SUNDARAM Vs. MANICKAM

JUDGEMENT

(1.) This Revision petition has been filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') against the order dated 21.12.2004 made in I.A. No. 492 of 2004 in O.S. No. 932 of 1995 on the file of the Additional Sub Court, Salem.

(2.) The third Defendant in the suit is the Petitioner herein and the first Respondent is the Plaintiff. The Plaintiff filed the suit for specific performance of the agreement for sale, dated 12.12.1991, as Exhibit-A1. The third Defendant was a subsequent purchaser of the suit property. The Defendants 1 & 2 were the persons, who executed the agreement in favour of the Plaintiff. Though the Defendants 1 & 2 contested the suit claim by filing a written statement, they have not participated in the trail, the Petitioner/third Defendant alone contested the suit. The Trail Court framed nine issues for consideration of which issue No. 3 would be relevant for the purpose of this case. Issue No. 3 is whether the purchase of the suit property made by the third Defendant by sale deed dated 11.02.1992 is a bonafide transaction. Before the Trail Court, the Plaintiff examined himself as PW-1 and two other witnesses were examined as PW2 & PW3 and nine documents were marked as Exhibits A1 to A9. The third Defendant examined himself as DW-1 and one Mr. Magalingham was examined as DW-2 and 17 documents were marked on the Defendants as Exhibits B1 to B17. The suit was decreed by the Trail Court by judgment and decree dated 10.02.2004.

(3.) Thereafter, the Plaintiff/first Respondent herein filed I.A. No. 492 of 2004 under Section 152 Code of Civil Procedure, and prayed for correction of the judgment and decree made in the suit. It was contended by the first Respondent that the prayer in the suit for specific performance was decreed against the Defendants 1 to 3 and paragraph 24 of the Judgment, the Court below gave a finding that the Plaintiff is entitled to relief as prayed for, but in the judgment and decree, it has been passed only against the Defendants 1 & 2 not against the Defendants 1 to 3. According to the first Respondent, it was an accidental slip and error and it is a clerical mistake. Further, it was contended that the Trail Court gave a categorical finding that the purchase of the third Defendant was not bonafide. Another rectification which was sought for is with regard to name of the Hon'ble Presiding officer in the Judgment. This application in I.A. No. 492 of 2004 was opposed by the Petitioner herein stating that the Petitioner is a bonafide purchaser for value without notice of the alleged agreement for sale Exhibit A1, and in the body of the Judgment, it has been stated that the property purchased by the third Defendant is different from the property agreed to be sold by the Defendants 1 & 2 under the suit agreement and this is a finding by the Court and it is not an accidental slip or error and the first Respondent cannot take recourse to Section 152 Code of Civil Procedure and his remedy is only to file an appeal against the said judgment and decree. The Trail Court by its order dated 21.12.2004 allowed the application as prayed for. Aggrieved by the same, the Petitioner is before this Court by way of this revision.