RAMAN NADAR VELAYUDHAN NADAR Vs. JANAKI KARTHI

JUDGEMENT

(1.) This is an application filed by the first Respondent in C.M.A. No. 122 of 1996, who is the second Defendant in O.S. No. 135 of 1973, Munsiffs Court, Neyyattinkara, under Section 152 of the Code of Civil Procedure to correct certain errors arising from accidental slip or omission in the judgment in the C.M. Appeal. The suit was filed for partition of plaint A and B schedule items. A preliminary decree was passed on 17.2.1977. In the appeals filed therefrom, the preliminary decree was modified. Two applications were filed for passing a final decree; one by the Plaintiff and the other by the second Defendant. It would appear that in the application filed by the Plaintiff as I.A. No. 4307 of 1983, a final decree was passed. The final decree was challenged in A.S. No. 122 of 1985. It is stated by the counsel on either side that in the appeal, a modified preliminary decree was passed on 22.12.1989. Thereafter, on 27.8.1993, a final decree was passed pursuant to the judgment in A.S. No. 122 of 1985. That was challenged in A.S. No. 416 of 1993 by the second Defendant which was allowed and the case was remanded to the Trial Court as per judgment dated 9.1.1996. The order of remand was challenged by me Plaintiff in C.M.A. No. 122 of 1996. this Court disposed of C.M.A. No. 122 of 1996 as per the judgment dated 6.11.1997 and a final decree was passed. That final decree passed by this Court is sought to be corrected pointing out that there are errors arising out of accidental slip or omission.

(2.) The Commissioner appointed in the final decree proceedings submitted eight plans. The Commissioner suggested two modes of division; namely, (1) taking note of the convenient enjoyment of the properties by the parties; and (2) by allotting shares to the sharers in each and every item of property. The division coming under the first category was dealt with in plans I and II (marked as Exts.C1(a) and C1(b)). The division under the second category was made by the Commissioner as per plans III to VIII, which were marked as Exts.C1(c) to C1(h). The Trial Court accepted plans I and II and passed the final decree. As stated earlier, the final decree was challenged by the second Defendant in appeal and the appellate court set aside the final decree passed by the Trial Court and remanded the case to the trial court with a direction to appoint another Commissioner to divide the properties. The appellate court set aside all the plans and report submitted by the Commissioner. The Plaintiff challenged the order of remand in C.M.A. No. 122 of 1996. This Court set aside the judgment of the Appellate Court and, as stated earlier, a final decree was passed accepting the division mentioned in plans III to VIII instead of the division as made in plans I and II.

(3.) The second Defendant filed an application before the executing court under Section 152 of the Code of Civil Procedure to correct the final decree as passed in C.M.A. No. 122 of 1996. That application was dismissed by the executing court taking the view that it had no jurisdiction to correct the final decree which was passed by the High Court. The order of the executing court was challenged by the second Defendant in a Writ Petition, which was disposed of at the admission stage. The order passed by the executing court was set aside and that Court was directed to consider the application afresh. It was held that clerical or arithmetical errors could be corrected by the executing court. The Plaintiff filed a Review Petition in the Writ Petition pointing out that the Writ Petition was disposed of without hearing the Plaintiff and the affected parties. This Court allowed the Review Petition and held that the executing court has no jurisdiction to entertain an application for correction of the final decree, since the final decree was passed by the High Court and not by the Trial Court. It was also held that the second Defendant could approach the High Court for getting the decree corrected.