1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2645 OF 2009 1. Vacchalabai Ambadas Dhanwate, age 63 yrs, Occ. Agri, R/o Shirasgaon, Tq. Shrirampur, Dist Ahmednagar. 2. Smt. Sumanbai Ambadas Dhanwate, age 57 ys, occ. Agri, R/o Shirasgaon, Tq. Shrirampur Dist. Ahmednagar. 3. Kum. Vaishali Ambadas Dhanwate, at present Sau. Vaishali Babasaheb Mate, age 24 yrs, occ. Agri, R/o Brahmangaon Vetal, Tq. Shrirampur, Dist. Ahmednagar. 4. Ku. Vanita Ambadas Dhanvate at present Vanita Babasaheb Godge ate 22 yrs, occ. Agri, r/o Ashvi (BK) Tq. Sangamner, Dist. Ahmednagar. 5. Ku. Kalyani Ambadas Dhanvate age 21 yrs, occ. Household, r/o Shirasgaon, Tq. Shrirampur, Dist. Ahmednagar, 6. Ku. Asha Abasaheb Dhanvate age 27 yrs, occ. Agri, r/p Ganeshnagar, Tq. Rahata, Dist. Ahmedngar. PETITIONERS. V E R S U S 1. Sanjay Sitaram Gaware, age 42 yrs, occ. Agri, r/o Shirasgaon, Tq. Shrirampur, Dist. Ahmednagar. RESPONDENT 2 Shri R.A. Tambe, Advocate for the petitioners. Shri A.M. Gaikwad, Advocate for the respondent. CORAM : B.R. GAVAI, J : DATE : 23rd JUNE, 2009. PER COURT :- 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioner challenges the order passed by the learned 3rd Jt. Civil Judge J.D. Shrirampur dated 04.12.2008 thereby rejecting the application Exh.21 and an application below exh.22. 3. The petitioner has filed a suit bearing RCS No. 201/1997, claiming for declaration that the petitioner-plaintiff was owner of 1H 24 R land in S.No.73 of Mauje Shirasgaon and 0.56 R in S.No.74 of Shirasgaon. Said suit came to be decree by judgment and decree dated 03.05.2001 and the petitioner was held and declared to be the owner of suit land. The defendants have also directed to handover the possession of the suit land to the plaintiff. However, it appears that in the judgment there has been typographical mistake that while mentioning 0.56R land, instead of gat No.74 it came to be transcribed as gat No.73. The respondent being aggrieved thereby preferred an appeal before the learned District Judge. The learned District Judge vide judgment and decree 3 in RCA No. 109/2001 dated 08.06.2005 dismissed the appeal. Being aggrieved thereby Second appeal was preferred and the same is also dismissed vide order dated 16.04.2009. 4. It appears that during the pendency of the Second appeal the petitioner noticed that there was a clerical error in judgment and decree passed by the trial court which also came to be continued in the appellate decree, the petitioner filed an application for correction of the decree passed in RCS No.201/1997. Said application came to be rejected. Hence present petition. 5. Shri R.A.Tambe the learned counsel appearing on behalf of the petitioner submitted that since there was a typographical error and it also has been noticed by the learned trial court, the learned trial court ought to have exercise its jurisdiction under section 151 (2) and correct the same. He submitted that by not doing so, the learned trial court has failed to exercise its jurisdiction. 6. Shri A.M. Gaikwad the learned counsel appearing on behalf of the respondent on the contrary submitted that executing court cannot go beyond the decree , the learned trial court has rightly rejected the application. 7. It appears to be undisputed position that there has been clerical error right from the judgment and decree passed by the trial court up to the judgment and decree passed in appellate court. 4 From the perusal of plaint it would reveal that plaintiff had sought declaration in respect of 1H 24 R land out of gat No.73 and .56R land out of gat no.74. However, it appears that though gat no.73 was concerning, in land ad measuring 1H 24R , even in respect of 0.56R land it came to be transcribed as gat no.73 though in fact declaration which was sought by the petition was for gat no.74. The trial Court has observed thus in its judgment thus : “Thus primafacie from the whole judgment and the dispute the suit is for 1H 24 Aar land out of gat no.73 and 56 Aar land out of gat no.74 of village Shirasgaon but it clearly appears that while writing 56Aar land out of gat No.73 is mentioned but in fact it ought to have been 56 Aar land out of gat no.74.” Thus I am of the concrete opinion that it is nothing but the accidental slip and the same can be corrected by following the provision of Section 152 of C.P.C. and there is no necessity to hold any inquiry to that effect.” 8. As noticed above, there has been a typographical or a clerical mistake in transcribing writing gat no.73 instead of gat no. 74. Thus in view of provision of Section 152 of Civil Procedure Code, the same can be corrected at any stage even by Court on its motion. 9. Shri Gaikwad the learned counsel appearing for the respondent submits that correction can be done but it has to be done 5 only by Appellate Court and trial Court had no jurisdiction and if the petitioner so desire he could have to get necessary correction made either in the First appeal or in the Second Appeal. 10. It is settled law that procedure is hand made of justice and merely on hyper technical ground a party cannot be asked to go from one court to another Court. The trial court has clearly observed that mistake is nothing but an accidental slip. In this background I find that denying the relief to the petitioner on hyper technical ground would not be in the interest of substantiative justice. In that view of the matter, I am inclined to allow the petition in terms of payer clause ‘B’. Rule is made absolute. ( B. R. GAVAI ) JUDGE ..... aaa/wp2645.09 6