ORDER
M. Karpagavinayagam, J.
1. Sagayaraj, Jesuraj. and Regina, the petitioners herein, challenging the fair order and decretal order dated 7.6.1995 passed in I.A. No. 442 of 1993 in O.S. No. 98 of 1982 on the file of the District Munsif Court, Mannargudi, have filed this civil revision petition.
2. The facts leading to the filing of the present petition are as follows:
(a) Therasa, the respondent herein, filed a suit in O.S. No. 98 of 1982 against the petitioners for specific performance of the agreement of sale executed by the defendants 1 and 2 in the suit in her favour on 4.2.1981. The trial court passed a decree on 17.2.1984 directing the defendants 1 and 2 to execute the sale deed in favour of the respondent in respect of the entire suit property, failing which the sale deed shall be executed by the court on behalf of the defendants.
(b) Thereafter, the plaintiff filed an execution petition in E.P. No. 412 of 1991. In pursuance of the execution petition, the sale deed was also executed by the court on 26.8.1992 on behalf of the defendants 1 and 2, since the first and second defendant had failed to execute the sale deed. Thereafter, the plaintiff filed E.P. No. 86 of 1993 against the petitioners for delivery of suit property. Jesuraj, the second petitioner contested the said petition stating that he is in possession of the suit property and that the decree would not bind him, as the decree did not given any directing against him. Therefore, on appreciation of the contentions of both the parties, the trial court closed the execution petition by giving the liberty to the plaintiff, the respondent herein to file an application to amend the decree for inclusion of Jesuraj, the second petitioner herein.
(c) On the basis of the said observation, the plaintiff filed an application in I.A. No. 442 of 1993 for amendment of the decree for inclusion of the second petitioner in the decree. This prayer was objected to by the second petitioner stating that the said amendment would not be permissible under law, as it would change the character of the suit. However, the trial court though rejected the prayer for second and third amendment, allowed the prayer by directing Sagayaraj and Jesuraj (first petitioner and third petitioner in I.A. No. 442 of 1993) to execute the sale deed in favour of the plaintiff in respect of the plaint mentioned properties. This impugned order is challenged in this civil revision petition.
3. Mr. Thirugnanam, the counsel for the petitioners would make the following submission:
The amendment sought for by the plaintiff is beyond the scope of the suit itself and the same would amount to a new cause of action, thereby changing the original character of the suit. When the prayer itself in the plaint is for the direction to the first and second defendant to execute the sale deed in favour of the plaintiff, the amendment sought for, for a direction to the third defendant, the second petitioner herein, cannot be made, as it is neither a clerical nor an arithmetic mistake, which alone could be corrected under Sections 151 and 152, C.P.C. Moreover, the amendment sought for in the decree alone without seeking for the amendment in the judgment also is without jurisdiction.
4. On the other hand, Mr. V.K. Vijayaraghavan, the counsel for the respondent would submit the following:
All the petitioners are the parties in the main suit and a valid decree has been passed and as such, it has become final and is binding on them. Moreover, the petitioners 1 and 3 are the owners of the property and the trial court has granted a decree for specific performance against them to the knowledge of the second petitioner. Though the second petitioner claims to be the subsequent purchaser, he is not a bona fide purchaser for valued. The petitioners colluded, with each other to defeat the interest of the respondent and had created a document of sale in favour of the second petitioner. Since the decree was passed to his knowledge, it is not open to the second petitioner to object to the decree. Though the petitioners 1 and 3 were absent in the lower court proceedings throughout, now all the petitioners have jointly filed this single revision, which would show, as stated above, that all of them colluded with each other to defeat the interest of the plaintiff/respondent and it is only intended to delay the execution of a valid decree duly granted. Even assuming for the argument sake that the amendment for the inclusion of the second petitioner in the decree is not permissible, the decree originally obtained by the respondent was executable as against all, since the suit filed against all the petitioners.
