali, J.—This application has been made u/s 115, Civil P.C., for revision of the order made by the Sub-Divisional Officer Munsif under Sections 151 and 152 of the Code.

It appears that in a decree obtained in a suit for contribution the decree-holders advertised for sale Khewat Nos. 11/1, 11/2 and 11/3 having an area of 47.28 acres and this property was purchased by the opposite party No. 1 in an auction sale for a sum of Rs. 500. Now the area of these khewats was originally recorded in the record of rights as 47.28 acres, but as a result of the decision of Suit No. 76/81 of 1931 instituted in the Court of the Assistant Settlement Officer it was held after'' the final publication of the record of rights that the area for khewat No. 7 of the village was recorded wrongly and that an area of 59.85 acres should be reduced from khewat No. 7 and should be recorded as part of khewat No. 11/1. After the sale the opposite party No. 1 made an application to the Court below that he had in fact purchased the right, title and interest of the judgment-debtors in the three khewats mentioned above comprising an area of 117.13 acres that this area was wrongly recorded in the sale proclamation and the sale certificate as 47.28 acres; and that these documents should be amended and the correct area mentioned therein. The learned Munsif granted this prayer and made the correction suggested. The petitioners have now presented this application in which they contend that the Court below had no jurisdiction to pass the order which it has passed either u/s 151 or Section 152, Civil P.C.

Section 151, Civil P.C., is a section which can be applied to make orders necessary for the ends of justice in those cases only where no other provision is applicable. Section 152 provides that clerical or arithmetical mistakes in judgments, decrees or errors arising therein from any accidental slip or omission may at any time be corrected by the Court. Before this section can be held to apply to a particular case, it must be shown that the alleged mistake is either clerical or arithmetical or due to an accidental slip or omission. This section cannot be invoked where the question before the Court is more or less of a contentious nature. In the present case the contention of the auction-purchaser is that the khewat numbers are the dominant description of the property purchased by him, whereas the contention of the judgment-debtors is that the description of the vended property by the area should prevail, because what was intended to be sold were such lands as were entered in khewats Nos. 11/1, 11/2 and 11/3 just after the publication of the record of rights and before the additional area was transferred to these khewats. The judgment-debtors also contend that if the entire area had been advertised for sale, they would have shown that the value for which it was being sold was inadequate.

It is not my desire to express any opinion as to the merits of these contentions here and it may be that after the whole matter is gone into the auction purchaser''s contention may be accepted; but I am strongly of the view that Section 152 is wholly inapplicable to a case like this. The property which has been purchased by the auction purchaser was advertised for sale at the instance of the decree-holders, and the question as to what they asked the Court to sell is by no means an irrelevant question and cannot be decided in their absence. The question which I have to consider is not whether the description of the property by the khewat number or its description by the area should prevail; but whether the case can be dealt with u/s 152, Civil P.C. As in my opinion the learned Munsif could not have dealt with the matter under Sections 151 or 152, I allow this application and set aside the order of the learned Munsif.

I must repeat that in the present proceeding it is not necessary to express any opinion as to the merits of the respective contentions of the parties. So far as the executing Court is concerned, it is enough that it has sold the property which was advertised for sale. What was conveyed by the sale is a matter of construction only and that construction can be put only in a properly constituted proceeding which I believe will be a suit either by the auction-purchaser or by the judgment-debtors. As I have already said the auction purchaser claims to have purchased 107 and odd acres, and his case is that he has acquired a good title to the whole of this land. If, therefore, the auction-purchaser is in possession of this area and the judgment-debtors want to establish that he is not entitled to the whole of this area, the judgment-debtors can do so by means of a suit. If, on the other hand, the auction-purchaser finds difficulty in taking possession of or retaining possession of this area, then it will be for the auction-purchaser to establish his claim which he asserts in respect of the land. So far as the Court below is concerned, the matter should have been left where it was. There will be no order as to costs.