Full Judgment
S. Sankarasubban, J.
1. This Civil Revision Petition is filed against the order passed in I.A.No. 1557 of 1997 in I.A.No. 1522 of 1988 in O.S.No. 6 of 1978 of the Sub Court, Ottapalam. Plaintiffs are the petitioners. The plaintiffs filed the suit for partition of the plaint schedule property. Plaint Schedule property was described as property in Sy.No. 103/11 with kole measurement of 30 x 22. Four boundaries were also given.
2. First defendant in this case executed Ext.B2 deed by which the property was sold to the third defendant. The contention of the plaintiffs was that the sale deed is valid only on the share of the father and it is invalid regarding the other sharers.
3. A preliminary decree was passed by the trial court allotting 3/15 shares. The said decision was confirmed in appeal. In Second Appeal, this Court was pleased to grant 3/7 share to the plaintiffs. After the preliminary decree was confirmed, the petitioners filed an application for final decree. The commissioner measured 53 cents of property in Sy.No. 103/11. Subsequently, the commissioner measured the property on the basis of the boundaries. For this purpose, the commissioner went again and filed a report stating that if the boundaries are taken, the extent of the property will be 1 acre and 43 cents spread over in Sy.No. 103/4, 103/13 and 103/11. The plaintiffs then filed I.A.No. 1557 of 1997 to amend the schedule to the plaint and preliminary decree. The contention of the plaintiffs was that it was by a mistake that the other Sy.Nos. were not included and hence, a petition was filed under Section 152 and Order 6 Rule 17 of the Code of Civil Procedure. This was objected to by the respondents. It was contended that there was no mistake. Ext.B2 was produced in trial. No amendment was sought to be made then. It was further submitted that since the matter has gone upto the Supreme Court, the decree was merged with the order passed by the Supreme Court and the trial court has no jurisdiction to amend the preliminary decree, The court below dismissed the application on the ground that it cannot be said to be a mistake and further the decree was confirmed in appeal and only that the Appellate Court has got the power to amend the decree.
4. I heard learned Counsel on both sides.
5. The plaint schedule property belonged to the family of the plaintiffs. By partition the property was allotted to the plaintiffs' father. It devolved on him being a member of the joint family. His sons also have right over it. Ext.B2 document was executed without the junction of the other members. In Ext.B2 the property is described as follows:
So, it can be seen from Ext.B2 that the property comprised in three Sy.Numbers. Before filing the suit, Ext.A2 notice was issued. In Ext.A2 notice, it is seen that the properties have been scheduled in three Sy.Numbers, viz., 103/11, 103/11 and 103/13 with regard to 1 acre and 43 cents. But by a mistake, the entire properties were not scheduled in the plaint. The case of the plaintiffs is strong, because going by the boundaries it can be found that it will cover the entire properties under Ext.B2.
6. The defendants have no case that Ext.B2 covers the property not belonging to the plaintiffs' family. According to me, it is by a mistake that the Sy.Nos. were not included. Justice requires that an amendment should be made. Then the question is whether the trial court will be right to amend. Learned Counsel for the respondents relied on a full Bench decision of this Court reported in Kannan v. Narayani 1980 KLT 9, wherein, it was stated that once the Appellate Court passed a decree, the decree of the trial court merges with the Appellate Court and if any petition is made to correct that decree, that should be made in the appellate stage. Learned Counsel for the petitioners relied on the decision reported in Abdhu v. Assainar 1993 (2) KLT 711 wherein a similar question arose. Ramakrishnan, J. held as follows. 'As the final decree proceedings were pending, the record of the case was within the power of the court for effecting corrections as the one found out in the course of the proceedings in this case. Instead of relegating the parties to a fresh suit to rectify the mistake it will only be in the interest of justice to correct the mistake in the final decree proceedings itself in exercise of the inherent power of the court'. The decision in Kannan v. Narayani 1980 KLT 9 was also cited. His Lordship followed the decision of the Supreme Court reported in Samarendra v. Krishna Kumar : [1967]2SCR18 . I agree with the learned Judge that since the records are with the court, the court can make necessary amendments. At the fag end of the argument, learned Counsel for the respondent cited the judgment in Thomas v. Kunju 2005 (4) KLT 28. In that case, it was held that once the matter is taken in appeal, the judgment and decree merge with the appellate decree. It held that the amendment of the decree can be had only by filing a petition in the appellate court. But question that is considered here did not occur in the Full Bench decision. Here is a case where the matter is before the trial court before final decree proceedings. In view of the decision in Abdhu v. Assainar 1993 (2) KLT 711, I am of the view that the trial court itself can exercise the power for amendment. So far as the court is concerned, it will be injustice, if the amendment is not allowed because there is no case that the property conveyed by Ext.B2 did not belong to the plaintiffs.
In the above view of the fact, the order of the court below is set aside and allow I.A.No. 1557 of 1997. Civil Revision Petition is allowed.