DHANAJI GANPATI GAIKWAD Vs. NAMDEO DIGAMBAR GAIKWAD

JUDGEMENT

(1.) In the above petition, notice came to be issued on 14 th March, 2011 indicating that the above Writ Petition would be taken up for final disposal at the stage of admission. Though respondents have been served, none appears on behalf of the respondents. Hence, in terms of the said notice, the petition is taken up for final hearing. Hence, Rule, made returnable forthwith and heard.

(2.) The order challenged in the above petition, filed under Article 227 of the Constitution of India, is the one dated 30 th July, 2010 by which order the application filed by the original plaintiffs for correction of the decree by invoking Section 152 of the Code of Civil procedure came to be rejected. The rejection is on the ground that the correction sought would not fall within the ambit of the said provision.jpc

(3.) It is not necessary to burden this order with unnecessary facts. Suffice it to say that the petitioners had filed Regular Civil Suit No. 84 of 2006 for partition and separate possession of the ancestral lands. One of the lands mentioned was Gat No. 950 amongst other lands mentioned in paragraph no.1 of the plaint. The said Gat No. 950 admeasuring 1 Hectare and 81 Ares was incorporated in the plaint as one of the suit properties on the basis of the 7/12 extract which the petitioners were issued by the Talathi as the land belonging to their family. The parties went on trial. In so far as the said Gat No. was concerned, it appears that no objection was raised on behalf of the defendants also. The suit ultimately came to be decreed by the judgment and order dated 6 th November, 2006. The said decree was thereafter put in execution and during the course of the execution proceedings it was realised that Gat No. 950 was erroneously mentioned as one of the suit properties instead of Gat No. 970. The petitioners, on getting the 7/12 extracts of Gat No. 950 as well as of Gat No. 970 and the certificates dated 15 th December, 2006 issued by the Gaon Kamgar Talathi, realised that the said Gat No. 950 was wrongly mentioned instead of Gat No. 970 which is their ancestral property. The petitioners, therefore applied for correction of the decree by filing the instant application Exh.1, by having recourse to Section 152 of the Code. The said application, as indicated herein above, came to be rejected on thejpc ground that the correction sought by the petitioners was not a clerical or arithmetical mistake which would fall within the ambit of Section 152 of the Code as the plaint discloses that it was Gat No. 950 and not 970.