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Judgment
C.Y. Somayajulu, J.—This petition is filed u/s 152 CPC seeking amendment of the decree in AS No. 1271 of 1990 dated 07-06-1996.
Petitioner a Charitable Trust filed O.S. No. 6 of 1981 on the file of Court of Subordinate Judge, Peddapuram inter alia seeking eviction of the defendant from the properties specified in plaint A to C schedules of the plaint and for delivery of possession of those properties on the ground that they are the properties belonging to it and that the founder of the Trust and/or successors in interest alienated them and that those alienations are not binding on it, 10th defendant who purchased a part of the land covered by S. No. 168 shown as item No. 3 of paint A schedule in Court auction and so 81st defendant was brought on record as her legal representative. After trial the trial Court partly decreed the suit and dismissed a part of its claim including the claim for recovery of land in S. No. 168. So petitioner being aggrieved by the dismissal of a part of its claim in respect of land in S. No. 168 and other lands preferred AS No. 1271 of 1990 to this Court and some of the defendants being aggrieved by the decree passed against them, filed separate appeals before this Court. All those appeals including AS No. 1271 of 1990 filed by the petitioner were heard together and by a common judgment delivered on 07-06-1996 a learned Judge while allowing AS No. 1271 of 1992 filed by the petitioner, dismissed the appeals preferred by the defendants. But due to an oversight or typographical error or otherwise S. No. 168 is not mentioned in para 11 of the operative portion of the judgment, and also in the decree, though in the body of the judgment it was observed that petitioner is entitled to a decree in respect of Ac.26=00 covered by S. No. 168. Therefore, petitioner filed this petition for correction of the decree by incorporating the land covered by S. No. 168 also in the operative portion thereof to read "that the dispensation of property bearing S.Nos. 54, 65/5, 73/1 and 168 in favour of the defendants is illegal and void."
During the pendency of this petition, respondents 72 and 73 filed ASMP No. 1197 of 2005, seeking leave of the Court to come on record as respondents 72 and 73 in this petition, on the ground that they purchased a part of S. No. 168 from the legal representatives of 81st defendant in the suit who was brought on record as legal representative of the deceased 10th defendant in the suit. That petition was allowed by me by the order dated 26-10-2006.
After they were added as parties to this petition counter affidavit of the 72nd respondent was filed on behalf of respondents 72 and 73 inter alia contending that they purchased Ac.12.00 in S. No. 168 in peddapuram under two registered sale deeds dated 22-04-1993 from Malladi Manikyamba and her adopted son Venkata Ramaiah and that their vendors acquired title to the land from Malladi Bullammai mother of Manikyamba and as the suit against her was dismissed and as no relief of recovery of possession in respect of item No. 3 of plaint A schedule was granted, petitioner filed AS No. 1271 of 1990 for recovery of possession of that item also. During the pendency of that appeal suppressing the factum of pendency of the appeal, Manikyamba sold Ac.12.00 in S. No. 168 to them, and so they are bonafide purchasers for value without notice of the litigation in respect of the item of land purchased by them. Though AS No. 1271 of 1990 was allowed on 07-06-1996, granting a decree in respect of item No. 3 of plaint A schedule also, since the decree is silent about that item, and as Ac.1-80 cents in SNo.168 was notified on 07-06-1994 for acquisition and was taken possession of under the provisions of Land Acquisition Act 1894 the Land Acquisition Officer passed an award fixing the compensation at Rs. 30,753/- per acre, but referred the case u/s 31(2) of the Land Acquisition Act to Civil Court, in view of the rival claims in OP No. 68 of 1995. On 23-09-2004 the reference Court held that the petitioner, but not they, are entitled to compensation awarded and so they preferred an appeal against that award to this Court which is still pending. Since they came to know about the pendency of appeal AS No. 1271 of 1990 during the pendency of the proceedings only, in the OP No. 68 of 1995, and since the decree does not mention about item No. 3 of the plaint A schedule, this petition filed u/s 152 CPC, after they have acquired rights in a part of item No. 3 of plaint A schedule, when petitioner failed to explain the reasons for the inordinate delay of six years in filing the petition is not maintainable. Since power to grant relief by exercising power u/s 152 CPC is discretionary and since Court cannot grant such relief if it effects the rights of bonafide third parties, petitioner is not entitled to the relief sought.
