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S. 152-Amendment of decree-Judgment, decree or order suffering from an error arising from incidental slip or omission----- Can be corrected by Court when it is brought to its notice-Plain tiff bringing suit for partition and seeking relief for same-Trial Court decreeing suit partly-High Court, on appeal, misled and inadvertently omitting to pass decree for partition and instead grant ing decree for joint possession of property for which there was no prayer-Held, decree of High Court liable to amendment in circum stances of case-No limitation or sufficient cause envisaged by S. 152 for such purpose.-[Decree].

A I R 1934 Lab. 561(1) ; A I R 1934 Lah. 29 ; A I R 1924 Oudh 144 ; A I R 1923 Bom. 414 ; A I R 1915 All. 323 ; A I R 1940 Cal. 202 and A I R 1923 All. 349(2) rel.

S. 152-Amendment of decree-Suit For partition anal possession of property-Court inadvertently omitting to pass decree for parti tion and instead granting decree for joint possession-Held, applica tion for amendment of judgment and decree to be allowed in such case in interest of justice rather than to put parties to a position of further litigation.-[Decree].

P L D 1963 S C 265 ref.

Syed T. H. Tariq for Petitioners.

Nazir Ahmed for Respondents.

ABDUL MA&ED MALLICK, J.--Mst. Rabia Bibi, Muhammad Aslam, Mst. Aisha, Mst. Najma and Mst. Fatima, descendants of Haji Akbar Joo, residents of Muzaffarabad city instituted a suit for partition of immovable property comprising a house and shop situate in Muzaffarabad city and rendition of accounts, against Ghulam Ahmed, Habibullah, Abdul Ahad and Mst. Rabia Bibi, descendants of Akbar Joo. Mst. Rabia Bibi, plaintiff was widow and Muhammad Aslam, Ghulam Ahmed, Abdul Ahad, Habib ullah, sons Mst. Aisha, Mst. Najma, Mst. Fatima and daughters of Akbar Joo. The relationship between the parties was admitted. The suit was brought in the Coutt of Additional Sub-Judge Muzaffarabad on 12-10-1961. The trial Court decreed the suit for partition to the extent of shop whereby it was held that plaintiff-petitioners were entitled to the extent of 47 out of 96 shares. Suit relating to house and rendition of accounts was dismissed on 22-2-1973. On appeal before the High Court, the claim of the plaintiffs pertaining to the rendition of accounts was rejected on the basis of special oath administered to Abdul Ahad defendant-respondent on 1-4-1974. However, the appeal of the petitioners-plaintiffs with respect to the house in dispute was accepted and cross appeal filed by Abdul Ahad against the judgment and decree of the Addl. Sub-Judge, Muzaffarabad pertaining to shop was dismissed on 8-5-1974. Accepting the appeal, the D. B. passed decree for joint possession in favour of the plaintiffs appellants on the basis of findings of the trial Court wherein the share of the plaintiffs was determined 47 out of 96. Abdul Ahad respondent filed a review petition in the Hign Court against the judgment and decree dated 8-5-1974 but the same was rejected on 30-9-1975. On application for execution of decree the trial Court delivered possession of the shop to the plaintiff-petitioners but on revision before the High Court the possession of shop was restored in favour of Abdul Ahad on the. ground that in presence of decree for joint possession exclusive possession could not be delivered to the decree-holder. On application for execution of decree, the trial Court disposed of the same on 27-9-1978 on the basis of report of Patwari dated the 21st of July, 1974 and statement of Abdul Ahad judgment-debtor on the ground that decree for joint possession was already executed under law. The petitioners moved an application on 16-12-1978 for appointment of commission under Order XXV1, rule 13, C. P. C. for effecting partition of the suit property. This application was rejected by the lower Court on 28-2-1979 holding thereby that as a decree of the trial Court as well as appellate Court was a decree for joint possession of the suit property, no partition could be effected on the basis of aforesaid decree.

Syed T. H. Tariq, the learned counsel for the petitioners pointed out that the suit of the plaintiffs-petitioners was in the nature of partition and' rendition of accounts. The claim pertaining to rendition of accounts was settled on the basis of special oath given by Abdul Ahad in the High court on 1-4-1974. The trial Court granted decree for partition of the shop and this being so, the learned Additional Sub-Judge could not refuse the execution of decree accordingly. Mr. Nazir Ahmed, the learned counsel for the respondents vehemently opposed the contention of the learned counsel for the petitioners and submitted that decree of the High Court being final and conclusive in the case, was patently a decree for joint possession of the property, the executing Court as such, could not travel beyond the decree and has rightly rejected the plea of the petitioners. In view of the contentions of the learned counsel for the parties, and facts of the case, we have to determine the nature of the decree as well as the point as to on this stage the decree, judgment or both can be amended, to bring the same in conformity to the original suit and relief prayed by plaintiffs-petitioners.

