IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE SEVENTEENTH (17TH) DAY OF AUGUST, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.219 of 2009 Between: M.Sidda Reddy … Petitioner And: M. Ramana Reddy …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.219 of 2009 ORDER: This revision petition is directed against the order dated 05.11.2008 in IA No.1049 of 2003 in OS No.231 of 1991 on the file of the Principal Senior Civil Judge, Chittoor, wherein, the said application filed by the petitioner herein under Section 152 CPC seeking amendment of paras 20 and 21 of the judgment dated 23.11.2000, was dismissed. 2. Heard both sides. Perused the record. 3. The respondent herein filed suit for declaration of title and for permanent injunction with regard to plaint B schedule property or in the alternative for partition of the B schedule property. According to the plaintiff, plaint A schedule properties consists of joint family properties and also properties of their mother covered by Ex.B.4 settlement deed. The petitioner/ defendant contested the suit, stating that the items 1 to 8 of the plaint A schedule are his self acquired properties and the properties covered by Ex.B.4 belongs to their mother and they are alone to be divided. The defendant also filed suit OS No.17 of 1993 for declaration of title and for permanent injunction in respect of items 1 to 8 of A schedule. The said suit was tried along with the present suit OS No.231 of 1991 and common judgment was passed, where under, OS No.17 of 1993 was decreed declaring the title of the defendant herein in respect of items 1 to 8 of the plaint A schedule and consequently dismissing the claim of the respondent herein- plaintiff in OS No.231 of 1991 in respect of the said items 1 to 8 of the plaint A schedule and preliminary decree for partition of the properties covered by Ex.B.4 settlement deed was passed accordingly. Ex.B.4 is in respect of items 9 to 13 of the plaint A schedule and 28 cents in Sy.No.30/10, which is part of items 14 and 15 of the plaint A schedule in OS No.231 of 1991. According to the petitioner/defendant, due to typographical error in paras 20 and 21 of the judgment, it is stated that preliminary decree was passed for items 9 to 17 of the plaint A schedule in OS No.231 of 1991 instead of items 9 to 17 excluding Sy.No.30/10 i.e., an extent of 18 cents, which is part of items 14 and 15, inasmuch as Ex.B.4 properties alone are held liable for partition. The defendant therefore filed I.A. No.1049 of 2003 for rectification of the mistake in the judgment and decree. The respondent-plaintiff filed counter opposing the same. The trial Court by order dated 05.11.2008 dismissed the application. Aggrieved by the same, the present revision petition is filed by the defendant. 4. The suit was filed seeking declaration of title in respect of plaint B schedule property and for grant of permanent injunction or in the alternative for partition of plaint A schedule property into two equal shares to the plaintiff and defendant, who are brothers. According to the plaintiff, A schedule properties are not the self acquired properties of the defendant and they are purchased in his name. He also pleaded prior partition in the year 1973 where under, according to him, plaint B schedule property was allotted to the plaintiff. He claimed exclusive title over the plaint B schedule property. The defendant, on the other hand, contended that the plaint A schedule properties are the self-acquired properties and he acquired items 1 to 8 with his own funds and items 9 to 17 of A schedule are covered by Ex.B.4 settlement deed dated 01.03.1954 executed in favour of their mother Munemma. He further pleaded that though there was tentative arrangement between the plaintiff and defendant for cultivation of those items, it was not regular partition by metes and bounds. He therefore has no objection for effecting partition of items 9 to 17. He further contended that there was no earlier partition in 1973 as alleged by the plaintiff. He filed separate suit OS No.17 of 1993 for declaration of title and for injunction in respect of items 1 to 8 of A schedule in OS No.231 of 1991. After full-fledged trial, by common judgment dated 23.11.2000, OS No.231 of 1991 was partly decreed, directing division of items 9 to 17 of the plaint A schedule into two equal shares and the claim of the plaintiff in respect of items 1 to 8 of plaint A schedule and his claim in respect of plaint B schedule based on the alleged earlier partition, was dismissed. Consequently, OS No.17 of 1993 filed by the defendant in OS No.231 of 1991 in respect of items 1 to 8 of A schedule in OS No.231 of 1991 was decreed, granting relief of declaration and injunction. 