On behalf of petitioner its Executive Officer filed his reply affidavit contending that in view of the provisions of Section 52 of the Transfer of Property Act, respondents 72 and 73 who cannot acquire any right in derogation of its right by purchasing property covered by the suit during its pendency, have no right to oppose its petition.
The contention of the learned Counsel for the petitioner is that since the Court, u/s 152 CPC, can correct the mistakes that crept in the judgment and decree at any point of time, more so when the mistake is committed by it only, as per the actus curiae neminem gravabit (an act of court shall prejudice no man) the decree may be corrected to bring it in consonance with the judgment. He relied on Jayalakshmi Coelho Vs. Oswald Joseph Coelho, in support of his said contention. His contention is that since respondents 72 and 73 admit that they purchased the property from Malladi Manikyamba (81st defendant) and her adopted son under two registered sale deeds dated 22-04-1993, it is clear that the purchases were made during the pendency of the appeal AS No. 1271 of 1990 preferred by the petitioner. Relying on Mohammed Ali Abdul Chanimomin v. Bisahemi Kom Abdulla Saheb Momin and Anr. AIR 1973 Mys 131 where it is held that the principle of lis pendens embodied in Section 52 of Transfer of Property Act, being a principle of public policy, no question of good faith or bona fides arises and so the transferee from one of the parties to the suit cannot assert or claim rights and interest adverse to any of the rights and interests acquired by another party under the decree in the suit and that the principle of lis pendens prevents anything done by the transferee from operating adversely to the interest declared by the decree, he contended that inasmuch as respondents 72 and 73 purchased the property during the pendency of the suit, their contention that being bona fide purchasers for value, their right cannot be put to jeopardy cannot be countenanced.
The contention of the learned Counsel for the respondents 72 and 73 is that, since the trial Court dismissed the suit in respect of item No. 3 of plaint A schedule which includes S. No. 168 of Peddapuram, purchased by respondents 72 and 73 under registered sale deed dated 22-04-1993, and since the petitioner is guilty of gross negligence and delay, as it failed to take steps to move the application for correction of the decree for nearly six years after disposal of the appeal, and since respondents 72 and 73 without knowledge of the pendency of the appeal purchased the property by paying full consideration and since the intention of the petitioner is seeking the amendment is only to oppose the claim of respondents 72 and 73 in OP No. 68 of 1995, petitioner is not entitled to relief sought at this stage and placed strong reliance on S. RM. AR. S. SP. Sathappa Chettiar Vs. Umayal Achi and Another, , Bela Debi Vs. Bon Behary Roy and Others, , K.C. Mukerjee Vs. Ainaddin and Others, and Goli Ammiraju alias Ammanna Vs. Goli Kondalrayudu and Others, in support of the above contention. His contention is that since it is not even the case of the petitioner that there is no Executive Officer for it for all the six years the delay of six years in moving the application for amendment is not properly explained.
In reply the contention of the learned Counsel for the petitioner is that though copy application for the judgment in the appeal was made on 10-06-1996 i.e. about 3 days after the delivery of the judgment, copy thereof was delivered only on 26-03-1998 as seen from the certified copy of the judgment furnished to the parties and since the properties covered by suit are in different villages it took some time for the executive officer to find out the mistake in the decree and immediately after coming to know about the mistake this petition is filed and since in the judgment in the appeal it is clearly held that the dispensation of property bearing S.Nos. 54, 65/5 and 73/1 and 168 without impleading the trustees is void and inoperative, it is clear that non mention of S. No. 168 in the decree is only a mistake or over sight and so the same can be corrected at any time.
The ratio in the decisions relied on by the learned Counsel for the respondents 72 and 73 also is that the Court has power to amend the mistakes committed by it in its judgment and decree at any time unhindered by the law of limitation, but not if any third party''s rights have intervened ''subsequent to the decree'', and when such decree is allowed to remain as such for a considerable length of time.
