Judgment:
Shrihari P. Davare, J.
1. This Civil Revision Application arises out of the order passed below Exh. 1 in M.A. No. 82/2003, by learned District Judge, Latur on 31.3.2004 and the petitioner herein prayed that the said impugned order be quashed and set aside.
2. The factual matrix in brief are that, the respondent Nos. 1 and 2 i.e. original plaintiffs had filed Special Civil Suit No. 6/1982 before Civil Judge, Senior Division, Latur for specific performance against the present respondents as defendants. However, the said suit was decided on 1.9.1989 and the specific performance and the another relief of refund of consideration were refused therein. Aggrieved by the said judgment and decree, the respondent Nos. 1 and 2 i.e. original plaintiffs preferred Regular Civil Appeal No. 22/1990 in District Court, Latur. During the pendency of the suit, defendant No. 1 expired and his heirs i.e. defendant No. 1b to 1f were brought on record. Subsequently, the said appeal was allowed by judgment and order dated 16.2.1999 and the relief of specific performance was granted to the plaintiffs. The operative part of the order reads as follows:
The suit is decreed. The defendant No. 1b to 1e are directed to receive the amount of Rs. 25,000/from the plaintiffs and thereafter defendant Nos. 1b to 1e and defendant Nos. 2 to 6 shall execute a registered sale deed in respect of the suit land, in favour of the plaintiffs, within a period of two months. Otherwise, plaintiffs shall be entitled to get specific performance through the court of law. The plaintiffs to recover cost of the suit from the defendant Nos. 1b to 1e and defendant Nos. 2 to 6.
3. Being aggrieved by the said judgment and order, Second Appeal No. 185/1999 was preferred by the original defendants before this Court, but the said Second Appeal was also dismissed on 11.3.2003.
4. Execution proceeding was filed in pursuance of the judgment, order and decree passed by the District Court, Latur by the plaintiffs and it is submitted that an error was detected in the operative part of the judgment and decree passed by the District Court, Latur while filing the said execution proceeding. It was revealed that instead of mentioning defendant Nos. '1b to 1f', it was mentioned in the operative part as 'defendant Nos. 1b to 1e' inadvertently, due to clerical mistake and the said decree should have been against defendant 'Nos.1b to 1f' and defendant 'Nos.2 to 6 and not against defendant Nos. 1b to 1e and defendant Nos. 2 to 6'.
5. Hence, the plaintiffs i.e. respondent Nos. 1 and 2 herein preferred M.C.A. No. 82/2003 before the District Court, Latur under Sections 152 and 151 of the Code of Civil Procedure, contending that the omission of the name of 'respondent No. 1f Shobha w/o Ashokrao Deshmukh' in the operative part of the decree is by way of accident of omission and, therefore, prayed that her name be included in the operative part of the decree and judgment paragraph No. 3b, d & e. It is also submitted that the said error in the judgment is by way of accidental slip or omission and it was prayed that same be corrected by exercising power under Sections 152 and 151 of the Code of Civil Procedure.
6. The defendants/ respondents opposed the said application by filing their say and raised various contentions, contending that the decree passed by District Court, Latur was merged in the judgment passed by this Court in Second Appeal No. 185/1999, dated 11.3.2003 and also contending that there is bar of provisions of law of limitation to the said application and District Court, Latur has no jurisdiction to entertain and try the said application.
7. Considering the rival submissions, the learned District Judge, Latur passed an order on the said M.C.A. No. 82/2003 on 31.5.2004 and thereby allowed the said application and directed that judgment and decree passed in Regular Civil Appeal No. 22/1990 be corrected by substituting 'defendant Nos. 1b to 1f' in place of 'defendant Nos. 1b to 1e' in paragraph No. 3(b), (c), (d) and 3 of judgment and also the operative part of the judgment and in decree, and judgment and decree be corrected accordingly.
8. Being aggrieved by the said order, the petitioner (original defendant No. 1f has preferred the present Civil Revision Application, requesting to quash and set aside the said impugned order dated 31.3.2004.
9. The learned Counsel appearing for the petitioner vehemently urged that the application preferred by the respondent Nos. 1 and 2 i.e. original plaintiffs before the District Court, Latur i.e. M.C.A. No. 82/2003 was not maintainable since the decree passed by District Court, Latur was merged in the Second Appeal No. 185/1999 filed before this Court, which was ultimately dismissed on 11.3.2003 and in view of the said doctrine of merger, the said application should have been dismissed by the District Court, Latur. It is further contended by the learned Counsel for the petitioner that the application preferred by the plaintiffs before the district Court, Latur under Sections 152 and 151 of the Code of Civil Procedure was not maintainable since crossobjections were not filed by the plaintiffs in Second Appeal. Moreover, the plaintiffs could have preferred review, but same also was not preferred and hence, in that scenario, M.C.A. No. 82/2003 preferred by the plaintiffs before the District Court, Latur was not maintainable and the forum chosen therefor was also incorrect. The learned Counsel for the petitioner also canvassed that there is bar of provisions of law of limitation and contention of the plaintiffs that they got knowledge of the mistake in the decree at the time of filing of the eviction proceeding bears no substance since they were party in the High Court proceeding i.e. Second Appeal No. 185/1999. Accordingly, the learned Counsel for the petitioner submitted that the impugned order passed by learned District Judge, Latur on 31.3.2004 is bad in law and same be quashed and set aside. To substantiate the contentions of the petitioner, learned Counsel for the petitioner relied upon the case reported at : AIR1980Ker76 (Kannan and Ors. v. Narayani and Ors.), wherein it was observed that:
Section 153A of the Code of Civil Procedure has been incorporated in the Code by Code of Civil Procedure (Amendment) Act, 1976. That Section reads thus:153A. A power to amend decree or order where appeal is summarily dismissed. Where an appellate Court dismisses an appeal under Rule 11 of Order XLI, the power of the Court to amend, under Section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.