5. In para 17 of the judgment, the trial Court while answering issue No.1 in OS No.231 of 1991, held that the items 1 to 8 of the plaint A schedule is the self-acquired property of DW.1, which is proved by the evidence of DWs.1 to 3 and therefore, the said property is not liable for partition and with regard to remaining items of plaint A schedule, they are liable for partition. Thus, the items 9 to 17 covered by plaint A schedule alone are held liable for partition and the plaintiff has no right in respect of items 1 to 8 of A schedule. While discussing issue No.3 in OS No.231 of 1991 and issue Nos.1 and 2 in OS No.17 of 1993, the trial court observed in para 19 of the judgment that it is the case of the defendant in OS No.231 of 1991 that except the items covered under Ex.B.4 in plaint A schedule in OS No.231 of 1991, the other items are his self-acquisitions and therefore, only those items, other than the items 1 to 8 are liable for partition. In para 19 of the judgment, the trial Court held that the property purchased under Exs.B.1 to B.3 are the self acquired properties of DW.1 and the defendant is in exclusive possession and enjoyment of the plaint schedule property in OS No.17 of 1993, which are items 1 to 8 of the plaint A schedule in OS No.231 of 1991. It was specifically noticed by the trial Court that some of the items in B schedule are mere repetition of the items shown in A schedule and that the items 1, 2, 3, 4, 7 and 8 of the plaint B schedule correspond to items 9, 10, 14 to 17 in plaint A schedule respectively. It was also held in para 19 that since Ex.A.17 partition chitta is rejected on the ground that it is legally not valid, the relief sought for by the plaintiff for declaration in respect of B schedule was also rejected. On issue No.4 in OS No.231 of 1991 in para 20 of the judgment, it was held that the plaintiff is entitled for partition only in respect of items covered under Ex.B.4 i.e., items 9 to 17 of plaint A schedule in OS No.231 of 1991 and in so far as other items are concerned i.e., items 1 to 8 of plaint A schedule in OS No.231 of 1991, the claim of the plaintiff is dismissed. 6. The intention of the trial Court was therefore clearly expressed in the judgment to the effect that the items 9 to 17 of A schedule are liable for partition into two equal shares. The trial court also clearly expressed its intention that the plaintiff is not entitled for any relief in respect of partition of items 1 to 8 of A schedule and the claim of absolute title and injunction in respect of the plaint B schedule was also dismissed, holding that the alleged earlier partition was not legal and valid. Item 3 of plaint B schedule comprise two sub items, an extent of 50 cents in Sy.No.30/13 and 28 cents in Sy.No.30/10. The said item 3 of B schedule is repeated as item No.14 in A schedule. Similarly, item 4 of B schedule is an extent of 18 cents in Sy.No.30/5, which is repeated as item 15 in A schedule. 7. The contention of the petitioner/defendant is that inasmuch as the items 3 and 4 of B schedule are held not liable for partition, they ought to have been excluded while directing partition of items 9 to 17 of A schedule and the failure to make a mention of such exclusion in paras 20 and 21 of the judgment is on account of inadvertent error. Learned counsel for the respondent, on the other hand, would contend that there is a specific direction for partition of items 9 to 17 of the A schedule, which includes an extent of 28 cents in Sy.No.30/10 and 18 cents in Sy.No.30/5 and the fact that the claim of exclusive title made by the plaintiff in respect of those items along with the other items mentioned in B schedule was rejected does not mean that the said items are not liable for partition and it is not the case of rectification of any clerical error or typographical error in the judgment. 8. Section 152 CPC reads as follows: ‘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.’ 9. The above provision clearly enables the court to correct any clerical or arithmetical mistake in the judgment or decree or errors arising from any accidental slip or omission. 10. In ‘Jayalakshmi Coelho vs. Oswald Joseph Coelho[1]’ while dealing with the scope of Section 152 CPC, the apex Court held as follows: “As a matter of fact such inherent powers would generally be available to all Courts and authorities irrespective of the fact whether the provisions contained under Section 152, CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise that is to say while passing the decree the Court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the Court but unintentionally the same does mention in the order or the judgment or something which was intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the Court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought Court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Court's inherent powers as contained under Section 152, CPC. It is to be confined to something initially intended but left out or added against such intention.” 11. Relying upon the above judgment, learned counsel for the petitioner would contend that in the present case also intention of the Court was to exclude the above two items of 28 cents and 18 cents, which are items 3 and 4 of the B schedule and due to inadvertent mistake, they were not excluded while directing partition of items 9 to 17 of A schedule, though they were repeated as items 14 and 15 of A schedule. 