P L D 1965 (W (PLP)

Respondent in person. Date of hearing : 3rd December 1964. The short question involved in this civil revision is whether the Court after having passed the final decree in a partition suit had become functus officio or could in exercise of inherent powers under section 151, C. P. C. reopen the proceedings for appoint ment of a Commissioner to partition the suit house on the spot by metes and bounds.

2. The material facts are these:‑ On the 8th of July 1954, Nazar Din was granted a preliminary decree in a partition suit and when he made an application for passing of the final decree, an objection was raised by the other side that the suit house was not partition able, and on this point an issue was framed and the Court came to the conclusion, after consideration of the evidence, produced by the parties, that the house was partitionable. Accordingly a final decree was granted in favour of the plaintiff on the 30th of April 1956, but by an oversight the Court omitted to appoint a Commissioner to partition the suit house on the spot. The decree‑holder sued for execution and then came to know that the decree could not be executed. He, therefore, made an application to the trial Court for rectification of the error in exercise of its inherent jurisdiction. Mr. Muhammad Akhtar, Sub‑Judge 1st Class, Nowshera, disposed of the application on 21st March 1961. The learned Judge considered that section 151, C P C was inapplicable inasmuch as it only provides for rectification of clerical mistakes or omissions made by the Court in its judgment or decree. He also took the view that in the case under consideration if the application were to be accepted, the result would be to reopen the case for the appointment of the Commissioner after setting aside the final decree which he was not competent to do in view of the provisions of section 152 of the Civil Procedure Code which do not empower the Court passing the decree to set it aside. Aggrieved by the order of the Civil Judge 1st Class, Nowshera, dated the 21st of March 1961, Nazar Din came up in revision.

3. Learned counsel for the petitioner vehemently argued that the Code had ample power under section 151, C. P. Code to pass the order for the appointment of a Commissioner to partition the suit house on the spot notwithstanding that a final decree had been passed. He referred to section 151, C. P. Code and also relied on an Indian ruling reported as Kapila Bai v. H. S. Madhava Rao and others (A I R 1957 Mysore 71). Section 151 of the C. P. Code reads as under: "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

4. In the reported case after a preliminary decree in a partition suit a warrant was issued for delivery of possession of properties by metes and bounds. The warrant was returned with the report that it had been duly executed with the result that a final decree was ordered to be drawn up. Later on, however, an application was made that the properties were not divided and the petitioner in that case was not in possession of one‑third share and that the report on the warrant was false. It was held in the reported case that the trial Court had the jurisdiction to enquire into the genuineness of the report on delivery warrant.

5. The facts of the reported case are not on all fours with the facts of the present case, but on reference to the language of section 151, C. P. Code, I am clear in my mind that the Court has ample power to rectify the error by appointing a Commissioner to divide the suit house on the spot by metes and bounds as it was necessary to secure the ends of justice. The error on the part of the Court to appoint a Commissioner for partitioning the house on the spot was due to some misunderstanding and the petitioner was in no way to be blamed for it.

6. In the result, the revision petition is allowed, the order of the Sub‑Judge 1st Class, Nowshera, dated 21st March 1961, is set aside and the case is remitted to the lower Court who will dispose it of afresh in the light of the observations made above. In view, however, of the peculiar circumstances of the case, I pass no order as to costs. K.B. A. Petition accepted.