Indian Employees [ Judgment - 490 ]

Rakesh Kumar And Others Vs. Ashok Kumar And Anr.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved
AFR

Case :- MATTERS UNDER ARTICLE 227 No. - 1648 of 2015

Petitioner :- Rakesh Kumar And Others
Respondent :- Ashok Kumar And Anr.
Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh,Avanish Mishra
Counsel for Respondent :- S.C.,Bhoopendra Nath Singh

Connected with

Case :- MATTERS UNDER ARTICLE 227 No. - 1647 of 2015

Petitioner :- Rakesh Kumar And Others
Respondent :- Ashok Kumar And Another
Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh
Counsel for Respondent :- S.C.,Avanish Mishra,Bhoopendranath Singh

Hon'ble Ashwani Kumar Mishra,J.

1.These two connected petitions under Article 227 of the Constitution of India, arise out of orders passed in execution proceedings, and
have been heard together, and with the consent of learned counsel for the parties are being disposed of by this common judgment.
2.Dispute herein relates to a residential property belonging to late Lallu Lal, who is survived by four sons, namely, Rajesh Kumar, Vijay
Kumar and Santosh Kumar on one side, and Ashok Kumar and his wife Smt. Brijlesh Devi on the other side. Lallu lal died on
25.7.1997. Ashok Kumar and his wife set up a claim for the house property in question, on the basis of a will dated 25.10.1994,
registered on 11.11.1994, whereas other three brothers namely Rajesh Kumar, Vijay Kumar and Santosh Kumar asserted their right
over the house property, on the basis of an unregistered will dated 16.5.1997.
3.Ashok Kumar and his wife filed original suit no.72 of 1998 for mandatory injunction, seeking possession of two rooms on ground floor,
two rooms on first floor and four rooms on third floor, as per plaint map, of house no.K-46/83 and K-46/83, Hartirath, Varanasi, and for
directing the defendants to remove their possession from the aforesaid accommodation in question, and also restrain them from
interfering with plaintiff's possession over other part of house, which was already in plaintiff's possession. A declaration was also
sought that alleged will dated 16.5.1997, set up by three brothers, was null and void. A second suit no.51 of 1998 was filed by three
brothers for permanent injunction, restraining Ashok Kumar and his wife from evicting them, and also for a declaration that registered
will dated 25.10.1994 was null and void.
4.Both the suites were tried together and court of IInd Additional Civil Judge (S.D.), Varanasi, decreed original suit no.72 of 1998, vide
judgment and decree dated 30.1.2009. Unregistered will dated 16.5.1997 was held to be null and void and a direction was issued to the
three brothers, who were defendants therein, to remove their possession from the portion of house, as specified in para 17-A of the
plaint. The other suit, being original suit no.51 of 1998 was rejected. This decree was challenged by filing civil appeal no.21 of 2009
and 22 of 2009, under section 96 of the Code of Civil Procedure. These appeals were admitted on 3.3.2009, and parties were directed
to maintain status-quo. Both the appeals, however, were dismissed by the court of Additional District Judge, Varanasi, on 17.9.2010.
Second appeal no.1157 of 2010 and second appeal (defective) no.423 of 2010, filed before this court, against judgment and decree
dated 17.9.2010, were dismissed on 9.1.2012, under Order XLI Rule 11 CPC. Matter was thereafter carried in appeal before the Apex