When the Statute makes specific provision that when the dismissal of an appeal is in limine under Order XLI, Rule 11 the Court of first instance will have the power to correct the decree or order, it logically follows that this would not be the case where the appeal has been dismissed not in limine but on merits.... The Courts in India were more or less uniform on the question of merger of decree in the appellant decree when the appeal is disposed of on the merits, of course barring exceptions such as the view expressed by this Court in 1969 Ker I.T. 710. Apparently, the legislature did not think it necessary to make any provision in regard to the amendment in cases where appeals are disposed of not under Order XLI, Rule 11 but on the merits. Section 153A eloquently implies that in cases of disposal of appeals otherwise than under Order XLI, Rule 11 the Court of first instance would not have the power to amend its decree or order.
In these circumstances, we hold that except in cases to which Section 153A of the Code of Civil Procedure applies, where there has been an appeal, the decree under appeal merges in the decree in appeal and it is only the appellate Court that would correct or amend the decree under Section 152 of the Code of Civil Procedure. In this view the order of the Court below is correct and calls for no interference. The Revision Petition is dismissed. Parties are directed to suffer costs. '
Relying upon the said judgment, the learned Counsel for petitioner submitted that the District Judge, Latur had no authority and power to allow the said application vide order dated 31.3.2004 since the decree passed in Regular Civil Appeal No. 22/1990 was merged in the decree passed in Second Appeal No. 185/1999 and, therefore, only this Court had jurisdiction to correct or amend the said decree under Section 152 of the Code of Civil Procedure and not the District Judge, Latur.
10. As against that, the learned Counsel for the respondent Nos. 1 and 2 (original plaintiffs) countered the arguments canvassed by the learned Counsel for the petitioner and submitted that answer to the proposition put forth by the learned Counsel for the petitioner that the decree passed by the District Court, Latur merged in the decree passed in Second Appeal No. 185/1999 by this Court, lies in the same judgment itself which is cited by the learned Counsel for the petitioner reported in : AIR1980Ker76 (Kannan and Ors. v. Narayani and Ors.) (supra) since although decree of District Court, Latur was merged in the decree of Second Appeal No. 185/1999, dated 11.3.2003, the said Second Appeal was dismissed at the admission stage itself as there was no substantial question of law and the said Second Appeal was preferred by defendant Nos. 2 to 6 and not by the legal representatives of defendant No. 1 and, therefore, it is submitted that, it is specifically observed in the last paragraph of the said judgment that, 'In the circumstances, we hold that except in cases to which Section 153A of the Code of Civil Procedure applies, where there has been an appeal, the decree under appeal merges in the decree in appeal and it is only the appellate court that could correct or amend the decree under Section 152 of the Code of Civil Procedure.' Accordingly, it is submitted that the present case comes under exceptional circumstances as mentioned ion the aforesaid observations.
11. It is further submitted that Section 152 of the Code of Civil Procedure is a specific remedy for correction of the decree and, therefore, there was no necessity to file any crossobjection or to file review, as contended by learned Counsel for the petitioner. It is further submitted that such application under Section 152 of the Code of Civil Procedure can be preferred at any time and hence, there is no bar of provisions of law of limitation. It is also submitted that, there is no bar of provisions of law of limitation as contended by learned Counsel for the petitioner herein since the plaintiffs got the knowledge of the clerical mistake in the decree passed by District Judge, Latur at the time of filing of execution proceedings and the application M.A. No. 82/2003 was preferred before the District Court, Latur for rectification of decree immediately after the said knowledge.
