DEVARAJAN Vs. C.P. MYTHILI

JUDGEMENT

(1.) The 1st respondent herein is the plaintiff in O.S. No. 82 of 1982 on the file of Court of Subordinate Judge, Kanchipuram. The petitioners are defendants 8 to 12 in the said suit. The respondents 2 to 9 herein are the defendants 3 to 7 and 13 to 15.

(2.) The 1st respondent herein filed the suit against the petitioners and other respondents herein in O.S. No. 82 of 1982 on the file of the Court of Subordinate Judge, Kanchipuram, for partition and separate possession for 7/8 share in the suit schedule mentioned properties. The said suit was decreed on 13.08.1991 and preliminary decree was passed therein. Based on the preliminary decree, the 1st respondent filed application for passing of the final decree in I.A. No. 390 of 1992 and the said application was allowed and final decree was passed on 28.02.2003. Thereafter, the 1st respondent filed Execution Petition and during the execution proceedings, the 1st respondent herein found some typographical error in mentioning the survey numbers and filed application in I.A. No. 117 of 2007 in O.S. No. 82 of 1982, under Section 151 of CPC to amend the final decree. The said petition was allowed and challenging the order passed by the trial court, the petitioners/defendants 8 to 12 filed the present revision before this court.

(3.) The learned counsel for the petitioners would submit that without amending the preliminary decree, final decree cannot be amended and also the application filed under Section 151 CPC is not maintainable and without seeking the amendment in the plaint and preliminary decree, straight away, in the final decree, schedule of the property alone cannot be amended. The 1st respondent wants to delete 4 items of properties and wants to introduce 15 items of properties and substitute them in the final decree which is highly impermissible in law. The 1st respondent/plaintiff has not stated the reason for amending the final decree alone. The 1st respondent has not substantiated either by oral or documentary evidence to show that the entire village has been resurveyed and fresh survey numbers have been given to the suit properties. The learned Judge failed to see that the 1st respondent in her affidavit has stated that Survey No. 459/1C must be Survey No. 458/1C. But in Plaint, Preliminary Decree as well as Final Decree, the Survey No. 459/1C is not clearly mentioned whereas Survey Number 458/1C1 is correctly mentioned in the plaint and Preliminary Decree. Therefore, the learned Judge failed to consider the said fact and he has allowed the petition as if the 1st respondent has filed the amendment application in the suit pre-trial stage. The learned Judge failed to see that the amendment sought for differ with each other and introduce new and fresh items of properties in substitution of suit properties and no correlation is mentioned in the petition relating to suit properties sought to be amended. In this case, after passing of the final decree, 1st respondent has filed the application as if there is a clerical error and correction only in the final decree, which is not correct and suit was tried long back and decided on the Plaint Schedule Properties and that cannot be substituted by new properties and the remedy of the 1st respondent is to file fresh suit in respect of new properties. In order to substantiate the said contentions, the learned counsel has placed reliance on the judgment reported in 1998 (2) CTC 345.