5. For substantiating their respective pleas, counsel for both the parties have cited some authorities.
6. Mr. Thirugnananm counsel for the petitioners cited the decisions in Pethaperumal v. Syndicate Bank and Kunjalu v. Jose , wherein it is held that the civil revision petition itself is not maintainable, since the petitioner has filed only on application to amend the decree without filing an application to amend the judgment and that therefore, the present petition to amend the decree is not maintainable, since the decree can only be drafted in accordance with the judgment.
7. Mr. Vijayaraghavan, the counsel for the respondent would contend that the above objection was too technical, which would not affect the well-reasoned order, especially when that objection is being raised by the petitioners with an ulterior motive to drag on the proceedings. He would cite the following decisions:
(1) Manika Udayar and two Ors. v. D.A. Mustafa and Anr. (1997) 2 L.W. 125;
(2) Chennichi alias Parikkal v. Srinivasan Chettiar (1970) 1 M.L.J. 234.
8. In Manika Udayar’s case (1997) 2 L.W. 125, when a similar objection was raised, this Court, while rejecting the said, objection, would observed as follows:
The petitioners had not made out any case as to how their rights had been affected by the amendment ordered by the lower court in I.A. No. 1842 of 1993. It may be pertinent to. note further that the petitioners have not raised any objection with regard to the description of the property as given in the schedule to the plaint. The respondents having obtained a decree, cannot be asked to have a paper decree alone, without getting the real usufructs of the same. The respondents have deposited the entire sale consideration pursuant to the decree and as such in the interest of justice, I am of the opinion that the order of the lower court can be sustained, as there is no error in the approach made by the lower court.
Even though the order of the lower court in I.A. No. 1842 of 1993 may be without jurisdiction, still the same need not be set aside, as the intention of the order is to render substantial justice to the parties. The lower court intended to give the benefit of the decree to the decree holder. I am fortified in my view by drawing support in a case reported in Noorudin v. Raimath 1987 T.L.N.J. 296, in which it has been observed as follows:
Even in cases where the High Court exercise power of revision under Section 115, C.P.C. it is not necessary always for this Court to interfere in every case where an order is wrong on technical grounds. The revisional jurisdiction of this Court is intended to secure and subserve ends of justice and not to deny it. In The State of Madras v. M.A. Noir Mohammed & Co. , this Court “has held that if interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction. Therefore, in a case where a substantial justice has been done by an order of the court which may suffer for want of jurisdiction, it is always not necessary to set aside such an order solely on the ground of lack of jurisdiction.
In yet another case reported in Trimalal Manilal Shah v. Misamiya Isam Haiderbox Razvi , it has been observed as follows:
In that view of the matter, it cannot be gain said that by this impugned order the learned trial judge has citied only in advancement or in furtherance of substantial justice. Such order as has the effect of causing substantial justice between the parties cannot and need not be interfered with by this Court in exercise of its revisional powers under Section 115 of the Code. The ruling of this Court in the case of Vasantrao Laxmenrao Sahane v. Sahghbi Aritlal Becharlal (1966) 7 Guj. L.W. 840, buttresses the aforesaid view taken by me. It has been held in para 6 at page 848 of the reported ruling:
It is now well-settled by a series of decisions of several High Courts that the High Court is not bound to interfere in revision in all cases in which it is found that the subordinate court has acted without jurisdiction or failed to exercise jurisdictions or acted illegally or with material- irregularity in the exercise its revisional powers only in aid of justice and not merely to give effect to a technicality which would not further the ends of justice. Where the High Court finds that substantial justice has been done between the parties by the order of the subordinate court, the High Court will not interfere with such order merely because the case come within any of the three clauses of Section 115, see the decision of this Court in Jagmohandas v. Jamndas .
The aforesaid observation made in the above judgments are on all force applicable to the facts of the present case.
9. In Chennichi alias Parikkal’s case (1970) 1 M.L.J. 454, this Court would observe as follows:
The exercise of the revisional powers of the High Court under Section 115, Civil Procedure Code, is purely discretionary. The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if such interference will produce hardship or injustice. The revisional jurisdiction of the court is intended to secure and subserve and ends of justice and not to deny or defect it. If interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction.
