SAKSENA BROTHERS PRIVATE LIMITED Vs. BHUDHAR CHANDRA BANERJEE

JUDGEMENT

(1.) This appeal on certificate arises out of a suit for partition brought by Bhudhar Chandra Banerjee, plaintiff-respondent on March 4, 1937. The plaintiff in that suit claimed one-half share in certain properties including, the properties situated on Jackson Lane, Calcutta. The suit was dismissed by the trial Court, but on appeal to the High Court there was a compromise between the parties and a preliminary decree was awarded in favour of the plaintiff on July 27 1945. A local commissioner was thereafter appointed to partition the property. The local commissioner submitted a report, and in accordance with his report, a final decree was prepared on February 14, 1947. In execution of the final decree, the parties were delivered possession of the property which fell to their share in August, 1947.

(2.) As mentioned above, the property, which was the subject-matter of the partition suit, included the property situated in Jackson Lane. One part of that property was allotted to the defendant and the same is stated to be numbered 4A, while the others part which is stated to be numbered 4B fell to the share of the plaintiff. The property which fell to the share of the defendants was purchased by Saksena. Brothers (P) Ltd. the appellant.

(3.) On March 11, 1959 an application was filed under Ss. 151 and 152 of the Code of Civil Procedure by the appellant before the trial Court for correction of the final decree on the ground that the local commissioner while effecting partition by metes and bounds had made wrong calculation of the area. It is stated that on account of that mistake the area in dispute was wrongly shown as having fallen to the share of the plaintiff. This application was allowed by the trial Court as per order dated October 16, 1963. The plaintiff thereupon filed an application under Section 115 of the Code of Civil Procedure to the High Court against the order of the trial Court. The High Court accepted the revision petition and dismissed the application under Ss. 151 and 152 of the Code of Civil Procedure as per order dated September 24, 1964. It is this order which is the subject-matter of this appeal.