Court in SLP, which too was dismissed on 2.11.2012. The decree passed by the trial court on 30.1.2009, therefore, has become final.
Decree dated 30.1.2009 of the trial court reads as under:-
"okn la[;k 51@98 jkds'k dqekj vkfn cuke v'kksd dqekj vkfn lO;; fujLr fd;k tkrk gSA okn la0 72@98 v'kksd dqekj vkfn cuke jkds'k dqekj
vkfn lO;; vkKfIr fd;k tkrk gS vkSj viathd`r olh;r fnukafdr 16&5&97 tks okn la0 51@98 ds dkxt la0 97x gS dks 'kwU; o vizo`fRr ?kskf"kr
fd;k tkrk gS rFkk ikfjr vkKkid vkKfIr izfroknhx.k dks vknsf'kr fd;k tkrk gS fd os fookfnr edku ds 46@82 ds 46@83 eq0 gjrhjFk 'kgj okjk.klh
ds Hkwry fLFkr nks dejksa o izFke ry fLFkr nks dejksa o r`rh; ry fLFkr pkj dejksa ftls okni= ds lkFk layXu ekufp= esa yky fr;sd js[kkvksa
ls iznf'kZr fd;k x;k gS ij ls viuk dCtk n[ky vanj ls ek= gVk ysos vkSj ml ij oknh dk v/;klu djk nsos rFkk tfj;s LFkk;h fu"ks/kkKk bl okn ds izfr
oknhx.k o okn la0 51@98 oknhx.k dks vknsf'kr fd;k tkrk gS fd os fookfnr edku ds ds0 46@82] ds0 46@83 fLFkr eqgYyk gjrhjFk 'kgj
okjk.klh ds rhuksa ryksa esa fLFkr oknhx.k ds v/;klu ,oa mlesa fLFkr jkLrk] lh<+h] nkyku 'kkSapky; o Luku?kj o [kqyh Nr ftls ekufp= esa
ykyh fyfid js[kkvksa ls nf'kZr fd;k x;k gS ds mi;ksx o miHkksx esa lko/kku djus ds lnk ds fy, euk fd;k tkrk gSA okni= ds lkFk layXu ud'kk o
fMxzh dk vax gksxkA bl fu.kZ; dh ,d izfr okn la0 72@98 ij j[kh tk;A"
5.An execution was thereafter applied, which was registered as Execution Case No.2 of 2009. In the execution application, relief of
possession was claimed in respect of two rooms situated on ground floor, two rooms on first floor and four rooms of second floor. An
application thereafter was filed, seeking amendment in the execution application that relief sought for possession on second floor be
substituted with third floor. An objection was filed stating that there exists no third floor. Executing court, however, allowed amendment
vide order dated 1.1.2011, observing that there is no occasion to examine as to whether third floor exists in the property, or not, in
execution proceedings, and as amendment was sought to specify third floor in place of second floor, which was in tune with the decree
passed, as such, the amendment was allowed.
6.An application under Order VI Rule 17 CPC was then filed by Ashok Kumar and his wife, stating that in the plaint map property has
been shown as consisting only of three floors i.e. ground floor, first floor and second floor, and in fact there is no third floor. Prayer,
therefore, was made that execution application may be permitted to be corrected by substituting third floor with second floor as
specified in the plaint map. This application for amendment was allowed on 20.8.2011 and a challenge made to it in revision also failed
vide order dated 23.2.2012. Challenging these two orders first petition no.12824 of 2012 has been filed under Article 226 of the
Constitution of India, which has subsequently been permitted to be amended as one under Article 227 of the Constitution of India and
has been renumbered as petition no.1648 of 2015. While entertaining this petition following orders were passed on 15.3.2012:-
"Issue notice to respondents who may file counter affidavit within one month. Petitioner may take steps within a week.
List after expiry of the aforesaid period.
The claim of the petitioner is that a suit being Suit No.72 of 1998 was decreed against the defendant whereby the possession over

www.indianemployees.com Page 1/4

 Indian Employees [ Judgment - 490 ]

