T. RAGHAVENDRA SHANBHOGUE, S/O. PUNDALIKA SHANBHOGUE Vs. T. LAXMINARAYANA HATHWARA, S/O. VENKATACHALA HATHWARA

JUDGEMENT

(1.) 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.

(2.) 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 under Section 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.

(3.) 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 under Section 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].