AMBIKA Vs. MOHANAN

JUDGEMENT

(1.) R .P.No.1120 of 2012 is for review of order dated 06.10.2009 on I.A.No.730 of 2009 in S.A.No.905 of 1994 of this Court. In O.P (C).No.1182 of 2013 though challenge is to Ext.P10, order allowing execution of the decree on the counter claim, learned counsel for petitioners submits that Ext.P10, order is not being challenged and instead, relief prayed for in O.P(C).No.1182 of 2013 is only for stay of execution proceeding until decision in R.P.No.1120 of 2012.

(2.) PETITIONERS are legal representatives of the deceased first plaintiff. He, along with others filed O.S.No.822 of 1980 in the first Additional Munsiff's Court, Neyyattinkara for partition of the suit property. First defendant who claimed to be a purchasers of the suit property raised a counter claim for recovery of possession and mandatory injunction. He alleged that plaintiffs trespassed into the counter claim schedule property, described as 71 cents and house situated thereon (out of a total extent of 78 cents and excluding 8 cents assigned to the defendants 6 and 7). 2

(3.) LEARNED counsel for petitioners/legal representatives of the first plaintiff contend that I.A.No.730 of 2009 was not maintainable. According to the learned counsel, none of the circumstances justifying correction of decree as provided under Sec.152 of the Code of Civil Procedure (for short, "the Code") existed in this case. It is argued that the trial court, first appellate court or this Court in second appeal has not granted any relief with respect to the counter claim raised by the first defendant. In such a situation, it was not proper for this Court to allow I.A.No.730 of 3 2009 as if what is involved is an arithmetical mistake or omission arising out of an accidental slip. Learned counsel has placed reliance on the decision in Jayalakshmi Coelho Vs. Oswald Joseph Coelho ((2001)4 SCC 181). It is also contended that claim made by the first defendant over 71 cents referred to in the counter claim schedule is not legally allowable.