2004 PLP 1199 (YLR)

(c) Civil Procedure Code (V of 1908)

Ss.152 & 115

Amendment of decree-- Revisional jurisdiction

High Court refused to interfere in exercise of its revisional jurisdiction where the Trial Court had drawn the decree-sheet incorrectly and any interference with the amended decree would have deprived someone of the fruits of the decree

Principle that no one should be prejudiced by the act of the Court had to be kept in view. Shahbaz Khursheed for Petitioners. Ras Tariq Chaudhry for Respondents. Date of hearing: 22nd December, 2003. Mst. Raj Bibi, the predecessor-in- interest of the respondents, on the basis of inheritance, filed a suit for possession with regard to 1/2 share of the land measuring 164 Kanals and 2 Marlas, which suit was decreed by the learned Civil Judge on 30-1-1980. She did not apply for the execution of the decree seeking possession, but subsequently on 25-1-1992, her legal heirs/respondents, moved an application for the correction of the decree, stating therein that, the decree has been passed to the extent of full land i.e. 164 Kanals and 2 Marlas, whereas the entitlement of Mst. Raj Bibi is only to the extent of 82 Kanals and 1 Marla, therefore, it should be corrected accordingly. This application was allowed by the learned Civil Judge, but without notice to the petitioners. However, after the requisite amendment of the decree, in the execution process, the respondents got such amended decree executed, through the process of the Court and got the physical possession of their share, when the petitioners moved an objection petition, claiming that the decree could not have been amended after the lapse of time for execution; it was illegally amended without notice to the petitioners; besides that before issuing the warrants for possession, was not issued to the petitioners. The objection petition was allowed by the learned Executing Court vide order dated 30-11-1995. However, on appeal filed by the respondents, which was accepted on 2-3-1998, the objection petition has been dismissed.

2. Learned counsel for the petitioners contends that, no correction in the decree could have been allowed after the expiry of period of limitation and that too without notice to the petitioners; moreover, the execution application was barred by time, therefore, it was in executable and should have been straightaway dismissed. Lastly, it is submitted that no notice, at any stage of the proceedings, either in the correction process of the decree, or in the execution, was issued to the petitioners, which has rendered the entire proceedings and the orders, void ab initio. In support of his contentions, learned counsel has relied upon the judgments reported as Land Acquisition Officer (B&R), Hyderabad v. Seth Allahudino 1983 CLC Karachi 865 and Pakkiri Muhammad Rowther v. L. Swaminatha Mudaliar AIR 1938 Madras 573.

3. I have heard the learned counsel for the parties and find that, Mst. Raj Bibi was enforcing her right of inheritance and had clearly claimed in the suit the half share of the suit land measuring 164 Kanals and 2 Marlas, which means that precisely, her entitlement was 82 Kanals and 1 Marla. The suit was decreed as was not finally contested by the defendants, rather conceded, and had attained finality. However, due to a conspicuous error in the decree-sheet, instead of 82 Kanals and 1 Marla, full land measuring 162 Kanals and 2 Marlas was mentioned. Therefore, until and unless the decree was amended, corresponding to the claim of Mst. Raj Bibi, the same was not executable. It is settled law that, for the purposes of correction of a decree-sheet, so as to bring it in line with the judgment, the Court has the powers even to sub motu make the correction, or an application in this behalf by the concerned party, can be moved at any time. There is absolutely no bar of limitation in this regard. Resultantly, even if the legal heirs of Mst. Raj Bibi had applied for the correction of the decree after the lapse of 12 years, yet the Court. without notice, as a matter of duty, being satisfied that the request is genuine and bona fide and the mistake in the decree is apparent, conspicuous and floating on the face of the record, could correct the decree without notice to the opposite side. In such situation, the rule of violation of hearing principles shall not be applicable.

4. The other argument that, after the lapse of period provided for the execution of the decree, no amendment could have been allowed, also has no force because, in the facts and circumstances of this peculiar case, the decree had attained the finality, but due to error of the Court, the true area was not mentioned therein, rather the area given was even beyond the claim of Mst. Raj Bibi, which could not have been so, therefore, either on pointation of the concerned party or on its own motion, the Court, even after the expiry of the period of limitation for the execution, could grant the amendment, as has been done in the present case. The two judgments cited by the learned counsel for the petitioners, have no relevance to the facts and circumstances of the case.

5. It may be pertinent to state here that, when repeatedly questioned by the Court, if there was any impediment in the way of the Court to have disallowed the amendment of the decree; if an application in this behalf was moved within three years time, and that the petitioners would have any valid defence to resist the decree, the learned counsel for the petitioners has not been able to give any plausible answer. Therefore, in exercise of my revisional jurisdiction, I do not find this to be a fit case for interference, when it would vividly be an injustice to a person who, had got the decree in his favour, but the t decree-sheet was incorrectly drawn by the Court, should be deprived of the fruits of the decree, as the principle that, no one should be prejudiced by the act of the Court, is squarely applicable to the case in hand. In the light of above, this revision petition has no force and is hereby dismissed. M.A.W./N-9/L Petition dismissed.