In Abid Hussain case 1961ALT 308 (supra) the suit, which was filed in 1931, was compromised and a compromise decree was drafted, which omitted to mention a direction (which is there in the compromise) that the defendant should not extend his wall up to the wall of Durgamma, and remained as such without any amendment till 1955. Abid Hussan acquired rights from the legal representatives of the defendant in the suit and constructed a house without any obstruction or objection from the legal representatives of the plaintiff in O.S. No. 448 of 1931. In 1955 when a suit seeking mandatory injunction for closure of ventilators and for removal of a latrine and for a perpetual injunction restraining letting out water into the lane was instituted, a petition u/s 152 CPC for amending the decree in O.S. No. 448 of 1931 was filed in 1957. It was allowed by the trial Court. In revision the learned Judge after referring to the decisions of several High Courts including those of Madras High Court and House of Lords observing that the intendment behind seeking the amendment of the decree at that stage is only to use the same as a defence in O.S. No. 265 of 1955, set aside the order of the trial Court amending the decree.
In S. RM. AR. S. SP. Sathappa Chettiar Vs. Umayal Achi and Another, the amendment sought related to the costs taxed in the decree. The relevant portion of the judgment reads:
In the present case the advocate''s fee of Rs. 11350 was fixed as part of the costs awarded in favour of the successful defendant on the valuation of Rs. 15 lakhs. The defendant must have naturally paid his counsel at least the sum of Rs. 11350 in the faith and belief that he would be entitled to recover it as part of his costs from his adversary. His belief was justified and he was awarded the costs and he was also able to collect it from the plaintiff. Any amendment of the decree for costs by substitution of Rs. 2198-5-4 for Rs. 11350 will now enable the plaintiff to get back a sum of Rs. 9155-10-8 from the defendant who will certainly be hard hit by any such order for refund. It is now settled rule that the discretion which the court has to direct an amendment should not be exercised when the result of such amendment would affect the rights of third parties or which would be inequitable and unfair to one of the parties. "Where an error of that kind has been committed it is always within the competency of the court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the Judge obviously meant to pronounce" (Per Lord Watson in Hatten V. Harris, 1892 A.C.547; Stewart V. Rhodes, 1900-I, Ch.386, R. v. Cork County Council, (1911) AIR 206, Annual Practice, 1960 Edn. Page 633).
We are of opinion that the application filed by the plaintiff before the learned Judge on the Original Side of this Court is not maintainable as there are no grounds to sustain it and that even if the application can be held to be maintainable the circumstances are such that the discretion should be exercised not in favour of the amendment but in refusing it.
In Goli Ammiraju alias Ammanna Vs. Goli Kondalrayudu and Others, plaintiff in a suit for partition and separate possession of his 1/4th share in vast properties belonging to the joint family had in pursuance of the decree in second appeal taken possession of his 1/4th share as per the Commissioner report. Thereafter i.e. about 20 years after his taking delivery of his 1/4th share, he filed a petition in respect of two small items of land measuring Ac.0-82 cents and Ac.0-31 cents against 16 respondents representing the other 3/4th share holders, under Sections 151 - 153 C.P.C. for appointment of a commissioner either to divide the omitted two items in into four shares and deliver his 1/4th share to him or to re-value the shares in the properties covered by B schedule of the plaint and again work out the equities and pay him compensation from the other shares relating to his 1/4th share in those two items omitted to be given to him, in view of the fact that those two properties belong to the joint family is not disputed by the defendants in the suit. The trial Court holding that it has no power to grant either of the reliefs prayed for, dismissed the petition, observing that if he so chooses, he can move the High Court which had passed the decree in the second appeal. Questioning that order the plaintiff preferred a revision. Observing that the only course open to the plaintiff was to file a separate suit, if he is so advised, in respect of his 1/4th share in those two items against the persons in possession of those two items, and holding that Section 151 - 153 CPC are not intended for enquires into titles of parties to properties, dismissed the revision. The learned Judge in para 2 of the order in fact observed that the trial Court had the power to rectify any bona fide error not affecting the vested interests of others, like limitation, adverse possession etc., But in that case, as neither the plaintiff nor the defendants in that suit were in possession of any portion of those two properties from 1923 onwards, and as the learned Counsel for both sides also admitted that those properties are not in the of their clients, observed that it is not proper to include them in the decree, by amending it after a long period of 22 years, as the normal period of limitation for recovery of possession is only 12 years, and since person in actual possession of those two items are not known since then.
