MADHU SETHI Vs. BISHNU SETHI

JUDGEMENT

(1.) This is a plaintiff's revision directed against rejection of his application filed under Section 152 read with Section 151 of the Civil P. C. for correction of the judgment and decree.

(2.) The original petitioner instituted Title Suit No. 70/85 of 1971-73 in the Court of the Subordinate Judge, Sonepur for declaration of title and that he was entitled to possess the suit property. During the pendency of the suit, a proceeding under Section 145 of the Criminal P. C. terminated in favour of the original opposite party declaring the possession of the opposite party on the day of the preliminary decree. So, the original petitioner was obliged to seek recovery of possession by way of amendment of the plaint. His prayer for amendment was allowed by order dated 2-7-1974 and the original petitioner was directed to pay additional court fee on the relief of recovery of possession and he paid the additional court-fee. On 27-2-1975 the suit was decreed.

(3.) It was discovered later on that though leave had been granted to amend the plaint, the petitioner did not carry out the amendment and the decree that was passed granted the reliefs as per the prayer in the original plaint, which did not contain the relief of recovery of possession (rightly so as the amendment had not been carried out). An application was filed on 18-6-1975 under Section 152, Civil P. C. for correction of the judgment and the decree by inserting the relief of "recovery of possession after evicting the defendant". It was submitted that the amendment was not carried out due to clerical mistake. The learned Subordinate Judge rejected the application negativing the petitioner's contention by order dated 9-3-1976. This order was not questioned before the superior court and was allowed to become final. A fresh application was filed on 10-5-1976 under Section 151, Civil P. C. for correction of the judgment and the decree which was registered as M. J, C. No. 20 of 1976. The said application was dismissed for default on 21-3-1977, As application for restoration registered as M. J. C. No. 8 of 1977 was rejected on 23-11-1977. On 19-7-l978, the petitioner again filed an application under Section 152, Civil P. C. for correction of the judgment and the decree. By order dated 19-9-1979, the learned Subordinate Judge rejected the application holding that in view of the rejection of an earlier application for identical relief by order dated 9-3-1976, the present application for the selfsame relief was not maintainable especially when the order dated 9-3-1976 had been allowed to stand.