T. Raghavendra Shanbhogue vs T. Laxminarayana Hathwara and Others

K. N. Keshavanarayana

Appellant herein was Defendant No.6 in O.S. No.360/1966. The respondent was the plaintiff. The respondent filed the said suit for general partition and for separate possession of 1/4th share, to which he was entitled to.

There were as many as 15 defendants in the suit. One Pundalik Shanbhogue, the father of the appellant herein had been arraigned as Defendant No. 1. The said suit was contested. The Court passed the preliminary decree holding that the plaintiff is entitled for 1/4th share in Item Nos. 1 and 2 of the plaint schedule and he was also entitled for the mesne profits of the property allotted to him from the date of the suit, viz., 26.07.1966 till the delivery of possession of the said share to him. It appears that the preliminary decree was not challenged by any of the defendants. Thereafter, Final Decree Proceedings were initiated by the Respondent in FDP No.4/1970. After contest, the Court appointed a Commissioner for division of the properties. Accordingly commissioner divided 1/4th share of the plaintiff was identified and it was ordered to be given to him and the Final Decree was passed on 29.01.1979. Even in the final decree also the Court held that the plaintiff is entitled for the mesne profits at the rate of 51/4 Maniges of rice per year from the date of the suit till delivery of the possession as per the report filed by the Commissioner. The said final decree was questioned in appeal by some of the defendants in R.A. No.52/1979. The appeal came to be dismissed affirming the final decree passed by the trial Court. Thereafter, the respondent/plaintiff finding that, in the decree passed by the trial Court, there is no specific mention as to from whom he is entitled to recover the mesne profits, filed application -I.A.No.15 in FDP No.4/1970 u/s 152 of CPC seeking amendment of the decree to direct the 1st defendant to pay the mesne profits on the ground that he was the eldest member of the family and he was in control and management of the suit schedule properties including the property allotted to the share of the plaintiff. The application was opposed by the appellant as well as other respondents /defendants. The trial Court by a considered order dated 25.07.1991 allowed the said application and directed amendment of the decree to the extent that the plaintiff is entitled to recover the mesne profits from the 1st defendant. The said order was challenged in appeal by the legal representatives of the 1st defendant, who by then had expired, in R.A. No. 126/1999 before the Civil Judge (Sr.Dn.) at Kundapura. The Lower Appellate Court by the judgment dated 15.06.2005 dismissed the said appeal and affirmed the order of the trial Court. It is against this judgment, Defendant No.6 has presented this appeal.

I have heard the learned counsel for the appellant and perused the order and judgments under appeal.

It is the submission of the learned counsel for the appellant that the order of the trial Court and Lower Appellate Court allowing the application for amendment are perverse and illegal since the final decree drawn by the trial Court had merged with the decree of the appellate court and therefore, the trial Court had no jurisdiction to amend the decree. It is also his submission that the amendment sought was neither an arithmetical nor a clerical error, which could have been corrected in exercise of the power u/s 152 of CPC, therefore, the order passed by the trial Court and affirmed by the Lower Appellate Court is liable to be set aside. He also placed reliance on the decision of this Court reported in 1967 (2) Mysore L. J 317 [M. Loraga Shetty Vs. Sheik Abdul Latif Saheb and Others].

After hearing the learned counsel and on perusal of various orders, copies of which are produced along with this appeal, I am of the considered opinion that this appeal does not involve any question of law nor it has any merit. The appeal, to my mind is an unrighteous one, and is aimed at harassing the respondent who is struggling to get possession of his property for over 45 years. The litigation took birth in the year 1966 and even at the end of 2011, the respondent/plaintiff is still roaming round the corridors of the Court to get his legitimate share. At the first place, it is necessary to note that the trial Court disposed of the application on 25.07.1991. The appeal appears to have been filed in the year 1999. Perusal of the order of the Appellate Court does not indicate as to whether any application was filed to condone the delay in filing the appeal. It is not forthcoming as to how the appeal filed nearly 8 years after the date of the order came to be entertained and disposed of by a considered order on merits.

Be that as it may, the appellant who was the 6th defendant in the original suit as well as in Final Decree Proceedings is aggrieved by the order of the trial Court directing amendment of the decree holding that the plaintiff is entitled to recover mesne profits from Defendant. No. 1. Therefore, in law, the appellant/defendant No.6 is not an aggrieved person. However, he being one of the legal representative of the 1st defendant, could question that order.

Perusal of the preliminary decree as well as final decree drawn by the trial Court clearly indicates that the plaintiff was held to be entitled to recover the mesne profits from the date of the suit fill the date of delivery of possession of his 1/4th share. Thus the order clearly indicates that the plaintiff was entitled to recover mesne profits from all the defendants. It was a liability imposed on the defendants by virtue of the said decree to pay the mesne profits. That final decree was challenged by the defendants and the same was confirmed by the appellate court. No doubt, by the principles of merger, the decree of the trial Court merged with that of the appellate court. However, in the ease on hand, the appellate court has not modified the decree and it has merely affirmed the decree of the trial court. In the circumstances, the trial Court had all the power 10 amend its decree. The amendment sought was only to specify from whom the plaintiff could recover the mesne profits. The decree specifies that the plaintiff is entitled to recover the mesne profits, which means from all the defendants. However, the trial Court finds that the 1st defendant being the eldest member of the family, as kartha, was in the control and management of the joint family properties, therefore, he is liable to pay the mesne profits.

Having regard to the facts and circumstances of the case, the amendment sought would squarely falls within the scope of Section 152 of CPC since it is only a clerical error leading to an accidental slip of not mentioning as to from which of the defendants the plaintiff is entitled to recover the mesne profits, and now that has been made clear by the amendment. No prejudice has been caused to the appellant by such directions. The decision relied upon by the learned counsel is not applicable to the facts of this case, as in the said decision, the decree of the trial Court had been modified by the appellate Court, as such the trial Court had no power to amend its decree since its decree had been merged with the modified decree of the appellate Court. Under these circumstances. I find no error committed by the Courts below in allowing the application and directing amendment of the decree by specifying as to from whom the plaintiff to recover the mesne profits. The orders do not suffer from any illegality or irregularity calling for interference by this Court in the second appeal. The appeal does not involve any question of law muchless substantial question of law. Therefore, the appeal is dismissed with cost The cost of this proceeding is quantified at Rs.3,000/- (Rupees Three Thousand only), which the appellant shall pay to the respondents.