Phankra vs Shankar Dass

V.K. Ahuja, J.—Present petition has been filed by the Petitioner, who was the Plaintiff before the learned trial Court, against the order, dated 21.7.2004, passed by the learned trial Court dismissing the application filed u/s 152 CPC for correction of the decree.

A notice of the petition was issued to the Respondent.

I have heard the learned Counsel for the parties and have gone through the record of the case.

The Petitioner as Plaintiff had filed a suit for possession and in that suit, Respondent/Defendant took up a plea of adverse possession, but it was held that the Respondent was not in adverse possession and was found to be in possession of the suit land. Those findings were affirmed by the learned First appellate Court on appeal filed by the Respondent. The Petitioner filed an Execution petition and it was reported by the Kanungo that the Plaintiff was already in possession of the suit land and, therefore, the decree in question could not be executed. A Civil Revision petition was also filed by the Petitioner and this Court vide order dated 3.5.2002 set aside the order passed by the learned Sub Judge and the Petitioner was permitted to withdraw the Execution petition with liberty to take appropriate remedy in accordance with law. Thereafter, the application u/s 152 CPC was filed, which was dismissed by the learned trial Court vide its impugned order.

It is clear from a perusal of the record that the decree in question was passed by the learned trial Court relying upon the Tatima Ext.PW-3/B and the report of the Kanungo Ext.PW-3/A. The basis of the decree passed in that case was the report of the Kanungo and the Tatima was also exhibited, but inadvertently it was not made part of the decree leading to a prolonged litigation in between the parties, due to which the Petitioner has not been able to get the possession even though the decree was passed in his favour on 30.4.1993. The facts of the case clearly suggest that in the decree sheet, it should have been clearly mentioned that the Tatima Ext.PW-3/B and the report Ext.PW-3/A shall be treated as part of the decree in question and, therefore, the application filed by the Petitioner deserved to the allowed.

In view of the above discussion, the petition is allowed and the impugned order is set aside. Necessary correction be made in the decree sheet. The petition stands disposed of accordingly, so also the pending application(s), if any.