certain rooms in House No. K-46/82 and K-46/83 were directed to be given to the plaintiffs, i.e. two rooms on the ground floor, two
roms on first floor and four rooms on third floor.
By way of an amendment before the Executing Court, the Court in Execution Case No.2/2009, the plaintiff-respondents have filed an
application seeking an amendment including second floor of the aforesaid house also. The said amendment has been allowed.
Learned counsel for the petitioner submits that the Executing Court cannot go behind the decree and in the decree, no amendment has
been sought wherein only ground floor, first floor and third floor rooms therein, the defendant-respondents have been directed to
remove the their possession and there is no direction so far as second floor is concerned, therefore, the Executing Court has erred in
allowing such an amendment in the Execution proceedings by order dated 20.8.2011.
Against the aforesaid order, a revision was also filed which has also been dismissed by the revisional Court. Apparently, it appears that
the decree is only with respect to ground floor, first and third floors and therefore, prima facie, it appears that the Executing Court has
erred in law in allowing the amendment so far as second floor is concerned.
Till the next date of listing, the operation of the order dated 20.8.2011 (Annexure 2 to the writ petition) passed by Additional Civil Judge,
(Senior Division), Court No.2, Varanasi shall remain stayed."
7.Another application under section 152 CPC, dated 17.1.2011, was also filed by Ashok Kumar and his wife, stating that in the plaint
map property has been specified as consisting of two rooms on ground floor, two rooms on first floor and four rooms on second floor,
whereas its description in plaint was wrong, inasmuch as no room exists on third floor, yet four rooms have been shown on third floor
instead of second floor. It was, therefore, prayed that in para 17-A of the plaint, plaintiff be permitted to substitute third floor with second
floor and the decree dated 30.1.2009 be modified, accordingly. This application under section 152 CPC was opposed by stating that
there is no room on third floor, and therefore, the decree passed for delivery of possession in respect of four rooms on third floor is not
capable of being executed. It was also submitted that there exists no provision in the eyes of law, whereby a composite application
could be filed, seeking amendment in the plaint as well as in decree, much after the decree has been affirmed upto the Supreme Court.
Various other objections were raised, including that decree of the trial court has merged in appellate decree dated 17.9.2010, and as
such trial court was left with no jurisdiction to modify the decree dated 30.1.2009. Submission was that a second appeal was pending
and it was stated that even otherwise, application under section 152 CPC was not maintainable.
8.Application under section 152 CPC has been allowed by the trial court in Misc. Case No.42 of 2012 and the plaintiff of original suit
no.72 of 1998 was permitted to amend para 17-A of the plaint and substitute description of property as four rooms on second floor in
place of third floor. This order of trial court dated 24.9.2012 has been challenged by filing second petition no.52859 of 2012 under
Article 226 of the Constitution of India, which has been renumbered as petition under Article 227 of the Constitution of India no.1647 of
2015. The subsequent petition filed in the year 2012 was entertained and order of the trial court dated 24.9.2012 was stayed by this
court vide order dated 17.10.2012.
9.Learned counsel for the petitioners has made following submissions:-
(i) Executing court cannot go beyond the decree and as relief of possession was granted, in respect of two rooms on ground floor, two
rooms on first floor and four rooms on third floor, as such, substitution of third floor with second floor was inconsistent with the decree
itself.
(ii) Section 152 CPC is available only to correct clerical or arithmetical mistakes in judgments, decrees or orders or errors arising
therein from any accidental slip or omission, but such provision cannot be invoked to amend pleadings of the suit or the execution
application. Once a decree has been signed, it cannot be altered except upon application under section 152 CPC or on review, and as
