SATYANARAYANA RAO T Vs. T PAPARAO

JUDGEMENT

(1.) This revision petition is filed questioning the orders of the I Addl. District Munsif, Rajahmundry dated 5-11-1992 dismissing I.A.No. 1182/91 in O.S. No. 1204/1973 which was filed for amendment of the Judgment and preliminary decree passed in the suit.

(2.) The plaintiff in the suit O.S. 1204/73 who is the brother of the present petitioner, had filed the said suit seeking partition and separate possession of his 1/5th share in the plaint schedule properties against the present petitioner who was the second defendant in the suit and some other defendants. The petitioner contested the suit contending that he is also entitled for 1/5th share in the suit properties. The said suit was disposed of on 24-10-1981 passing a preliminary decree. It was directed in the said decree that the plaintiff is entitled to 1/5th share in items 1 to 4 and some other items in A-Schedule and 1 /6th share in some other items of A & B Schedules. Under issue No. 6 framed in the suit, it was found by the trial Court that the petitioner herein is also entitled for 1/5th share in items 1 to 4 of plaint A-Schedule. But in the operative portion of the Judgment there was no mention about the share for which the petitioner was held to be entitled in the properties and as such, nothing was mentioned in the preliminary decree also about the share of the petitioner in the family properties. The petitioner subsequently filed I.A.No. 248 of 1982 seeking appointment of Commissioner for partition of his share and for ascertaining profits. But the trial Court rejected his request for partition of his share in the properties on the ground that the findings given under issue No. 6 in the suit were not carried out in the operative portion of the Judgment and in the preliminary decree drafted in pursuance of such Judgment and as such, the petitioner was not entitled to seek any relief for partition. In view of such circumstances, the petitioner filed I.A.No. 1182/91 under Sections 151, 152 and 153 C.P.C. seeking amendment of the Judgment so as to carry out the finding given under issue No. 6 and consequent amendment of preliminary decree relating to his 1/5th share in the family profits.

(3.) The respondents 2, 3 and 4 in that petition, who are also made as respondents in the present revision petition, contested the said application contending that the amendment of the Judgment and decree as prayed for cannot be permitted under Secs. 151, 152 or 153 C.P.C. as there was no clerical or arithmetical mistake in the Judgment and Decree; that if he was aggrieved by the Judgment and Decree as passed by the trial Court, he ought to have questioned the same by filing appeal, revision or review of such Judgment and Decree but not by a petition for amendment of the Judgment and Decree and that the petition may, therefore, be dismissed. The learned District Munsif agreed with such contention of the respondents and dismissed the petition. The present revision is filed questioning such orders of the lower Court.