10. On the strength of these decisions, it is the contention of the counsel for the respondent that the substantial justice has been done by the impugned order by amending the decree by including the third defendant, the second petitioner , herein, this Court may not interfere with the impugned order by invoking the revisional jurisdiction.
11. I have carefully considered the submissions made on either side.
12. On a perusal of the plaint, it is revealed that the respondent/plaintiff filed a suit for specific performance by making all the petitioners as defendants 1 to 3. As a matter of fact, in the plaint itself it has been stated that the third defendant, the second petitioner herein purchased the property from the first defendant subsequent to the sale agreement and he not being the bona fide purchaser for value without notice has to execute the sale deed along with the other defendants in favour of the plaintiff. The relevant portion of the plaint is as follows:
13. It is to be noted that the first and second defendant, namely, the first and third petitioner herein, allowed the suit decreed ex parte, as they did not choose to be present themselves before the court. The third defendant, the second petitioner herein alone filed a written statement stating that he purchased the property from the first defendant and the sale deed was registered on 27.5.1981. According to the plaintiff, in pursuance of the sale agreement dated 4.2.1981 signed by the defendant 1 and 2, the second defendant executed the sale deed on 9.5.1981 in respect of the properties.
14. In the meantime, the plaintiff sent a notice on 3.5.1981 to the parties asking them to execute the sale deed. However, the first defendant refused to receive the notice. Having filed written statement dated 31.1.1983 before the learned District Munsif, Mannargudi, the third defendant, the second petitioner herein was also called absent when the suit was taken up for trial. Therefore, all the defendants were set ex parte and exparte decree was passed on 17.2.1984 after taking evidence of P.W. 1, the plaintiff, the respondent herein, directing the defendants 1 and 2 to execute the sale deed in favour of the plaintiff.
15. When the respondent filed E.P. No. 86 of 1993 against the petitioners for delivery of possession of suit property, the second petitioner who chose to be absent when the main suit was taken up for disposal and allowed the suit to be decreed as against all the petitioners, contested this execution application on the ground that in the decree, direction was given only to the defendants 1 and 2 and not to the third defendant.
16. On the basis of the said objection, the respondent filed another application for amendment of the decree to include the third defendant, the second petitioner, in the place of second defendant. Though the amendment was sought for by the plaintiff in respect of declaration that the sale deed dated 31.1.1981 executed by the second defendant in favour of the third defendant was not valid, the trial court rejected the said prayer, but allowed the decree by amending the para (a) of the decree by directing for substituting third defendant in the place of second defendant.
17. In such a circumstance, it cannot be said that the plaintiff has sought for amendment which would completely change the character of the suit. According to the plaintiff, one of the defendants executed the sale deed in favour of the plaintiff before filing the suit for specific performance. The other defendant who has got a share over the property though he was a party to the sale agreement, has herein executed the sale deed in respect of suit property in favour of the third defendant the second petitioner. Therefore, the 2nd petitioner who is admittedly in possession of the property, who is a party to the main suit, is bound by the decree passed by the trial court in the specific performance suit.
18. Under these circumstances, I do not find any error in the impugned order by making an amendment, thereby giving a direction to the third defendant, the second petitioner herein, instead of the other defendant.
19. As pointed out by the counsel for the respondent, though all the petitioners were impleaded as defendants in the suit for specific performance, the 2nd petitioner/third defendant alone appeared before the court and filed written statement. The other defendants have not cared to appear. As stated earlier, at the time of final disposal, even the third defendant chose to be absent. Therefore, the ex parte decree passed in the specific performance suit in which all the petitioners defendants were parties is binding on them and as such there is no illegality in amending the decree, as in my view, it could be said only as a clarification, the inclusion of the third defendant and as such the in the place of the other defendant in paragraph (a) of the decree is perfectly valid, since the said ex parte decree passed by the trial court on the basis of the evidence of P.W. 1, the plaintiff in the suit in which the third defendant also was a party.
20. In the result, the civil revision petition is dismissed. No costs.