12. To substantiate the contention of the respondent Nos. 1 and 2, learned Counsel for the respondent Nos. 1 and 2 relied upon the case reported at 2009 (3) ALL MR 956 (Tilak Raj v. Baikunthi Devi (D) by L.Rs.), wherein it was held in paragraph Nos. 14, 15 and 17 as under:
14. The aforesaid mistake was of clerical nature which could have been corrected by applying the provisions of Section 152 of the C.P.C. Counsel appearing for the respondents also during his submissions fairly accepted the aforesaid position. The remedy that was available to the appellant was to file an application seeking for amendment of the decree by way of correcting the clerical mistake in respect of Khasra Number. Since the mistake was clerical in nature and the appellant being not responsible for the said clerical mistake which had occurred due to wrong recording of Khasra Number in Khasra Girdawari, we find no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising the powers under Section 152 of the C.P.C. In K. Rajamouli v. A.V.K.N. Swamy : [2001]3SCR473 , this Court held as follows :
Section 152 provides that a clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.15. Since the Court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the Court for subserving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the Court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the courts should not bind itself by the shackles of technicalities.
16. ...
17. We feel that if we direct the appellant to seek remedy under the provisions of Section 152 of the C.P.C., it will only delay and prolong the litigation between the parties. In order to cut short the litigation and to save precious time of the Court as also to give quietus to the entire dispute, we direct in exercise of the powers under Section 152 of the C.P.C. that the decree be corrected by giving the correct Khasra No. 26R/52 in place of Khasra Number 25R/52. Having decided so, in the aforesaid manner, we are not required to go into the arguments advanced before us and adjudicate as to whether Order 2, Rule 2, C.P.C. would be applicable in the facts and circumstances of the present case and whether or not the subsequent suit was barred.
13. Having the comprehensive view of the matter and considering the rival submissions as well as applying the parameters of the aforesaid rulings cited by both the parties, it is amply clear that there is no substance in the argument canvassed by learned Counsel for the petitioner that the application M.A. No. 82/2003 was not maintainable before the District Judge, Latur in view of the merger of the decree passed by the said Court in the decree passed by this Court in Second Appeal No. 185/1999, dated 11.3.2003 as the Second Appeal No. 185/1999 was dismissed by this Court at the admission stage itself on 11.3.2003 since there was no substantial question of law and, therefore, the District Judge, Latur was the proper forum to prefer the application for rectification of the decree passed by it and accordingly, the plaintiffs rightly preferred M.A. No. 82/2003 before the District Judge, Latur for rectification of decree under Sections 152 and 151 of the Code of Civil Procedure for the correction of decree. In view of the said position, there was no necessity to file any crossobjection or to file review as contended by the learned Counsel for the petitioner and the plaintiffs have chosen the appropriate remedy under Sections 152 and 151 of the Code of Civil Procedure and the said action of the plaintiffs cannot be faulted with. Moreover, since District Judge, Latur had passed the decree in question, he had every authority and jurisdiction to entertain the application for rectification of decree.
14. As regards the objection in respect of limitation, the plaintiffs have contended that they got the knowledge of the mistake in the decree of the District Court, Latur at the time of filing of execution proceedings and thereafter they immediately preferred M.A. No. 82/2003 before District Judge, Latur for correction of the decree and there is nothing on record to disbelieve the same. Besides, the language of the Section 152 of the Code of Civil Procedure itself is selfexplanatory which states that,
152. Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either on its own motion or on the application of any of the parties.
Hence, in view of the very text of the Section 152 of the Code of Civil Procedure, it is amply clear that such application for rectification of clerical or arithmetical mistakes in judgments, decrees or orders can be preferred at any time and same can be corrected by the Court accordingly.
15. Hence, in view of the said position, there is no substance in the objections raised by learned Counsel for the petitioner in respect of provisions of law of limitation.
16. Coming to the impugned order, the learned District Judge, Latur has considered the rival contentions raised by both the parties as well as considered the various judgments cited before him by them and thereafter rightly observed that though the appeal was preferred to the higher Court, an application for correction of decree under Sections 152 and 151 of the Code of Civil Procedure can be entertained before the Court, by which the decree was passed. Admittedly, in the instant case, decree was passed by the District Judge, Latur in Regular Civil Appeal No. 22/1990 and since the Second Appeal preferred against it was dismissed at the admission stage, it is the District Judge, Latur who can entertain the application for correction of decree which is the decree for the purpose of consideration of execution.
17. However, since due to oversight and inadvertence the name of defendant No. 1f namely Shobha was not recorded as one of the defendants in the judgment and decree which was passed and since there is no dispute that the defendant No. 1f namely Shobha is heir of deceased defendant No. 1 Kishanrao along with other heirs i.e. defendant Nos. 1a to 1e, the name of defendant No. 1f is required to be incorporated in the judgment and its relevant paragraphs and decree in Regular Civil Appeal No. 22/1990 invoking the provisions of Sections 152 and 151 of the Code of Civil Procedure as rightly directed in the impugned order, and hence, same cannot not be faulted with.
18. Accordingly, considering the impugned order passed in M.A. No. 82/2003 by learned District Judge, Latur on 31.3.2004, it is amply clear that there is no illegality and perversity therein and, therefore, no interference therein is warranted in the revisional jurisdiction of this Court.
19. In the circumstances, present Civil Revision Application bears no substance and same is devoid of any merits and resultantly, the Civil Revision Application stands dismissed. Rule stands discharged accordingly.
20. In the facts and circumstances, there shall be no order as to costs.