VASANT LAXMAN DESHMUKH Vs. SAKHARAM LIMBAJI JADHAV

JUDGEMENT

(1.) An interesting question has been raised in this writ petition as to whether a plaint or a decree can be amended when an appeal against the original decree has become final. The said point arises out of the following facts,

(2.) There was an agreement between one Laxman Deshmukh and his sons and Sakharam Limbaji Jadhav in respect of sale of lands survey Nos. 39, 40 and 41 situated at village Salimba in Manjlegaon Taluka of Beed District. The total area of these three lands is 10 acres 26 gunthas. The price agreed between the parties was at Rs. 8,000. On the date of the Agreement of sale, an amount of Rs. 7,900 was paid by way of earnest money and Rs. 100 were to be paid at the time of the sale deed. The owner of the land fell out of the agreement and, therefore, Sakharam Limbaji Jadhav had to file Civil Suit No. 45 of 1968 for specific performance of the said contract against Laxman Deshmukh and his sons. The said suit was decreed on January 30, 1971 in favour of the plaintiff. In pursuance of the decree, the decree-holder riled a Darkhast bearing Darkhast No. 11 of 1973 on March 9, 1973. A draft sale deed was prepared on July 10, 1973 and a copy thereof was sent to the judgment-debtors for approval. The draft sale deed was objected by the judgment - debtors mainly on two grounds : (1) that the description of the property is not correct, and (2) the location of the mango trees was not properly shown. It was contended that the well is shown in the decree, to be in Survey No. 40, but, there is no well in the said survey number and it is in Survey No. 39. The correct position in respect of the mango trees is that one of them is in Survey No. 39 and remaining five are in Suvey No. 41. The decree passed in favour of the plaintiff showed that the said trees are in Survey No 40. By an application dated May 4, 1974, the decree-holder prayed for an amendment to the draft sale deed. The said application was allowed by the Executing Court. The judgment-debtors, feeling aggrieved by the said order, preferred an Appeal bearing Appeal No. 137 of 1575. The said appeal was allowed by judgment and order dated November 15, 1976 and the case was remanded for further inquiry. It further appears that Laxman, judgment-debtor No. 1, died on April 14, 1977 and no application for bringing his heirs and legal representatives on record was filed during the pendency of the execution petition. Accordingly, the said Darkhast was closed on September 12, 1977. It is, thereafter,on November 18,1977, the decree-holder filed another application for amendment to the plaint in Civil Suit No. 45 of 1968 and consequerrtly prayed for amendment of the judgment and decree This application was (nade under sections 151, 152, 153 read with Order VI. Rule 17 of the Code of Civil Procedure and it was, inter alia, contended therein that the description of the property in respect of the well and the standing mango trees have not been properly shown either in the agreement of sale or in the plaint or the decree passed by the Civil Court.

(3.) In the said application, besides the two original defendants, the name of the daughter of the deceased was also added. At this stage, it is necessary to state that the two sons of deceased Laxman were already parties to the proceedings and the daughter of the deceased was not a parly to the proceedings. The said application was resisted by the judgment-debtors on more than one ground. It was, inter alia, contended that Laxman died on April 14, 1977, that no application for bringing his heirs and legal representatives on record was filed, and that the name of Kamal wife of Sadashiv Joshi has been for the first time shown in the application filed by the decree holder on November 18. 1977. The said application to bring Kamal wife of Sadashiv on record is not within the period of limitation and, accordingly, the suit and the proceedings are totally abated and consequently, it was contended that an order passed in Regular Civil Appeal No. 137 of 1975 in the District Court, Beed, had become final and, therefore, the application for amendment of the plaint, judgment and the decree was not maintainable Lastly it was contended that the decree-holder is not entitled in law to get the decree amended at a late stage. The original suit and the appeal from the original decree were decided long back and the plaintiff, decree-holder, ought to have sought this proposed amendment while the original suit and the appeal were pending. It is further contended that unless the original agreement of sale is not amended or corrected, the plaintiff, decree-holder, cannot claim any right, title or interest other than those mentioned in the agreement of sale. Further it was contended in the said application that the proposed amendment is not legal inasmuch as there is no error or omission or mistake or accidental slip, which can be corrected by the Court while exercising the power under sections 152 and 153 of the Code of Civil Procedure.