SHANTHAMMA Vs. K S KRISHNA

JUDGEMENT

(1.) These three writ petitions are filed by the petitioners challenging the order dated 7.8.2015 passed by the Principal Judge, Small Causes and Senior Civil Judge Mysuru on I.A No.V in FDP No.6/1998.

(2.) W.P. No.38076/2015 is filed by respondent Nos.14 to 17 in RFA Crob.16/2001. W.P. No.40521/2015 is filed by defendant No.1. W.P. No.38476/2015 is filed plaintiff No.1(a), plaintiff No.1(f), plaintiff Nos.2 to 4 praying the Court to call for records in FDP No.6/1998 of the Court of Principal Judge, Small Causes and Senior Civil Judge Mysuru and to issue writ of certiorari or any other direction and to set aside the impugned order dated 7.8.2015 passed on I.A. No.V in FDP No.6/1998 by the Principal Judge, Small Causes and Senior Civil Judge Mysuru.

(3.) The application I.A. No.V was filed by legal representatives of defendant No.2 under section 152 of C.P.C. praying the FDP Court to correct the clerical mistake crept in the order dated 22.2.2001. Along with the said application, an affidavit was filed stating that the applicant/legal representative of deceased defendant No.2 came to know that a clerical (typographical) mistake has been crept in the operative portion of the order dated 22.2.2001. The Court while granting an option (rather preference) to buy suit "C" schedule property at a price of Rs.4.32 crores to the legal heirs of deceased defendant No.2 had alternatively ordered that the "C" schedule property be divided into distinct portion as per Annexure -B to the said order. However, while referring to the alternative relief, the Court has observed that in the event of failure to pay the balance amount before the date of actual division in the "B" schedule property, then the theatre has to be divided in seven shares as mentioned in Annexure -B which ought to have been shown as actual division in "C" schedule property instead of "B" schedule property and that it is apparent/clerical/typographical mistake. By going through the entire order, one can make out that the observation made in the operative portion of the order relating to the "C" schedule property had nothing to do with 'B' schedule property; in fact, regarding portion of "B" schedule property the operative portion itself is elaborate (as detailed in pages 36 to 39); the division of "B" schedule property has not been linked with the division of "C" schedule property and as such, the reference to the "B" schedule property in the operative portion of the order relating to the "C" schedule property is a typographical mistake apparent on the face of the record. As soon as this mistake came to his notice, he filed this application. The opponents have rightly construed the said order to "C" schedule property as could be seen from the appeal memorandum preferred before this Court in RFA No.353/2001 and hence, prays to allow the said application. The plaintiffs/respondents and respondent No.1, 8 and legal representatives of respondent No.9 have filed their separate objections to the said application. So also, respondent No.3 has filed detailed separate objection and defendant/respondents Nos.4 to 7 have also filed their separate objection statement and sought to dismiss the said application. After considering the merits of the application I.A. No.V ultimately, the FDP Court allowed the application and ordered for correction of the decree by order dated 7.8.2015.