H. SOMANA GOUD Vs. M. THIMAYYA SETTY

JUDGEMENT

(1.) The decree-holder in O.S. 137/61 on the file of the District Munsif's court, Adoni, is the petitioner herein. He filed the said suit on the foot of a mortgage to recover the amounts due there under against the respondent and another person. The suit was decreed in 1963 and confirmed in Appeal in 1965. It appears that the mortgage-deed covered three items of properties. But I am concerned only with Item No. 2 therein. Item No. 2 mentioned in the deed was Survey No. 925-A comprising Ac.2-26 cents within specified boundaries. In the plaint the said Survey No. was wrongly mentioned as S.No. 295. After the final decree was passed, the petitioner applied to the District Munsif's court, for correction of the error with regard to the survey Number of item (2) in the plaint schedule. The learned District Munsif, rejected the application on the ground that the decree having been confirmed by the appellate Court, the decree holder should move the appellate Court. This matter was taken up in revision to the High Court and the High Court confirmed the same. The petitioner thereafter moved the appellate Court, i.e. the Sub Court, Adoni, for amendment of the said property in the plaint schedule. The lower appellate Court rejected that application on the ground that it was functus officio and that such an application could not be entertained after final decree was passed, and that the Court had no seisin of the matter. It is this order of the learned Judge that is assailed in this revision petition.

(2.) Though the petition has been filed under Order 6 rule 17 CPC. I think the proper section applicable to the case is Section 152 or 153 CPC. The fact that a wrong provision of law is mentioned in the petition, is not a sufficient ground to refuse relief, if the petitioner is entitled to relief under some other provision of law. The error sought to be rectified is purely a clerical error with regard to the mentioning of the survey number of the property. It is not disputed that survey No. 925-A is item No. 2 of the mortgage-deed. If so the same number should have been mentioned in the plaint. This appears to be purely a mistake which had crept in by oversight or inadvertence. The subject matter of the suit included Survey No. 925-A, and in fact the other matters relating to the extent and the boundaries are said to be correctly given in the plaint schedule. If so, I do not find any difficulty in correcting the error. That the Lower Court has jurisdiction to entertain an application to correct an error of this kind is laid down in Katamraju v. Paripurnandam, (1948) 61 Law Weekly, P. 622 . The facts are almost similar to the facts of the present case. Similar error occurred with regard to the survey number. His Lordship Rajamannar, officiating Chief Justice as he then was held.

(3.) Even the case cited in the lower court in Somi Reddy Burrayya v. Somi Reddy Atchayyamma, (1958) 2 A.W.R. P. 208 does not lay down anything to the contrary. Further this case mainly dealt with an amendment under Order 6, Rule 17 CPC. But the observations at page 210, viz.,