H KRISHNAN Vs. MOHAMMED ALIAS KUNCHAN

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order passed in I.A.No. 1557 of 1997 in I.A.No. 1522 of 1988 in O.S.No. 6 of 1978 of the Sub Court, Ottapalam. Plaintiffs are the petitioners. The plaintiffs filed the suit for partition of the plaint schedule property. Plaint Schedule property was described as property in Sy.No. 103/11 with kole measurement of 30 x 22. Four boundaries were also given.

(2.) First defendant in this case executed Ext.B2 deed by which the property was sold to the third defendant. The contention of the plaintiffs was that the sale deed is valid only on the share of the father and it is invalid regarding the other sharers.

(3.) A preliminary decree was passed by the trial court allotting 3/15 shares. The said decision was confirmed in appeal. In Second Appeal, this Court was pleased to grant 3/7 share to the plaintiffs. After the preliminary decree was confirmed, the petitioners filed an application for final decree. The commissioner measured 53 cents of property in Sy.No. 103/11. Subsequently, the commissioner measured the property on the basis of the boundaries. For this purpose, the commissioner went again and filed a report stating that if the boundaries are taken, the extent of the property will be 1 acre and 43 cents spread over in Sy.No. 103/4, 103/13 and 103/11. The plaintiffs then filed I.A.No. 1557 of 1997 to amend the schedule to the plaint and preliminary decree. The contention of the plaintiffs was that it was by a mistake that the other Sy.Nos. were not included and hence, a petition was filed under Section 152 and Order 6 Rule 17 of the Code of Civil Procedure. This was objected to by the respondents. It was contended that there was no mistake. Ext.B2 was produced in trial. No amendment was sought to be made then. It was further submitted that since the matter has gone upto the Supreme Court, the decree was merged with the order passed by the Supreme Court and the trial court has no jurisdiction to amend the preliminary decree, The court below dismissed the application on the ground that it cannot be said to be a mistake and further the decree was confirmed in appeal and only that the Appellate Court has got the power to amend the decree.