both these contingencies were not available, as such, the orders impugned cannot be sustained. Submission is that decree is to be
executed as per plaint allegation, relief claimed and granted, and not as per plaint map.
(iii) Section 152 CPC is not available to amend any decree or error in the suit proceedings, after dismissal of the suit.
(iv) Section 153-A CPC clearly provides that even forum for filing such application can be the court, in which judgment of the trial court
has merged.
(v) It is submitted that orders impugned are wholly without jurisdiction as trial court was left with no authority or jurisdiction to entertain
application under section 152 of the Code.
10.Learned counsel for the plaintiff-respondents, on the other hand, submits that in fact there existed only ground floor, first floor and
second floor, which was clearly shown in the plaint map and the mistake in describing top floor as third floor in para 17-A, instead of
second floor, was an inadvertent omission. Submission is that every court has inherent jurisdiction to correct such error, once decree
itself has become final. It is argued that an inadvertent error in pleading or decree can always be corrected, at any stage, and the
orders under challenge since serves the cause of justice, as such, they require no interference. It is submitted that
defendant-petitioners are rank outsider. Therefore, no failure of justice has been occasioned and the orders impugned cannot be
successfully assailed.
11.Having considered the submissions, aforesaid, it would be appropriate to first deal with submission, advanced on behalf of the
petitioners, on the aspect, relating to jurisdiction of the trial court to entertain application for amendment under section 152 CPC, in the
facts and circumstances of the present case.
12.Decree of the trial court in suit has already been extracted above. This decree has been affirmed in first appeal, second appeal, and
also by the Apex Court with dismissal of SLP. The question is as to before which court an application under section 152 CPC, for
correction, could be moved. According to the petitioners, once decree of the trial court had merged in the appellate order, the trial court
was left with no jurisdiction to entertain any such application in the matter, thereafter.
13.Perusal of the record shows that application dated 17.1.2011 was filed under section 152 CPC, for permitting the
plaintiff-respondents to amend 5th line of para 17-A of the plaint, by mentioning second floor in place of third floor, and for correcting
the judgment and decree dated 13.1.2009, by mentioning second floor in place of third floor. By this application, plaintiff-respondents
clearly seeks amendment in the plaint as well as decree of the trial court dated 30.1.2009.
14.Before proceeding further, it would be relevant to refer to the provisions of section 152 and 153-A CPC, which are as under:-
"152. Amendment of judgments, decrees or orders-- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising
therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of
any of the parties.
153-A. Power to amend decree or order where appeal is summarily dismissed.-- Where an Appellate Court dismisses an appeal under
rule 11 of Order XLI, the power of the Court to amend, under section 152, the decree or order appealed against may be exercised by
the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of
confirming the decree or order, as the case may be, passed by the Court of first instance."
Code of Civil Procedure permits clerical or arithmetical mistakes in the judgments, decrees, orders or errors arising therein from
accidental slip or omission to be corrected at any time, by the court, either of its own motion or on the application of any of the parties.
15.Legal principle is settled that a decree passed by trial court, when affirmed, merges in the appellate decree. Whether it would be the
court of first instance, or the appellate court, in which the decree has merged, to entertain application under section 152 CPC is the
question?
16.Legal position, in this regard, has been aptly summed up by the Apex Court in following words, in Gojer Bros. Pvt. Ltd. v. Ratan Lal
Singh: 1974 (2) SCC 453:-
"The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time. more

