ORDER
S. Jagadeesan, J.
1. After the matter was heard for some time, counsel for the respondent refused to argue the matter. Under the apprehension that he has not been fully heard and his client should be given an oppor-tunity to raise all objections before the lower court.
2. The review application has been filed only on the ground that the distribution of property in respect of item 22 of the schedule mentioned in the decree is not correctly mentioned so far as the survey number is concerned and hence the petitioner filed an application for amendment of the decree before the trial court to amend the survey number by incorporating the correct survey number alone. It is the contention of the counsel for the petitioner that no change of boundaries is sought for and the extent is specifically mentioned in the decree and there is no dispute with regard to the identification of the property also; but however, the trial court had rejected the amendment on the ground that since the matter had reached upto this Court by way of second appeal and the decree of the trial court having been merged with the decree of the second appeal, only this Court can amend the decree and the trial court has no jurisdiction.
3. I carefully considered the contention of the counsel for the petitioner. At the initial stage, counsel for the respondent raised the following objections:
(i) Without seeking the amendment of the plaint in respect of the schedule of properties, the amendment of the decree cannot be sought for.
(ii) the matter has been taken up by way of S.L.P. before the Supreme Court of India and as such this Court has become functus officio and this Court has no power to pass an order of amendment.
(iii) The S.L.P. has been argued on merits and ultimately the Supreme Court has dismissed the S.L.P. and as such only the Supreme Court has got power to amend the decree.
(iv) With regard to the new survey number which is sought to be incorporated in the decree by way of amendment, the evidence has to be taken so far as the correlation of the old survey number and the new survey Number is concerned and the respondents should be given an opportunity to put forth his objection before the court below,
(v) By way of amendment the petitioner is now seeking to recovery more extent of property than the extent mentioned in decree.
4. After hearing the counsel for the petitioner when this Court asked the counsel for the respondent as to when there is no dispute with regard to the identity of the property, what is the basis of the contention that the petitioner is claiming more extent than the extent mentioned in the decree and when the property has been described with prescribed boundaries in the decree what is the basis a that there is no correlation of the survey numbers. Counsel for the respondent got wild and said that what all the wants is that the trial court can be directed to hold an enquiry and let it be an order of court. Further he represents that it is a legal Aid brief and he is fighting for the cause.
5. I carefully considered the contention of the counsel for the petitioner. The only ground on which the review application has been filed is that since the second appeal has been disposed of by this Court, the decree of the trail court merged with the decree in the second Appeal and as such only this Court has power to amend the decree. Hence it is necessary to sea what is the amendment sought for at this stage. The amendment petition filed by the petitioner is as follows:
In Item No. 22 of the plaint schedule properties, strike off R.S. No. 127/1 and insert old R.S. No. 178/1 and new R.S. No. 332/5 and332/6.
The description of the property in item No. 22 in the decree is as follows:
The description of the property mentioned in the decree, specifically mentions the four boundaries and the measurement is also specifically mentioned. the Survey Number is given as 127/1. Now by way of amendment, the petitioner is seeking to introduce the new survey number alone. So far as the description of the property as well as the extent of the property are left as it is. The respondent also has not disputed the same. Hence it cannot be said that the petitioner is claiming a new property or more extent than the extent mentioned in the decree.
6. An identical case arose for consideration before this Court wherein amendment was allowed. It is worthwhile to refer the same reported in Srinivasan v. Thambusamy (1996) 2 L.W. 539 wherein the learned Judge, Mr. Justice AR. Lakshmanan, has discussed and held as follows:
Mr. T.M. Hariharan, learned Counsel for the plaintiff contended that the order of the trial court dismissing his application for amendment is vitiated by material irregularities in exercise of jurisdiction because it will lead to failure of justice and cause irreparable injury to the plaintiff. It is well settled that a bona fide mistake with regard to survey number that had crept into the plaint can be rectified. It is also contended by him that there is no dispute regarding the identity of the property and also with regard to four boundaries.
In support of his contentions, the learned Counsel Mr. T.M. Hariharan relied upon the decision in Subba Reddi v. Narayanaswami Reddi A.I.R. 1949 Mad. 282 : 61 L.W. 596. In that case, an application to amend the description of item No. 1 of the plaint schedule and in the schedule to the decree in a suit which was Ultimately disposed of by this Court in second appeal, by substituting for old Survey No. 23 corresponding to ReSurvey No. 17/1, Resurvey No. 23/1 corresponding to Revision Survey No. 27/1 The petitioner before the High Court was the plaintiff in the suit which was for recovery of several items of properties on the allegation that they were properties which originally belonged to one Chelamayya and the plaintiff and defendants 1 and 2 were the near-est reversioners of the said Chelmayya. Both in the courts below and also in this Court, the case was proceeded on the a footing that defendant No. 3 was interfered in item 1 of the plaint sched-ule and after the disposal of the second appeal by this Court, the plaintiff discovered that ap error had crept into the description of item 1 The description in the plaint schedule was that it Comprised 1 acre 25 cents out of R.S. No. 17/1 corresponding to Resurvey No. 23. The correct description should have been resurvey No-23/1 corresponding to revision Survey No. 27/1 That this in the correct description is clear from the sale deed in favour of defendant No. 3 This mistake in the plaint schedule was never brought to the attention of the court at any time, and the liti-gation proceeded on the footing that what the plaintiff was claiming was the property in the possession of defendants. It was not, for instances, alleged in any of the written statements that item I was a property which did not belong to the estate “of the last male holder. The application was strongly opposed by defendant No. 3 on the ground that there had been very long delay and that the court is not competent to grant amendment of the plaint schedule after the dismissal of the suit. Rejecting the objections Dr. Rajamanar, Officiating C. J, held as follows:
What is now sought in this application is not an amendment of the pleadings as such, it is really an application to correct an error which has crept also into the decree. The wide language of Sections 152 and 153, Civil P.C. would, in my opinion, cover a case like the present. The correction of an error need not always amount to an amendment of a pleading. I do not think it correct to treat this application as an application under Order 6, Rule 17.
