SHANKERGOUDA Vs. GARANGOUDA

JUDGEMENT

(1.) Has the Court power under S. 152 C.P.C., to amend its judgment and decree sq as to correct a clerical or inadvertent error although such error had occurred on account of a mistake of the parties themselves in the pleadings? This question arises out of the application, I.A. II, made by the appellant. He has prayed for amendment of the judgment and decree in the above appeal, by substituting the figure 203 for the figure 304 denoting the survey number of the land in Kuralagere village which I held in this second appeal, to be the exclusive property of the appellant and directed its exclusion in the partition of the joint family properties between the appellant and the respondents.

(2.) In the affidavit accompanying I.A. II, the appellant has alleged thus: In the plaint he had stated that the land bearing Survey No. 304 of Kuralagere was purchased by him out of his separate funds and that it was not liable for partition. The correct survey number of that land is 203. It is only by a clerical mistake that he had stated the survey number of that land as 304. In para 8 of the written statement of plaintiff-2 who was later transposed as defendant-4 he had expresssly pleaded that the mention of S. No. 304 in the plaint was incorrect, but that as a matter of fact it was S. No. 203 known as "Ichigirin Hola". In para-1 of the additional grounds in the written statement of other defendants, that land was stated as bearing S. No. 203 and not 304. The plaintiff had also stated in his rejoinder that lands bearing Sy.Nos.203, 128 and 355 of Kuralagere village had been purchased by him and hence were not liable to partition. Unless this error in the Survey number Of the land is corrected in the judgment and decree in the second appeal, the decree cannot be executed.

(3.) The respondents have opposed I.A. II and have filed objections in which they have denied that mention of S. No. 304 in the plaint was due to a clerical mistake and that the correct number of the land referred to in the plaint as the separate property of the plaintiff, was 203. The respondents have pleaded that the appellant-plaintiff had omitted to include in the plaint schedule S. Nos. 355, 203 and 128 which were also joint family properties liable for partition, that by the terms of the decree as modified by this Court, all the four respondents have each got 1/5th share in SY No, 203 aLong with other joint family properties and that by the proposed amendment the respondents would be deprived of their legitimate shareS in that land, granted by the decree. They further pleaded that there was a serious dispute between the parties about the identity of the land and that as such it could not be said that the mistake in the plaint was either clerical or accidental.