MANIKA UDAYAR Vs. D A MUSTAFA

JUDGEMENT

(1.) BY consent of both the counsel, the civil revision petition itself is taken up for final disposal. The petitioners are the defendants in O.S. 44/86 on the file of the District Munsif, Rasipuram. The respondents herein filed the said suit for specific performance. The suit was decreed by the trial Court on 22.6.90. Subsequently the respondents herein filed an application I.A. 1842 of 93 under Sec. 152 C.P.C. to amend the decree in respect of the description of the property, since one of the boundaries had been wrongly mentioned. The lower Court had allowed the said application by order dated 14.10.93 without notice to the petitioners herein. Hence the petitioners filed an application I.A. 1874/93 to review and set aside the order dated 14.10.93 in I.A. 1842/93. The lower Court by order dated 20.12.93 dismissed the application filed by the petitioner. Aggrieved by the same, the petitioners have filed the present revision.

(2.) IT is the contention of the counsel for the petitioners that the Court below ought to have ordered notice in the application I.A. 1842/93 to the petitioners and only after hearing them the application ought to have been disposed of. The other objection raised by the counsel for the petitioners is that Sec. 152 C.P.C. has no application since the schedule of property has been given in the decree as stated in the plaint. Unless the plaint is amended, the decree cannot be amended. Only where the Court has committed a mistake in drafting the decree or if any inadvertant mistake had crept in the judgment, than the Court is empowered to amend the judgment or decree under Sec. 152 C.P.C.

(3.) I carefully considered the contention of both the counsel. In fact the counsel for the respondents referred to a judgment reported in Jayarama Pillai v. Union Bank of India (1991-II-MLJ-43) and claimed support to his contention that no notice is necessary to the petitioners. In fact, in that case the decree was amended since there was an accidental error in drafting the decree. The suit was filed on an equitable mortgage and the same was decreed. But while drafting the decree, the decree was drafted in the form of a money decree. Hence the amendmentt was sought for. There the Court has amended the decree without notice to the other side as the mistake was committed by the Court and not by any of the parties. Hence the learned Judge held that there is no neccessity for giving notice to the parties for an amendment under Section 152 C.P.C. which is for rectification of the clerical or arithmetical mistakes in the judgments, decree or orders etc. That principle may not be applicable to the facts of the present case, since in this case the mistake in respect of the description of boundary had been in existance from the date of filing of the plaint.