GEORGE Vs. MARIAM ALIAS MARY

JUDGEMENT

(1.) I am afraid that the learned District Judge has erred in reversing the decision of the learned Subordinate Judge; and my reasons will appear presently.

(2.) THERE was a suit for partition in which a preliminary decree was passed. The matter was taken up to the High Court and the High Court varied the preliminary decree, so that the preliminary decree became a decree of the High Court. Subsequently, when proceedings for passing a final decree were started and when a commissioner visited the properties, a mistake came to light regarding the description and survey numbers of one item of property. The plaintiff then filed I. A. No. 376 of 1960 before the Subordinate Judge's Court praying for correction of the survey numbers, description etc. of the property. The Subordinate Judge after taking evidence held that the amendment sought was merely a rectification of mistakes in the schedule of properties and not adding any new item of property to the schedule. The counsel of the contesting 1st defendant also agreed before that court that if it was merely a correction of a mistake and not any addition of a new item of property, the amendment might be allowed. The Subordinate Judge accordingly amended the preliminary decree. In pursuance of the amended preliminary decree a final decree was passed; and the 1st defendant appealed against that final decree before the District Court. The district Judge set aside the final decree observing that what was done by the subordinate Judge was to add two items of properties to the preliminary decree in the place of one of the original items. He also held that the application for amending the preliminary decree should have been filed before the High court, as it was the preliminary decree passed by the High Court that was. sought to be amended.

(3.) IT is argued by the learned counsel of the contesting respondent (1st defendant) that the order of amendment passed by the Sub-Court being one without jurisdiction, the parties could have ignored it. I do not think so. At any rate, I do not propose to pronounce any final opinion on that question; because, in the view I have taken that I. A. No. 376 of 1960 was riot a proceeding in the final decree proceedings, the order of the District Judge has to be vacated.