The learned Additional Sub-Judge in his judgment, while deciding issue No. 7 held that plaintiffs-petitioners were entitled to decree for partition relating to the shop. However, in concluding portion of the judgment it was mentioned that the suit shop was in joint possession of the parties and as such the plaintiffs were granted decree for possession to the extent of 41; 96 share, against the defendants and suit for the rest of the property was dismissed. This being so, it was evident from the finding on issue No. 7 that the trial Court was conscious of the nature of the suit and with that background, granted a decree in favour of the plaintiffs. Thus, it can hardly be argued that judgment and decree of the trial Court was other than the one for partition. Averments in paras. 5 and 9 of the plaint expressly state that the plaintiffs' case was a case of parti tion and rendition of accounts. The relief sought by the plaintiffs also related to the partition of the property. Furthermore, the evidence of the parties also supported their claim on the points of partition and rendition of accounts. On this, it is safe to hold that suit of the plaintiffs was one for partition and the trial Court passed decree as such in their favour. The perusal of the judgment of the High Court shows that due to oversight; instead of passing of a decree of partition, the learned Judges. passed a decree for joint possession of the property. Despite that, the decree of the trial Court granted in favour . of the plaintiffs relating to the shop was upheld. The fact that the judgment and decree of the High Court was erroneously passed for joint possession instead of partition, does not change the position of merits of the parties. The plaintiffs-petitioners, happened to be to .posses sion of the house and they were interested, as pointed out earlier, by the learned counsel for the petitioners, only for the partition of the shop.

On the point of decree passed by the High Curt for joint possession Of the property we are of the view that. judgment and decree contrary to the case of the parties can be amended under sections 151 and 152 of the C. P. C. at any time when the error is brought to the notice of the Court. As the decree was passed by the D. B., this Court is quite competent to amend the same. Mr. Nazir Ahmed, the learned counsel for the respondents urged that the decree of the High Court cannot be amended at this stage. He has not cited any case in support of his contention. We have given our considered thought to the objection raised by the learned counsel for the respondents and we are of the opinion that there is no force in the objection. Under section 152, C. P. C., Court was empowered to correct judgment, decree or order at any time when the same comes to its notice, on its own motion or on the application of any of the parties provided the judgment, decree or order was suffering from an arror arising therein from any incidental slip or omission. In the instant case, as pointed out earlier, plaintiffs-petitioners brought a suit for partition and sought relief for the same. Their suit was decreed partly by the trial Court and on appeal, the learned Judges of the High Court except the relief pertaining to rendition of accounts, granted decree in favour of the plaintiffs for the suit property. At there was prayer for possession on partition, the Court was misled and inadvertently omitted to pass decree for partition and instead granted decree for joint possession. There was no prayer for joint possession of the property. On this view of the matter, the decree of the High Court is liable to amendment. No limitation or sufficient cause was envisaged by the provisions of section 152. Therefore, the contention that an application for amendment at this stage without sufficient cause could not be considered, holds no ground and the same is repelled. Our view is supported by A I R 1934 Lah. 561(1), wherein it was held :-

"An error in the judgment and decree which has arisen owing to a clerical error in the plaint can be corrected under sections 151 and 152, where the error is found out at the time execution is sought."

This was a case of partition of property, the particulars of the suit property were given in para 3 of the plaint but by clerical error two shops and open site were not mentioned in the para of relief. On execution, the omission was observed and hence an application was moved. The learned Judge, after considering factual and legal position of the case came to the above observations. In A I R 1934 Lah. 29 the particulars of the suit property were not given in the plaint. After final decree, the suit mortgaged property was sold and sale certificate was issued. It came to the notice of the parties at the time of execution that particulars of the property were omitted in the judgment and decree as the same was not given in the plaint. On application for amendment of the judgment and decree under sections 152 and 151, C. P. C. the learned Judge allowed amendment of judgment, decree and the plaint. The observation is repro duced below.

"Where in a mortgage suit the boundaries of the martgage property are not correctly given by inadvertence, and a sale certificate is issued . after the sale, held after passing of the preliminary and final decrees the preliminary and final decrees .can be amended, and if the mis-description has not affected the sale price, the proclama tion and the sale certificate can also be amended. If on the other hand, the sale price has been affected by such mis-description, tile sale will be set aside end decree-holder will be entitled to bring the properties to a fresh sale."