Allowing the application in that case, the amendment and earned chief Justice has also observed that the application in that case was only to correct such an error and as on the merits there was no valid objection to the grant of relief and that he was not impressed by any technical objection. The above judgment was followed by another learned single judge of this Court (Krishnaswami Nayadu, J.) in Krishna Poduval v. Lakshmi Nachiar . wherein it has been observed as follows:
Where an application is filed for correction of an error as regards the Survey Numbers of an item of property in the plaint schedule and the decree schedule and there is no dispute as regards the identity of the property or boundaries to it, the amendment may be allowed under Section 152. The fact that the assignment deed of the property also has the same errors cannot disentitle the applicants to have the errors set right if they are entitled to it under the Code. So also the amendment cannot be refused on the ground that the decree sought to be amended is barred by limitation.
The learned Counsel for the plaintiff also relied on the decision of Punjab and Haryana High Court in Mohinder Singh v. Teja Singh can also be benefically looked into in this context. The Punjab & Haryana High Court followed the judgment of our High Court in Krishna Poduval v. Lakshmi Nachiar and other judgements of other High Courts. The court observed as follows:
When the mistake in the judgment and decree in a suit for possession occurred due to an accidental slip, by writing Khasra No. 20″ instead of Khasra No. 24 in the plaint and its notice was not taken even by the defendants during the course of the trial, and when in fact there was no doubt about the identity of land in dispute, as the same had been kept for establishing a school, in such a case necessary correction could be made in the plaint, judgment and decree under Section 152 C.P.C., because the corrections of the Kharsa number would not affect the identify of the field in dis-pute. ”
In the instant case also, there is no dispute with regard to the identify of the property. The defendant has raised only an objection with regard to the measurement and extent. The learned District Munsif has failed to see this aspect of the matter. Likewise, the court below has failed to give effect to its own finding. That the defendant has not dis-puted the identify of the property and has not stated that the survey number given in the plaint is wrong. The finding of the court below that Section 152, C.P.C. cannot be invoked to correct the Survey Number of the property and that Section 152 can be invoked only to correct clerical errors or arithmetical errors in the judgments and decree, in my opinion,,is errouneous. Likewise, the other reasoning given by the court below that any kind of correction can be carried out only before the decree is passed, is also not correct. The further conclusion of the court below that when a decree had been obtained for a particular survey Number, it cannot be corrected at the time of execution, is also “erroneous. Even assuming without admitting that the petition under Section 152, C.P.C. to correct the survey Number may be technically objected to, in the interests of justice, the court below should have ordered the application in its inherent powers, as the decree holder who Has obtained the decree after full contest cannot at all be deprived of the fruits of the decree on a technical reason.
7. In fact I had an occasion to deal with the similar matter, in an unreported judgment in C.R.P. No. 570 of 1994, wherein the trial court has allowed the amendment and a revision has been filed against the order of allowing the amendment, In that case also an identical objections have been raised, in fact where the amendment was allowed without notice to the judgment-debtor, in which it has been held as follows:
But any how it has to be considered as to whether at this stage the matter has to be remitted back on this ground. Admittedly the suit has been decreed for specific performance on 22.6.1990. There is discrepancy in respect of the boundary of one side of the plaint schedule property. It is further admitted that except the description of one side of the schedule property no other amendment is being sought for. The extent of the reparty is the same there is no dispute with regard to the identification of the property also. When there is no dis-pute with regard to the identification of the property. Then the respondents are entitled to get the sale deed in respect of the property which they agreed to purchase and the petitioners agreed to sell. I am of the opinion that only on technical objections the petitioners want to drag on the proceedings without any valid objection for the execution of the decree for specific performance by the respondents. Since the lower court has categorically found that the rights of the petitioners is not affected, it cannot be said that the petitioners are aggrieved by the order of the amendment. 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. 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.
8. Of course, the amendment sought for in this case can be said to be belated, but that may not be a ground to reject the amendment when the petitioner had succeeded in all the forums and got a decree for recovery of possession. If the amendment is rejected on such flimsy technical objections raised by the learned Counsel for the respondents, than not only the person who obtained the decree is deprived of the benefit of the decree but also the time spent by all the courts in disposing of the matter is to be considered as waste of judicial time. On the principle laid down in the above referred judgment, since tide mistake in the description of the property is bona fide. The review application can be ordered and the decree in O.S. No. 67 of 1976 on the file of the Sub-Court, Chidambaram, so far as the item 22 of the schedule mentioned property in the decree the Survey Num-ber has to be corrected.
9. The petitions is further permitted to file the necessary application to amend the description of the property in the plaint before the lower court and the lower court has to order the same consequent to the order of the review application without any further enquiry. The review application is ordered.