* HIGH COURT OF DELHI : NEW DELHI
+ IA No.665/2010 in CS (OS) No.593/2006
% Judgment decided on : 4th June, 2010
Nirmal Kaur ......Plaintiff
Through: Mr. Raman Kapur, Adv. with Mr. F.
Hasan, Adv.
Versus
Surjit Kaur & Ors. .....Defendants
Through: Mr. H.L. Tikku, Sr. Adv. with
Mr. Rajesh Goyal, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. The present application has been filed by the plaintiff under
Section 151 read with Section 152 of the Code of Civil Procedure, 1908
with the prayer that direction be issued in terms of the judgment/order
dated 23.12.2009 directing Sh. Y.D. Nagar, Local Commissioner to
divide the suit property into two equal halves as per his report dated
29.10.2007 and as per plan annexed thereto and allot one share to the
plaintiff and one share to the defendants either by agreement or by draw
of lots.
CS (OS) No.593/2006 Page 1 of 7
2. The present suit for partition and possession was filed for
property bearing No. C-18, Mansarover Garden, New Delhi. As per the
admitted fact in the pleadings the plaintiff on the one hand and
defendants on the other hand owned 50% share each of the property. A
preliminary decree on this admission was passed on 29.09.2008.
3. The defendants filed RFA(OS) 01/2009 challenging the
preliminary decree which was dismissed by a Division Bench of this
Court vide order dated 07.09.2009. Special Leave Petition in this matter
being SLP (Civil) No. 2140/2009 was also dismissed vide order dated
09.02.2009. Before passing the preliminary decree, the court appointed
Sh. Y.D. Nagar as Local Commissioner to suggest the division of the
property by metes and bounds. The Local Commissioner who is also an
Engineer submitted his report dated 29.10.2007 in which he opined that
the suit property measuring 611 Square Yards could be divided into two
equal halves measuring 305.5 Square Yards each by metes and bounds
from the front to the back horizontally from the centre, each party
getting 25 feet in the front and 14 feet at the rear with the complete
length of 141 feet. Accepting the report of the Local Commissioner, the
court passed the final decree on 23.12.2009 declaring that the plaintiff
and the defendants are entitled to 50% share each in the suit property
and the same be partitioned by metes and bounds as suggested by Sh.
Y.D. Nagar, Local Commissioner.
4. Paragraphs 21 and 23 of the judgment dated 23.12.2009 read
as under:
CS (OS) No.593/2006 Page 2 of 7
“21. Accordingly, after having gone
through the entire gamut of the matter,
pleadings and documents, I accept the report
of the Local Commissioner. The suit property
measuring 611 Sq. yards be divided by metes
and bounds into two equal halves of 305.5 sq.
yards each from the front to the back
horizontally in the centre, each party getting
25 feet in the front and 14 feet at the rear with
length of 141 feet.
22. ………………
23. Accordingly, the final decree is
passed declaring that the plaintiff and all the
defendants jointly are entitled to 50% share in
the suit property bearing No. C-18,
Mansarower Garden, New Delhi and the same
shall be partitioned by metes and bounds as
suggested by the Local Commissioner Mr.
Y.D.Nagar and decree be drawn accordingly.
All pending applications be disposed off. No
costs.”
5. The application of the plaintiff has been opposed by the
defendants mainly on the ground that such an application in a
decided/disposed of matter is not maintainable. It could have been filed
only during the pendency of the proceedings, therefore, the relief sought
by the plaintiff cannot be granted as the proceedings have been
terminated by passing of the final decree.
6. Mr. Tiku, learned Senior counsel for the defendants has
referred Section 2(1) and Section 2(2) of the Code of Civil Procedure in
support of his submission. He has also relied upon the judgment of the
Apex Court in the case of Maddineni Koteswara Rao Vs. Maddineni
Bhaskara Rao & Anr. reported in 2009 (IV) SLT 236, wherein in
paragraph 10 it has been held that a suit for partition stands disposed of
only with the passing of the final decree.
CS (OS) No.593/2006 Page 3 of 7
7. The next submission of the learned counsel for the
defendants is that the plaintiff, without paying the stamp duty, to
execute the decree by filing the present application under Section 151
and 152 of the Code of Civil Procedure which is not maintainable after
the passing of the final decree. In the present circumstances this court
has no power to invoke its inherent jurisdiction to allow the prayer made
in the application.
