Sri. D. Nataraj Kamath vs Smt. B.R. Ragini and Sri. Mohammed Ali

Aravind Kumar, J.—Heard Sri. Shivarudra, learned counsel appearing for petitioner and perused the records. This revision petition is directed against an order passed by Additional City Civil and Sessions Judge, Bangalore dated 11.04.2012 in O.S. 4988/2009 whereunder application filed by the revision petitioner/defendant u/s 151 and 152 of C.P.C. seeking correction or rectification of the decree came to be dismissed. Parties are referred to as per their rank in trial court.

Respondent/Plaintiff filed a suit for permanent injunction against defendants and after contest suit came to be decreed by Judgment and decree dated 06.02.2012. Operative portion of Judgment reads as under:

O.S. 4988/2009 is decreed with costs".

The plaintiff is declared as the absolute owner in possession of the suit schedule property. The defendants and their persons are restrained by an order of permanent injunction from interfering with the plaintiffs peaceful possession and enjoyment of suit schedule property.

Accordingly, a Decree shall be drawn.

Sd/- Judge

Description of the suit schedule property as could be seen from the plaint produced along with present revision petition as document No. 5 would indicate the same to be as under:

SCHEDULE

All that piece and parcel of the property site, No. 40, katha No. 329/40, formed in A.M.S. Layout, now Annapoorneswari layout in Sy. No. 5, 5/A, 7/4A-1-P1 of Chikkabettahalli, Vidyaranyapura, Yelahanka Hobli, Bangalore North Taluk for an area of east to west 30 feet, North to South 40 feet with house and compound wall and bounded on the

East by : Property No. 41

West by : Property No. 39

North by : Road

South by : Property No. 49

Pursuant to above referred Judgment, decree has been drawn which is in consonance with the Judgment as well as plaint. Defendant is not aggrieved by said Judgment undisputedly. However, grievance of the defendant is that the description of the schedule property mentioned in the decree should be in accordance with Exhibit P-1 sale deed dated 18.02.1999 since the schedule in the decree is not described in accordance with the Judgment. On these lines an application under sections 151 and 152 of C.P.C. came to be filed by defendant. Perusal of the contents of application would clearly go to show that the stand of the defendant is inconsistent inasmuch as at one breath in the affidavit supporting the application defendant contends he is not aggrieved by said Judgment but in another breath he contends that decree is not in accordance with sale deed dated 18.02.1999 marked as Exhibit P-1.

Section 152 of C.P.C. enables the court to correct a clerical or arithmetical mistake in Judgment and decrees or orders or error arising there from by any accidental slip or omission which requires to be corrected by court and this power can be exercised by a court either suo motto or an application by any of the parties. Hon''ble Apex Court has repeatedly held that correction of the mistake or omission would relate to arithmetical or clerical mistake and it could be on account of omission of Judge''s inadvertence or advocate''s mistake. If a decree has been drawn which is not in accordance with the Judgment that would give a cause of action for the aggrieved party to seek for correction of such decree by taking recourse to section 152. Power u/s 152 cannot be equated to that of review power. Under the guise of correcting a mistake court cannot pass effective judicial order on merits. It has been held by Hon''ble Apex Court that only arithmetical mistake or slip can be rectified by a court as held in the case of Jayalakshmi Coelho Vs. Oswald Joseph Coelho, and it cannot pass judicial orders on merit as held in the case of Dwaraka Das Vs. State of Madhya Pradesh and Another, . As to whether omission to include solatium or interest in a award came up for consideration by Apex court and it has been held that it is not a clerical or arithmetical mistake u/s 152. ( Bai Shakriben (dead) by Natwar Melsingh and Others Vs. Special Land Acquisition Officer and Another, ).

Keeping these principles in mind when the facts on hand are re-examined it would indicate that defendant is seeking for modification of description of the schedule property in the decree contending inter alia that it is not in accordance with the very sale deed produced by plaintiff himself which is dated 18.02 1999 and marked as Exhibit P-1. It is not disputed that description as described under plaint schedule has been reflected in the decree that has been drawn. Thus, it cannot be held that decree drawn is not in consonance with the Judgment. Description of the property in the decree is also in consonance with the description of the property as described under the plaint schedule. If the plaintiff has omitted to specify or indicate the correct survey number or property number or if he has included a survey number or property number which is not in consonance with his sale deed it was for the defendant to have brought it to the notice of trial court and appropriate relief could have been sought at the time of passing of the Judgment or in the alternative he could have pursued his grievance on this ground after Judgment and decree came to be passed. He did not choose to take either of these two steps. On the other hand an application came to be filed u/s 151 invoking inherent power of the court order u/s 152 seeking correction of the decree on the ground there is erroneous description of the plaintiff''s property in the schedule to Judgment and decree. Infact Hon''ble Apex Court under similar circumstances viz., where a party contended that identification of the land is improper and sought for decree to be corrected by invoking section 152 held that such course is impermissible for the court in the case of Union of India (UOI) and Others Vs. Pratap Kaur (Smt) (Dead) through Lrs. and Another, . Trial court as such has rightly held that description of the property cannot be changed by court in the decree by taking recourse to section 152. Insofar as Judgment relied upon by learned counsel for petitioner in the case of Sri. Balachandra Vigneshwara Dixit Vs. Sri. H.S. Srikanta Babu and Others, by attempting to draw sustenance from paragraph 15 of the Judgment I am of the considered view it would not come to his rescue for the simple reason it is held in the very same Judgment that the power u/s 152 can be exercised by a court only to bring the decree to be in consonance with the Judgment rendered if the decree is at variation to the Judgment and it has been held recourse can be had to section 152 under such circumstances. In that view of the matter I am of the considered view that there is no merit in the revision petition calling for interference.

As such this revision petition is hereby dismissed without issuing notice on application for condonation of delay in filing petition, as undertaking of such exercise would be an exercise in futility.