In Bela Debi Vs. Bon Behary Roy and Others, the consent decree contemplated that there should be a survey within a week. But nothing was done for ten years and in the meanwhile the nature of the contiguous properties, the municipal numbers were altered and a new road came into existence and the particular property, which the petitioner claimed was subject to a sale and/or mortgage ceased to exist. The learned Judge observing that there was no excuse for the laches on the part of the petitioner held that though there is no time limit for applications u/s 152 CPC, no amendment should be allowed if third parties had acquired rights and/or where it would be inequitable or unjust to allow the rectification and that laches, as per the circumstances of the case, might disentitle a party to relief u/s 152 CPC.
In Mukerjee case AIR 1932 Calcutta 563 (supra) one of the Judges in a division bench held that delay or negligence or laches in making an application for amendment of the decree u/s 152 CPC should not stand in way or prevent the petitioner from claiming relief against an error of the Court. Another Judge held that where there is a gross negligence or inexcusable laches on the part of the petitioner, application u/s 152 CPC ought not to be granted. So the case was posted before a third judge, who held that each case must depend upon its own facts and no hard and fast rule can be laid down, and unless a sufficient and satisfactory explanation is given by a party, of the delay caused in applying for amendment of the decree, the decree should not be amended.
In this case petitioner filed the appeal in 1990. Respondents 72 and 73, admittedly, purchased part of the property covered by the suit in 1993. In 1994 Government acquired a part of the property purchased by them and the Land Acquisition Officer referred the case u/s 31(2) of the Land Acquisition Act to civil court for determination of the title of the rival claimants i.e. petitioner and respondents 72 and 73. Therefore, it is clear that even in 1994, when the notification for acquisition of a part of the land purchased by respondents 72 and 73 was issued, since petitioner also made its claim to that property before the Land Acquisition Officer, it is clear that respondents 72 and 73 were aware that the petitioner is their rival claimant in respect of the property for which they also put in a claim. So they must be imputed with knowledge of pendency of the appeal. A.S. No. 1271 of 1990 preferred by the petitioner was disposed of only on 07-06-1996 i.e. three years after purchase by the appellants. For reasons best known to them respondents 72 and 73 did not think it fit to implead themselves as parties to the appeal. Why they failed to do so is not explained by them.
As rightly contended by the learned Counsel for the petitioner, in view of the ratio in Mohd. Ali Abdul Chanimomin case AIR 1973 Mysore 131 (supra), when properties covered by a suit are purchased during the pendency of the litigation, question of bona fides on the part of the purchaser have no relevance. As per explanation to Section 52 of Transfer of Property Act, suit should be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction and would be deemed to continue until it is disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained. Respondents 72 and 73 admittedly purchased the property covered by the suit during the pendency of the appeal, which was disposed of only after their purchase. So even assuming that they are bona fide purchasers, the judgment in the appeal would bind them. In all the decisions relied on by the learned Counsel for the respondents 72 and 73 there was an inordinate delay of more than 10 years and third parties acquired rights acting on or on the basis of the decree drafted(emphasis supplied). This is not a case of respondents 72 and 73 either acting on the basis of or in pursuance of a decree passed in appeal thinking that it has become final. They purchased the property even during the pendency of the appeal. None of the cases relied on by the learned Counsel for respondents 72 and 73 relate to purchase of property during the pendency of the proceedings before a court and so the effect of Section 52 of Transfer of Property Act did not come up for consideration in those cases. So those decisions do not in any way help respondents 72 and 73, because this is not a case of their acquiring right in the property covered by the suit after the suit is finally disposed of (emphasis supplied). So the ratio in the decisions relied on by the counsel for respondents 72 and 73 does not apply to the facts of this case.
In the judgment in AS No. 1271 of 1990, the learned Judge, admittedly, upheld the contention of the petitioner that the dispensation of property bearing numbers 54, 65/5, 73/1 and 168 is void and inoperative and so petitioner is entitled to a decree in respect of those properties also. But due to oversight or otherwise survey No. 168 is omitted in the operative portion of the judgment and also in the decree. Such omission is a clear mistake on the part of the Court or it must be a typographical error. So merely because the petition for amendment of the decree is filed six years after delivery of the judgment, it cannot be said that the petitioner is disentitled to the relief sought more so when it is not even the case of respondents 72 and 73 that they purchased the land after verifying the decree passed by this Court.
Therefore, the petitioner is entitled to the relief sought. In fact apart from the decree the operative portion of the judgment in para 11 also requires to be amended by including the S. No. 168 therein.
In the result, the petition is allowed. Parties are directed to bear their own costs.