1992 PLP 400 (CLC)

ABDUL KARIM KHAN KUNDI, J.‑‑These proceedings have a chequered history. Petitioner was granted a decree in a pre‑emption suit which was affirmed in appeal and revision by the. Court of District Judge and High Court respectively after full hearing. Petitioner made an application under section 152 read with section 151 C.P.C. to the trial Court for rectification of a clerical error in' the decree sheet. The trial Court dismissed his application for want of jurisdiction where against he filed a revision in the Court of District Judge who also dismissed his revision under observations that the final decree in the case was passed by the High Court in the exercise of its revisional jurisdiction after full hearing and he should better approach the High Court for a redress. C.M. No.203 of 1987 was accordingly filed in this Court, which was, however, withdrawn with permission to seek a redress by way of a writ petition under contention that the trial Court as well the Court of District Judge had acted without lawful authority in dismissing the petitioner's application and revision for rectification of clerical error in the decree sheet and accordingly he filed a Writ Petition No.10 of 1988 which was admitted to hearing. Pending his writ petition he was once again advised to make a request for treating his writ petition as a review petition and his such request was duly granted and his writ petition was accordingly treated and numbered as Civil Review No.4 of 1989.

2. After hearing the learned counsel for the parties and perusing the record, we have found that original mutation No.1891 was entered with respect to 1/4th of some 13 khasra numbers incorporated in the `Raqoom script' that No.82 can be also read as No.84 and vice versa and Khasra No.82 or 84 was shown spreading over an area of 3 Kanals 15 Marlas and the total area of 13 Khasra numbers was calculated 22 Kanals 12 Marlas. In order of attestation dated 19‑2‑1975 made by the Revenue Officer, 13 Khasra numbers in a total area of 22 Kanals 12 Marlas were incorporated in English numbers and disputed Khasra No.82 was shown as Khasra No.84. At the time of drafting the plaint the learned counsel for the plaintiff was misled and a clerical error has crept in that out of 13 Khasra numbers in total area of 22 Kanals 12 Marlas Khasra No.82 instead of Khasra No.84 was shown in the area of 3 Kanals 15 Marlas and the same clerical error continued till last and was incorporated as such in the decree‑sheets of the trial Court, the appellate Court and the revisional Court, without objection from either side and having also not been noticed by either side throughout,

3. Firstly we have to resolve the dispute, whether an application for rectification of the aforesaid clerical error in the decree‑sheet was to be made before the trial Court or the final Court of adjudication herein the High Court. AIR 1932 Patna 238 lays down a law that in case of appeal summarily dismissed, an application for rectification of a decree shall lie before the lower Court and not the appellate Court under observations that it is only after hearing the parties, that the appellate Court affirms, varies or reverses the decree appealed from, that the decree of the lower Court merges into the decree of the appellate Court that an application for the rectification of a decree shall then lie to the appellate Court. The legal position vis‑a‑vis exercise of revisional jurisdiction is also on the same lines that as and when the revisional jurisdiction is invoked and both the parties are heard and an order is made on merits, the order of the subordinate Court becomes merged into the order of the revisional Court as in the case of an appellate order. Thus to attract the merger of the relevant decision in appeal or revision the appeal or revision must have been decided on merits and after notice to the opposite party with opportunity of hearing. In support of the view reference is made to AIR 1967 SC 681.

4. In view of the above, this Court would exercise its review jurisdiction vis‑a‑vis its order dated 12‑10‑1987 vide the learned counsel for the petitioner was allowed to withdraw from the C.M. with permission to agitate the moot point by way of writ petition. In fact the very C.M. was competent before this Court since the High Court had passed a final decree on merits after hearing the parties with notice and the decrees of the lower Courts had merged into the decree of the High Court. Hence the C.M. for rectification of the decree under section 152 read with section 151, C.P.C. was duly competent before the High Court and was to be disposed of on merits. In fact there was a misunderstanding on the part of the learned counsel for the petitioner and also the High Court that the petitioner was allowed to withdraw from his C.M. with permission to agitate the matter by way of a writ petition. Civil Review No.4 of 1989 is accordingly allowed and C.M.No.203 of 1987 is restored to hearing on merits.

5. In view of the merits of the case already discussed here is a case of rectification of a clerical error. The original sale mutation pertained to some 13 khasra numbers in a total area of 22 Kanals 12 Marlas in 1/4th share. Khasra numbers were given by the Patwari Halqa in `Raqoom script' that Khasra No.82 can be also read as Khasra No.84 and vice versa. The order of the Revenue Officer in one copy incorporates the Khasra numbers in `Raqoom script' and in the other copy the Khasra numbers are given in English numbers. Besides, the error having crept in the decree‑sheet whether clerical or otherwise cannot amount to partial pre‑emption that it should not be allowed. This Court would consequently allow C.M.No.203 of 1987 and order the rectification in the decree‑sheet of this Court as well as in the decree‑sheets of the lower Courts as prayed for. There is made no order as to costs. AA./1272/P Order accordingly.