www.indianemployees.com Page 2/4

 Indian Employees [ Judgment - 490 ]

than one operative order governing the same subject-matter. Therefore the judgment of an inferior court, if subjected to an examination
by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior
court. In other words, the judgment of the inferior court loses its identity by its merger with the judgment of the superior court."
17.Proposition, aforesaid, has been consistently followed in Constitution Bench judgment in Kunhayammed and Ors. v. State of Kerala
and Anr.: (2000) 6 SCC 359, Chandi Prasad and Ors. v. Jagdish Prasad and Ors.: (2004) 8 SCC 724 and in Om Prakash Verma and
Ors. v. Andra Pradesh and Ors.: (2010) 13 SCC 158. Reliance has also been placed by learned counsel for the defendant-petitioners
upon decision of Full Bench of Kerala High Court in Thomas v. Kunjamma and another: AIR 2006 Kerala 40.
18.Section 153-A CPC, however, carves out an exception, in as much as, if the appeal has been dismissed under Order XLI Rule 11
CPC, then it would be the court of first instance which would have jurisdiction to exercise power under section 152 CPC. Such a
provision was introduced in the Code w.e.f. 1.1.1977, as different views were otherwise being taken by the High Courts in the matter. If
an appeal is dismissed under Order XLI Rule 11 CPC, it signifies that appellate court has not considered the appeal worthy of
admission and in such circumstances, there is no adjudication by appellate court and the principle of merger would not apply.
19.In the facts of the present case, it is undisputed that the appeal filed by the defendant-petitioners, against judgment and decree
dated 30.1.2009 had been entertained. Appeal was admitted after hearing the counsel for the plaintiff-respondents, who had appeared
on a caveat, and following orders were passed on 3.3.2009 by the appellate court:-
"3.3.2009
LkqukA vihykFkhZ o dSfo;sVj ds fo}ku vf/koDrk mifLFkr gSA vaxhd`r iathd`r gksA LFkxu izkFkZuki= ij mHk; i{k ds fo}ku vf/koDrk
;FkkfLFkfr ds fy;s lger gS mudh lgefr ds n`f"Vxr fookfnr edku ds lEcU/k esa ;Fkk fLFkfr cuk;s j[ksA okLrs lquokbZ fn0 27-3-09 dks is'k
gksA ewy fjdkMZ ryc gksA"
20.After the appeal was admitted, proceedings were adjourned from time to time and appellate court dismissed the appeal vide
detailed judgment and order dated 17.9.2010, running into 21 pages. It is, therefore, apparent that judgment and decree of the trial
court dated 30.1.2009, merged with the judgment of affirmance passed in first appeal.
21.This court, however, does not find substance in the contention of the petitioners that the operative decree in the present case would
be the one passed by the High Court in second appeal, inasmuch as it is undisputed that the second appeal was dismissed under
Order XLI Rule 11 CPC. In such circumstances, by virtue of section 153-A CPC, application for correction under section 152 CPC
could be moved only before the court, of which the decree operates.
22.Reliance has also been placed upon the judgment of a Learned Single Judge of the Calcutta High Court in Mehta Suraya v. United
Investment Corporation: AIR 2002 Calcutta 108, which relies upon decision of this Court in Ram Bharosey Lal v. Rameshwar Dayal
Chakkiwal: AIR 1984 Alld. 164. Para 29 of the said judgment is reproduced:-
"29. When Section 153A can be resorted to:
29.1. The Jurisdiction under Section 153A conferred on the trial Court, is available only when the appeal is dismissed by the appeal
Court under Order 41 Rule 11 and not otherwise. So far as the High Court is concerned, in the appellate side rules, in Chapter V Rule
17(a), it is provided that an appeal from original decree is not required to be set down for hearing under Order 41 Rule 11. The Stamp
Reporter admits it, if it is found in Order, as soon it is placed before the stamp Reporter, after its presentation. Therefore, the disposal
of the appeal in the present case, is not a disposal under Order 41 Rule 11, and as such Section 153A is not attracted. Inasmuch as,
Section 153A is attracted only in a case where the appeal is dismissed under Order 41 Rule 11 CPC. Unless the appeal is dismissed
under Order 41 Rule 11 CPC, the trial Court cannot assume jurisdiction to correct the decree. Admittedly, in the present case the
appeal was dismissed after hearing both the parties. Such dismissal in respect of an appeal from original decree, by no stretch of