8. It is argued that since this court has already passed an order
for drawing of the final decree on stamp paper, if any order is passed as
prayed by the plaintiff in his application the same would be without
jurisdiction. Mr. Tikku referred to the settled law reported in Nazir
Ahmad Vs. King Emperor reported in AIR 1936 Privy Council 253 it
has been held :
“……..The rule which applies is a different
and not less well recognized rule, namely, that
where a power is given to do a certain thing in
a certain way the things must be done in that
way or not at all. Other methods of
performance are necessarily forbidden.”
9. Learned counsel for the defendants has also referred the case
of Probhat Kumar Mukherjee Vs. Santa Ranjan Banerjee reported in
AIR 1957 Calcutta 375, wherein it has been held as under:
“……..It is true that according to that decision
a compromise of the nature we are dealing
with not only declares the rights of several
parties interested in the property but also allots
each party. In my opinion, after such a
compromise the parties there under would be
precluded from questioning the allotments as
amongst themselves, but no legal title wouldCS (OS) No.593/2006 Page 4 of 7
accrue in favour of any party to the allotments
made unless and until the final decree is
formally engrossed on requisite stamped
paper. The following sentence occurring
towards the end of the above report will bear
out the correctness of this proposition.
“The only effect of engrossment of
the decree on stamped paper would be that it
will be rendered legally effective which it is
not until so engrossed.”
In my judgment the legal title to premises No.
14, Iswar Ganguli Street has not yet accrued to
the mother under the allotment made in the
compromise decree because no final decree
has yet been engrossed on necessary stamped
paper”.
10. On the other hand learned counsel for the plaintiff has argued
that the present application is very much maintainable in view of the
judgment and decree passed by this court. He has referred paragraph 21
and 23 of the judgment in this regard.
11. Learned counsel for the plaintiff has referred the judgment of
the Apex Court titled as Jayalakshmi Coelho Vs. Oswald Joseph
Coelho reported in (2001) 4 SCC 181 wherein it has been held that :
“In terms of S.152 CPC any error
occurred in the decree on account of
arithmetical or clerical error or accidental slip
may be rectified by the Court. As a matter of
fact such inherent powers would generally be
available to all Courts and authorities
irrespective of the fact whether the provisions
contained under S. 152 CPC may or may not
strictly apply to any particular proceeding. In
a matter where it is clear that something which
the Court intended to do but the same was
accidentally slipped or any mistake creeps in
due to clerical or arithmetical mistake it would
only advance the ends of justice to enable the
Court to rectify such mistake. But before
exercise of such power the Court must be
legally satisfied and arrive at a valid findingCS (OS) No.593/2006 Page 5 of 7
that the order or the decree contains or omits
something which was intended to be otherwise
that is to say while passing the decree the
Court must have in its mind that the order or
the decree should be passed in a particular
manner but that intention is not translated into
the decree or order due to clerical, arithmetical
error or accidental slip. The facts and
circumstances may provide clue to the facts as
to what was intended by the Court but
unintentionally the same does mention in the
order or the judgment or something which was
intended to be there stands added to it. The
power of rectification of clerical, arithmetical
errors or accidental slip does not empower the
Court to have a second thought over the matter
and to find that a better order or decree could
or should be passed. It is to be confined to
something initially intended but left out or
added against such intention.”
12. In support of his submissions, he has relied on another
judgment titled as Pratibha Singh & Anr. Vs. Shanti Devi Prasad &
Anr. on the same point.
13. After having gone through the submissions made by the
learned counsel for the parties as well as the decision referred by them,
this court is of the view that no correction/amendment/modification is
required in the final decree and judgment passed on 23 rd December,
2009 by this court. There is no clerical or arithmetical mistake in the
judgment and decree. The judgment and decree is very specific as is
clear in view of the finding given by this Court in paragraphs 21 and 23
of the judgment.
14. As regards the prayer of direction to Mr. Y.D. Nagar in order
to enforce the decree, I agree with the submission of the learned senior
counsel for the defendants that the said prayer can be granted by the
CS (OS) No.593/2006 Page 6 of 7
executing court after filing of the execution petition under Order XXI of
Code of Civil Procedure, 1908.
15. Without going into the submissions raised by the parties on
merit, this application is disposed of with the observation that the court
cannot now exercise its jurisdiction to amend the decree in view of the
prayer made in the application.
16. The application is disposed of accordingly.
MANMOHAN SINGH, J.
JUNE 4, 2010
dp
CS (OS) No.593/2006 Page 7 of 7