Moulvi Serajuddin Ahmed Vs. Idris Ali and others, 3 LNJ (2014) 735

Case No: Civil Revision No. 7109 of 1991

Judge: Mahmudul Hoque,

Court: High Court Division,,

Citation: 3 LNJ (2014) 735

Case Year: 2014

Appellant: Moulvi Serajuddin Ahmed

Respondent: Idris Ali and others

Delivery Date: 2013-01-02


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Mahmudul Hoque, J.

Judgment on
02.01.2013
 
  Moulvi Serajuddin Ahmed   
… Petitioner.
-Versus-
Idris Ali andothers
…Opposite parties.
 

Code of Civil Procedure (V of 1908)
Section 152
Order 47, Rule I
The plaintiff-appellant sought correction of judgment on mistaken view of law for which remedy is provided by Order 47 of the Code of Civil Procedure. If the decree is sought to be varied for any reason other than the clerical error or arithmetical mistake it can be done only by review or by preferring revision but the petitioner filed application under section 152 C.P.C. seeking variation of the judgment which cannot come within the purview of section 152. . . . (7)

No one appears

Civil Revision No. 7109 of 1991
 
JUDGMENT
Mahmudul Hoque, J.
 
This Rule has been issued at the instance of the plaintiff-petitioner under section 115 of the Code of Civil Procedure calling upon the opposite parties No. 1-7 to show cause as to why the order dated 20.7.85 passed by the learned Subordinate Judge Thakurgaon in Other Class Appeal No. 16 of 1984 should not be set aside and /or such other or further order or orders passed as to this Court may seem fit and proper.

Facts relevant for  disposal of this rule, in abridge, is that, the disputed property was belonged to Moharaja Taraka Nath Chowdhury who left the country for India after partition of Pakistan in the year 1948 leaving the property uncared for. The plaintiff-petitioner entered into the possession of the suit land and possessing the same by cultivating paddy therein. Subseq-uently, the property was enlisted as evacuee property and recorded in the name of the Government under khas khatian. The plaintiff-petitioner being found in possession for more than 12 years Bangladesh Government by a registered deed dated 11.12.1974 settled a portion of the scheduled property covered by plot No. 2376 measuring .09 acre and 2378 measuring .21 acre of land to the plaintiff-petitioner. The defendant in suit by creating fraudulent document managed to get their names recorded in the khatian in connivance with the Government officials and on the basis of wrong khatian they tried to obstruct the plaintiff from cultivating the suit land as a result of which the plaintiff-petitioner constrained to file the suit for declaration of title and for declaration to the effect that the khatian stand recorded in the name of the defendants is illegal, void and without any basis. The defendant-opposite parties No. 1-6 appeared in the suit and filed written statement denying all the material allegations made in the plaint contending, inter alia, that the property in question was originally belonged to Moharaja Taraka Nath Chowdhury who died leaving 3  minor sons, namely, Korma Nath Chowdhury, Rudhra Nath Chowdhury and Seko Nath Chowdhury. The said heirs of Moharaja Taraka Nath Chowdhury being minor the property was managed and controlled by the Court of Wards. The Officers of the said Court of Wards made a settlement for .42 acres of land out of plot No. 2378 to the defendants No. 1,2 and 4  and on the basis of said settlement S.A. Khatian stand recorded in the name of the defendants. Thereafter on coming to know about obtaining settlement of .21 acres of land by the plaintiff, defendant No.1 filed an objection petition before the A.D.C. (Rev.) for cancellation of the lease/ settlement who upon hearing and considering facts and circumstances of the case cancelled the settlement for .12 acres of land covered by plot No. 2378 keeping .09 acre of land in the name of the plaintiff. The defendants having been possessing .42 acres of land out of .51 acres covered by plot No. 2378 , the plaintiff has/ had no title and possession beyond .09 acre of land  covered by plot No. 2378 and prayed for dismissal of the suit.

The trial court upon contested hearing dismissed the suit by its judgment and decree dated 25.9.83. Thereafter the plaintiff preferred Other Class Appeal No. 16 of 1984 before the District Judge, Thakurgaon which was eventually heard by the learned Subordinate Judge, Thakurgaon who upon contested hearing allowed the appeal in part holding that the defendants admits the title and possession of the plaintiff to the extent of .09 acre of land covered by plot No. 2376  and .09 acre covered by plot No., 2378 and as such the plaintiff is entitled to get a decree in respect of .18 acre of land and decreed the suit in part by its judgment and decree dated 19.3.1985  instead of decreeing the suit for .60 acres of land. The Appellate Court further observed that the A.D.C. (Rev.) cannot cancel a registered documents making settlement of the suit property in favour of the plaintiff without intervention  of the civil court.  The plaintiff-petitioner being aggrieved by the judgment filed an application under section 152 of the Code of Civil Procedure praying for decreeing the suit for .39 acres of land instead of .18 acres. The Appellate Court heard the application and upon hearing rejected the same by impugned order dated 20.7.85 holding that the court found title and possession of the plaintiff-appellant in .18 acres of land only and accordingly decreed the same and for remaining quantum of land, the lower appellate court found no title and possession of the plaintiff as such the  claim to the extent of .42 acres of land was refused and the lower appellate court  also found that there was no clerical mistake in the judgment.

No one appears to press the rule.

Perused the application, judgment passed by the lower court and impugned order rejecting the application under section 152 of the code of Civil Procedure.

From perusal of the judgment of the appellate court it appears that the court decreed the suit in part on clear finding that the plaintiff could prove title and possession in respect of .18 acres of land only and on that finding the appeal was allowed. In the event of dissatis-faction of the plaintiff-appellant it was open for the plaintiff-appellant either to go for revision against the judgment and decree or to file an application for review of the judgment but the plaintiff-appellant without taking recourse to revision or review filed an application under section 152 of the code of Civil Procedure seeking amendment of the judgment and decree. . To appreciate the point in dispute, section 152 C.P.C. is reproduced below,
“Section 152- Amendment of judgments, decrees or orders- Clerical or Arithmetical mistakes in judgment and 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”.

Section 152 provides provision for correction of clerical or arithmetical mistake in judgment. Under this section  clerical or arithmetical  mistake in the judgment, decree or order or errors arising therefrom can be corrected by the court but in the instant case the lower appellate court below found no mistake or error in the judgment and decree . It is also found that the plaintiff-appellant sought correction of judgment on mistaken view of law for which remedy is provided by Order 47 of the Code of Civil Procedure. If the decree is sought to be varied for any reason other than the clerical error or arithmetical mistake it can be done only by review or by preferring revision but the petitioner filed application under section 152 C.P.C. seeking variation of the judgment which cannot come within the purview of section 152. For the reasons stated above I do not find any illegality in the impugned order passed by the appellate court in rejecting the application under section 152  of the Code of Civil Procedure and as such the rule is liable to be discharged.

In the result the rule is discharged without any order as to costs.

Send down the lower court records with a copy of this judgment to the court concerned at once.

Ed.