imagination, can be said to be a dismissal under Order 41 Rule 11 CPC. Order 41 Rule 11 CPC postulates admission of an appeal
without hearing the respondent. The respondent has no right of hearing in course of hearing of Order 41 Rule 11 CPC. It provides that
such hearing is to be made without serving notice on the respondent or his pleader. Therefore, if any hearing is given to the respondent
at the time of dismissal of the appeal, it is not a dismissal within the meaning of Order 41 Rule 11 CPC, as is contemplated in Section
153A. In Ram Bharosey Lal v. Rameshwar Dayal Chakkiwala , it was held that even if the decree merges in that of the Superior Court,
Section 153A enables the trial Court or the Court of first instance to correct an error in the decree, without divesting the Superior Court
of its jurisdiction to effect such correction. In the said case the question related to a merger of the trial Courts decree in that of the
Superior Court on account of dismissal of the appeal under Order 41 Rule 11 CPC. Inasmuch as in the said case the appeal was
dismissed under Order 41 Rule 11 CPC, which fact is distinguishable in the present case.
29.2. In Smt. Chandra Kala Devt v. Central Bank of India, it was held that after a decree is appealed from and a final order is made by
the Appellate Court, the lower Court ceases to have jurisdiction over the matter. The decree in effect becomes the decree of the
Appellate Court and the Jurisdiction to amend the decree is in the Appellate Court, not in the Court below. The lower Court becomes
functus officio. Mr. Mitra contended that this decision was rendered before Section 153A was inserted in CPC. But such a contention is
out in place in view of the fact that Section 153A CPC applies in a case where the appeal is dismissed under Order 41 Rule 11 CPC,
which is not a case in the present one, and as such the said decision still holds good in respect of the matters where appeal was not
dismissed under Order 41 Rule 11 CPC. By reason of such amendment the said ratio has become subject to the provisions of Section
153A.
29.3. In Karma and Others v. Narayani and Others it was held that except in cases, to which Section 153A CPC applies, where there
has been an appeal, the decree under appeal merges in the decree on appeal, and it is only the Appellate Court that could correct or
amend the decree under Section 152 CPC. As soon appeal is disposed of on merits, the decree of the trial Court merges in that of the
appeal Court. Section 153A does not apply to appeals dismissed otherwise than under Order 41 Rule 11. This decision supports the
view 1 have taken."
23.Learned counsel for the respondents has not been able to dispute the factual proposition that appeal filed under section 96 of the
Code had been admitted, and thereafter it was decided, by a reasoned judgment and order of the appellate court. Since dismissal of
appeal by the first court was not under Order XLI Rule 11 CPC, judgment and decree of the trial court would merge with judgment and
decree of affirmance passed by the appellate court. In such a factual scenario an application under section 152 CPC would not be
maintainable before the trial court. This objection was specifically taken before the trial court, but the same has been erroneously
rejected vide order dated 24.9.2012. In view of the discussions, aforesaid, application under section 152 CPC could be moved only
before the first appellate court, decree whereof was operative and trial court had no jurisdiction to entertain the application under
section 152 CPC, and therefore, the order impugned dated 24.9.2012 is not liable to be sustained.
24.Much emphasis was laid by the learned counsel for the plaintiff-respondents upon a judgment of this court in Km. Mona Singh v.
Unknown, delivered on 6th December, 2005, to contend that application under section 152 CPC could be entertained to correct the
plaint averments even at this stage of proceedings. Para 133 of the judgment is reproduced:-
"133. The following principles, amongst others, follow from the decisions and legal provisions noted above:
1. Under Section 152 of the Code of Civil Procedure, the Court may make correction in judgment, decree or order in respect of the
following:
(a) Clerical mistakes.
(b) Arithmetical mistakes.
(c) Errors arising from any accidental slip or omission.
2. Error arising from any accidental slip or omission [mentioned in category (c) in Principle Number 1 above] may arise in the judgment,

