ABDHU Vs. ASSAINAR

JUDGEMENT

(1.) Plaintiff in a suit for partition, where a preliminary decree for partition has already been passed and confirmed in appeal, filed an application in the final decree proceedings for amendment of the survey sub division number of the property described in the plaint schedule and the schedule attached to the preliminary decree. That application was allowed by the court under S.151 of the Code of Civil Procedure though the application itself was filed quoting the provisions contained in O.6 R.17, C.P.C.

(2.) During the course of inspection by the Commissioner in the final decree proceedings, the Commissioner has with the assistance of the Taluk Surveyor identified the properties in the presence of all the parties concerned and found that the correct survey sub division number of the property is 8/2 and not 8/3 as wrongly shown in Ext. Al document and the schedules attached to the plaint and the preliminary decree. The petitioner has no case even in the memorandum of revision that the property in question is not comprised in R.S. No. 8/2 as reported by the Commissioner. The only case put forward is that such a correction of the survey sub division number cannot be effected by the Trial Court when the preliminary decree passed in the suit has already been confirmed in appeal. It was argued that the preliminary decree passed by. the Trial Court has merged in the appellate decree and as such no correction can be effected either in the plaint or in the preliminary decree by the Trial Court. If at all such a correction can be carried out, it can only be done by the Trial Court. Strong reliance was placed by the learned counsel on the Full Bench decision of this Court reported in Kannan v. Narayani ( 1980 KLT 9 (F.B.). It was also submitted that even if it was found that the correction prayed for is allowable it could only have been allowed under S.152, CPC and not under S.151, CPC.

(3.) I do not think that there is any merit in the first contention raised by the learned counsel. In view of the fact that the amendment was prayed for in a pending final decree proceedings, I do not think that Kannan's Case (1980 KLT 9 (F.B.) has any application to the facts of the case on hand. As the final decree proceedings were pending, the records of the case was within the power of the court for effecting corrections as the one found out in the course of the proceedings in this case. Such a power can be exercised by a court in the course of the final decree proceedings is more or less clear from the decision of the Supreme Court reported in Samarendra v. Krishna Kumar ( AIR 1967 SC 1440 ) which decision was referred to and distinguished by the Full Bench in Kannan's case. It may be useful to quote the following passage from the Supreme Court decision wherein the Supreme court has referred to the observations of Lord Justice Bowen LJ. in Mailer v. Swire ((1885) 30 Ch.D. 239).