12. He also relied upon the decision in ‘Yempalla Ramaiah v. Pallamparthi Krishna Reddy[2]’, wherein, this Court held that ‘successful plaintiff should not be deprived of fruits of decree on account of accidental slip or omission not touching merits of the case and the court passing decree can make appropriate corrections in judgment and decree to enable decree-holder to realize fruits of decree obtained by him’. 13. Learned counsel for the respondent relied upon the decision in ‘Dy. Director, Land Acquisition v. Malla Atchinaidu[3]’, wherein, the apex Court held that ‘where there is no clerical error in judgment and variance between the judgment and the decree is alleged, such variance should be apparent on perusal of the judgment and the decree and if no such variation is apparent, rectification under Section 152 is not permissible’. 14. He also relied upon the decision in ‘Dwaraka Das v. State of Madhya Pradesh[4]’, wherein, the apex Court held that ‘the omission sought to be corrected which goes to the merits of the case is beyond the scope of section 152 for which the proper remedy for the aggrieved party is to file appeal or review application’. 15. The principles laid down in the above decisions are not disputed. It is well settled that the act of the Court shall not prejudice anybody (Actus Curiae Neminem Gravabit). However, if the prejudice is result of act done by the Court consciously and is not on account of any clerical or arithmetical mistake or error arising from any accidental slip or omission, the same is not liable for correction under Section 152 CPC. The question, which therefore arises for consideration in the present case is whether there was any clerical or arithmetical mistake or error arising from any accidental slip or omission in not excluding the above two items which are part of items 3 and 4 of B Schedule and shown as items 14 and 15 of A schedule, while directing partition of items 9 to 17 of A schedule. 16. A perusal of the A and B schedules appended to the decree would show that the disputed items i.e., 18 cents in Sy.No.30/5 is shown as item No.3 and 28 cents in Sy.No.30/10 shown as item 4 in the plaint A schedule are again shown as items 15 and sub item (2) of item 14 in the A schedule, which corresponds to item 4 and sub item 2 of item 3 of B schedule. The said extents of 28 cents in Sy.No.30/10, 18 cents in Sy.No.30/5, which are sub item (2) of item 3 and 4 of plaint B schedule are not liable for partition in view of the categorical findings recorded by the trial court declaring exclusive title of the petitioner/defendant in respect of those items 1 to 8 and decreeing the suit OS No.17 of 1993 filed by him. The trial Court also gave finding to the effect that the items 1 to 8 of A schedule are not liable for partition. As the said extents of 28 cents in Sy.No.30/10 and 18 cents in Sy.No.30/5 being items 3 and 4 of plaint A schedule are not liable for partition, the same items which got repeated as item 15 and sub item (2) of item 14 are liable to be excluded. The judgment makes it clear that only those items covered by Ex.B.4 are liable for partition. The disputed items i.e., 28 cents in Sy.No.30/10 and 18 cents in Sy.No.30/5 are not covered by Ex.B.4 and hence, they are not liable for partition. The decree should therefore be granted for partition of items 9 to 17 of plaint A schedule excluding 28 cents in Sy.No.30/10 which is sub item 2 of item No.14 and 18 cents in Sy.No.30/5, which is item 15 of plaint A schedule. The mistake or error is quite apparent on the face of the record, as the non-exclusion of the said two items from the items which are held liable for partition i.e., from item 9 to 17 of A schedule, clearly goes against the intention of the court as expressed in the judgment to the effect that the items 1 to 8 are exclusive and self- acquired properties of the defendant and it is only those properties covered by ex.B.4 that are liable for partition. It is well settled that the decree, which is formal expression of the court conclusively determining the rights and liabilities of the parties is in conformity with the judgment. As the decree in the present case by not excluding those two items, 28 cents in Sy.No.30/10 and 18 cents in Sy.No.30/5 from the arena of partition, having held that the said items, which are part of items 1 to 8 being self acquired properties of the defendant are not liable for partition, suffers from a mistake or error which is apparent on the face of the record and is therefore, amenable for correction under section 152 CPC. 17. In the circumstances, the impugned order rejecting the prayer for amendment of the decree is held unsustainable and is accordingly set aside. Consequently, IA No.1049 of 2003 is allowed and the preliminary decree is directed to be amended by excluding the above two items i.e., 28 cents in Sy.No.30/10 and 18 cents in Sy.No.30/5 from partition while referring to items 9 to 17 of plaint A schedule. 18. In the result, the civil revision petition is allowed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 17.08.2011 bss [1] AIR 2001 SC 1084 [2] 2007(1) ALD 367 [3] (2006) 12 SCC 87 [4] AIR 1999 Sc 1031