www.indianemployees.com Page 3/4

 Indian Employees [ Judgment - 490 ]

decree or order
(i) on account of any accidental slip or omission in the judgment, decree or order itself,
(ii) on account of any accidental slip or omission in the pleadings of the parties which travelled into the judgment, decree or order,
(iii) on account of any accidental slip or omission in any document wherefrom it travelled into the pleadings and from the pleadings, the
same travelled into the judgment, decree or order.
3. Error in the judgment, decree or order arising under any of the categories (i), (ii), or (iii) in Principle Number 2 above, may be
corrected under Section 152 of the Code of Civil Procedure.
4. Correction of error in judgment, decree or order in cases falling under categories (ii) or (iii) of Principle Number 2 above, may be
done without first amending the pleadings of the parties.
However, in such cases, the Court has power to permit amendment of pleadings and thereafter, make correction in the judgment,
decree or order regarding accidental slip or omission. Such permission to amend the pleadings may be granted under Section 152,
Code of Civil Procedure, itself, or in any case, under Sections 151 and 153, Code of Civil Procedure, read with Section 152, Code of
Civil Procedure.
5. While correcting any error under Principle Number 4 above, whether without first getting the pleadings amended or after getting the
pleadings amended, the Court must have regard to the nature of error and the prejudice that may be caused to the contesting party by
correcting such error.
6. Power of correction under Section 152, Code of Civil Procedure, should not be exercised when rights of third party get involved and
are likely to be adversely affected.
7. Usual example of Principle Number 4 above is where the identity of land in question is not in dispute, but mistake is committed in
giving number and/or boundaries in the document and/or in the pleadings and as a result, the mistake travels to the judgment, decree
or order. However, the principles mentioned above are of general application and apply to other kinds of mistakes also."
25.The aforesaid judgment, relied upon by the plaintiff-respondents, is not an authority for the proposition, with which the court is
presently concerned. At this juncture, it is being examined as to whether the application under section 152 CPC could be moved before
the court of first instance or the appellate court, and the merits of the application itself is not being tested. The judgment, thus relied
upon, is of no assistance to the plaintiff-respondents.
26.Although other submissions, on the scope of application under section 152 CPC, have been pressed by learned counsel for the
petitioners, but as the order impugned is not liable to be sustained, on account of lack of jurisdiction in the trial court to entertain such
an application, therefore, all other submissions are not required to be dealt with by this court, at this stage. Since the application itself
was not maintainable before the trial court under section 152 CPC, order impugned dated 24.9.2012 is without jurisdiction. The petition
no.1647 of 2015, under Article 227 of the Constitution of India, therefore, succeeds.
27.So far as the order passed by the executing court dated 20.8.2011, permitting amendment in execution application, as well as its
affirmance in revision vide order dated 23.2.2012 are concerned, it transpires that an application was filed by the plaintiffs/applicants in
execution under Order VI Rule 17 CPC read with section 151 CPC for permitting plaintiffs/applicants to amend execution application,
by mentioning third floor in place of second floor. This application was allowed by the trial court upon payment of cost. Revisional court
has affirmed such an order by observing that the mistake was an accidental slip and all such proceedings could be corrected under
section 152 of the Code. This court finds that application under Order VI Rule 17 CPC was not maintainable, so long as the decree
itself was not amended, inasmuch as prayer in the execution could only be in accordance with the decree. Once the decree specified
the property as consisting of four rooms on third floor, no prayer could be permitted by way of amendment in execution to seek relief in
respect of four rooms on second floor. Trial court, therefore, had exceeded its jurisdiction in allowing amendment application under
Order VI Rule 11 CPC read with section 151 CPC, without getting the decree amended first. So far as its affirmance in revision is
concerned, the same cannot be sustained, as by virtue of section 153-A CPC, any exercise of power under section 152 CPC could be
available only to the appellate court, and not to trial court. In such view of the matter, petition no.1648 of 2015 under Article 227 of the
Constitution of India is also liable to succeed and the order dated 20.8.2011 of the executing court and the order dated 23.2.2012 of the
revisional court are liable to be quashed.
28.However, before parting, it would be appropriate to take note of the fact that house property in question, in respect of which relief
claimed has been allowed, actually consisted of two rooms on ground floor, two rooms on first floor and four rooms on second floor, as
is clear from the plaint map. Parties are not at issue that in fact there exists no third floor. In such circumstances, the argument
advanced by learned counsel for the plaintiff-respondents that mentioning of third floor was an accidental slip, cannot be doubted.
However, step to seek appropriate amendment has to be initiated before the court having jurisdiction in the matter, in accordance with
law. In view of the discussion and findings returned in this order, it is apparent that an application under section 152 CPC could be filed
only before the first appellate court.
29.Accordingly, both the petition succeeds and are allowed. The orders dated 23.2.2012 and 20.8.2011 (Annexure No.1 & 2 to the
petition no.1648 of 2015) as well as the order dated 24.9.2012 (Annexure No.1 to the petition no.1647 of 2015) are set aside. It would
be appropriate to observe that in case such any application under section 152 CPC is filed before the appropriate court, the same shall
be dealt with by the court concerned, with all expedition, by fixing weekly dates and without granting any unnecessary adjournment to
either of the parties, in accordance with law.
30.However, no order is passed as to costs.
Order Date :- 29th May, 2015

www.indianemployees.com Page 4/4