PAPU KHAN Vs. FATIMA BABI

JUDGEMENT

(1.) THIS revision has been filed by defendant No. 1 in a partition suit against an order allowing amendment of the final decree.

(2.) THE preliminary decree in a partition suit registered as T. S. No. 29 of 1951 filed by opposite party Nos. 1 to 9 against the present petitioner and others was passed on 29-8-1953 determining the shares of the respective parties. In T. A. No. 160 of 1953, the judgment and decree of the trial Court were confirmed on 25-1-1957. According to the preliminary decree, the share of defendant No. 1 in the Kha schedule land was determined as 62/288. He, however, was to be allotted Rs. / 12/- share in the landlord's interest described in the Ga Schedule which was also included in the Kha Schedule. In the final decree proceeding, a Commissioner was appointed to divide the properties according to the shares determined in the preliminary decree. The Commissioner submitted his report erroneously allotting rs.-/12/- interest in the Kha Schedule land to the defendant No. 1. As no objection was filed, the Commissioner's report was accepted and Court passed the final decree on 2-11-1968 in terms of the allotments made by the Commissioner. Plaintiff No. 1 moved the Court under Sections 151 and 152, Civil P. C. for amendment of the final decree by correcting the share allotted to defendant No. 1 as 65/288 in the Kha Schedule land on the ground that the final decree is not in accordance with the shares allotted in the preliminary decree and Basir Khan (plaintiff No. 4) who was looking after the suit being ill could not file objection to the Commissioner's report which led to the inadvertent error creeping into the final decree. This was registered as Misc. Case No. 506 of 1968. The prayer of plaintiff No. 1 was resisted by defendant No. 1 on the ground that due service of notice had been effected on plaintiff No. 4 before passing of the final decree and that the Court has no jurisdiction to amend the final decree under Section 151 or 152, Civil P. C. The learned Munsif holding that the Court has inherent power to amend or vary the final decree which is not in accordance with the preliminary decree passed an order that the final decree be corrected according to the preliminary decree. It is this order which is under challenge in the present revision.

(3.) LEARNED Counsel for petitioner assails the impugned order on the following grounds: (1) The order of the Court below is unworkable and has the effect of wiping out the entire final decree proceeding, a relief not sought by plaintiff No. 1 and (2) plaintiff No. 1 not having filed an appeal or applied for review of the final decree passed, the Court below had no jurisdiction to pass the impugned order in purported exercise of powers under Sections 151 and 152, Civil P. C. which has the effect of setting aside the final decree. For opposite parties, on the other hand, it is contended that in the present case the final decree which was passed was not in accordance with the preliminary decree, and therefore, the Court below had power in exercise of its inherent jurisdiction to amend it and bring it in accord with the directions in the preliminary decree. Secondly, it is argued that even if it is found that the Court below exceeded its jurisdiction, it will not justify interference in revision when real and substantial justice has been done. Lastly, it is argued that in any view of the matter, it was open to the Court below to treat the application of plaintiff No. 1 as one for review and grant relief on the ground of error apparent on the face of the record. The respective contentions require careful examination.