In A I R 1924 Oudh 144, the learned Judge accepted the appeal but in the judgment inadvertantly instead of mentioning the acceptance of appeal, used the words fails and is dismissed'. On finding the mistake, an application was moved wherein on acceptance of the application and allowing the amendment it was observed as :-

"Where from the discussion- of the case it appeared that the intention of the Judge was to decree the appeal and it was only by a mistake that the words fails and is dismissed' were used, held, that the court is bound to correct a clerical error such as has taken place in the judgment, and the words is decreed' should be substituted in place of fails and is dismissed'. The provisions of sections 151 and 152 are much wider than the corresponding sections of the old Code."

The principle enunciated by the learned Judge was that it was not alone the use of particular words in a judgment or decree rather it was the substance of discussion and opinion, formed on a matter of issue, which formed basis of the judgment and decree. In A I R 1923 Born. 414, a suit was brought against one Rao Narayan Deshmukh who died during the pendency of the suit, his son was impleaded as legal representative. While passing a decree against legal representative of deceased defendant, the Court held him liable personally instead of holding him responsible as legal representative. The mistake was rectified by allowing amendment of judgment and decree. It was observed :-

"To pass a decree against the legal representative of the deceased defendant so as to make him personally liable is not competent to a Court to direct. When the attention of the Court is drawn to the error, even although it might be at a rather late stage of the proceedings, there is no reason why on that account the mistake should not be remedied."

A I R 1915 All. 323 also supports the above-noted view. In this case, the learned Judge, instead of passing a decree in favour of plaintiffs, dismissed the suit. The amendment of the judgment and decree was allowed under section 152, C. P. C. It was observed as :-

"A Munsif, by a clerical error, recorded in his final order an order dismissing the suit instead of decreeing it. The decree was prepared in accordance with the final order. Held, that the Munsif had jurisdiction under section 152, C. P. C. to subsequently correct the error."

A I R 1940 Cal. 202 and A I R 1923 All. 349(2) also support the view on the point of amendment of judgment and decree. The point under discussion is to be examined from another angle as well. In case, the amendment of judgment and decree is not allowed, it shall deemed as if there was no suit for partition of the property. Hence the plaintiff petitioners shall have to bring a fresh suit for partition of the property. This would not only be a cause of multiplicity of proceedings but also deprive the owner from the benefits of the property till the final adjudication, which may take - long way to come to an end. Therefore, it is in the interests of justice to allow the application for amendment of judgment and decree and rather than to put the parties to a position of further litigation. There was no bar to a second suit for partition. This view is supported by P L D 1963 S C 265 wherein, in a suit for redemption and possession the relief of possession was omitted in decree despite the fact that the judgment contained both the reliefs for redemption and possession. The decree-holders, instead of taking steps for amendment of the decree in the Court filed fresh suit for possession. Defendant judgment-debtor pointed out that the second suit for possession was prohibited under section 11 of the C. P. C. It was observed as :-

"Decree-Not agreeing with judgment-(Suit for redemption and posses sion-Both reliefs granted by judgment but grant of relief of possession omitted from being incorporated in decree}-Subsequent suit by decree-holder for ejectment of judgment-debtor not barred-Decree holder not bound to apply for amendment of decree under sec tion 152, C. P. C. (V of 1908).-Both remedies concurrent."

Mr. Justice S. A. Rahman, J, who wrote the judgment observed that in case there was an omission of relief in decree and the same was not corresponding to the judgment, the decree-holder could 'either invoke section 152, C. .P. C. for amendment of the decree or bring another suit for the relief. According to the learned Judge, both remedies were concurrent.

In the present case, an application was moved by the petitioners for the appointment of the commission in order to carry out the partition of the property. The prayer was refused. That there was no decree for partition, the appointment of commission was not. required. We have come to the conclusion that decree of the trial Court was a decree for partition of the shop and we have also allowed amendment of the judgment and decree of the High Court holding thereby that the plaintiffs are entitled to decree for partition of both, the shop and the house in dispute. This being so, the executing Court shall have no hesitation to consider the question of appointment of commission in order to execute the decree.

In view of the above observations, we accept the revision petition, set aside the order of the executing Court, and remand the case to the lower Court for proceeding to execute the decree accordingly. In view of the peculiar circumstances of the case, the parties shall bear their own costs.

S. Q. Petition accepted.

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