IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 22321 of 2009(O) -------------------------- OS.46/2002 of M.C.,PARAPPANANGADI .................... PETITIONER(S): --------------- KAVUNGAL MUSTHAFA, S/O. MOIDU HAJI, VELIMUKKU P.O., MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ SRI.SAJU.S.A RESPONDENT(S): --------------- 1. FATHIMA UMMA, W/O. KAVUNGAL MOIDU HAJI, V.K.PADI, A.R.NAGAR, MAMBURAM DESOM. 2. KADEEJA, D/O. KAVUNGAL MOIDU HAJI, V.K.PADI, A.R.NAGAR, MAMBURAM DESOM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22321 of 2009(O) APPENDIX Petitioners Exhibits: Ext.P1: True copy of the preliminary decree in O.S.No.46/2002, Munsiff Court, Parappanangadi dt. 03.12.2003 Ext.P2: True copy of the report and plan of the Advocate Commissioner in I.A.No.541/2004 in O.S.No.46/2002, Munsiff Court, Parappanangadi dt. 04.02.2008 Ext.P3: True copy of the final decree order in I.A. No.541/2004 in O.S.No.46/2002, Munsiff Court, Parappanangadi dt. 27.10.2006 Ext.P4: True copy of the report of the Amin in E.P. No.204/2007 in I.A. No.541/2004 in O.S.No.46/2002, Munsiff Court, Parappanangadi dt. 23.07.2007 Ext.P5: True copy of the application E.A. No.174/2009 in E.P.No.204/2007 in O.S.No.46/2002, Munsiff Court, Parappanangadi dt. 17.01.2009 Ext.P6: True copy of the order dated 10.07.2009 in E.A.No. 174/2009 in E.P.No.204/2007 in O.S.No.46/2002, Munsiff Court, Parappanangadi /True copy/ P.A. To Judge Jma S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.22321 OF 2009 -------------------------- Dated this the 10th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari and call for the records pertaining to Ext.P6 and quash the same. ii) Issue a writ of mandamus or any other writ order or direction to send a fresh and new Commissioner to inspect and measure the property and deliver the property according to final decree order. iii) Issue a writ of mandamus or any other writ, order or direction to amend the final decree as per the inspection of the new Commissioner and to record the same. W.P.(C).No.22321 OF 2009 Page numbers iv) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time. 2. Petitioner is the plaintiff in O.S No.46 of 2002 on the file of the Munsiff Court, Parappanangadi. The above suit was one for partition, and the respondents are the defendants. Pursuant to passing of the final decree in the above suit, petitioner / plaintiff applied for execution to get separate possession of the property allotted in his favour. When the Ameen visited the suit property it was noticed that there was a mistake in the side measurement shown in the plan attached to the final decree relating to the suit property. The advocate commissioner who prepared that plan was also deputed to assist the commissioner to effect delivery. He also found W.P.(C).No.22321 OF 2009 Page numbers that in showing the side measurement on the eastern side of the suit property there was a difference of three metres. Petitioner thereupon moved an application for remitting the commission report and plan so as to get a correct plan by the same commissioner. That application was filed before the execution court under Section 152 of the Code of Civil Procedure. The application was opposed to by the respondents. The learned Munsiff after hearing both sides found that the mistake that was sought to be corrected cannot be considered as an arithematical mistake rectifiable by invoking Section 152 of the Code of Civil Procedure. The application was therefore dismissed. Ext.P6 is the order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.22321 OF 2009 Page numbers 3. Though notice was served, respondents have not entered appearance. I heard the learned counsel for the petitioner. Learned counsel for the petitioner submits that because of the mistake of the measurement shown with respect to one of the sides of the suit property despite the decree passed in his favour the property allotted cannot be delivered over to him. The application filed for correction could be treated as one moved on the trial side because the execution court is the same court which passed the decree and appropriate orders necessary to advance the ends of justice has to be passed in the case, is the submission of the counsel. After going through Ext.P6 order, I find the court below has not gone into the question whether actually there was a discrepancy in the measurement shown in the plan attached to the final decree which has resulted in return of the warrant issued by the Ameen for delivery of the property. W.P.(C).No.22321 OF 2009 Page numbers Court below has examined only the question whether the mistake as to the correction falls under Section 152 of the Code of Civil Procedure. It is to be noted that a decree has already been granted in favour of the petitioner / plaintiff. Though the execution court cannot be go behind the decree it must see that even if there is vagueness or ambiguity or mistake, it has to examine whether it is amenable for correction so that the decree holder can enjoy the benefits of the decree. Though the learned counsel submits that the execution court can also examine and rectify the mistake I think it is appropriate and proper for the petitioner in the given facts of the case to move an application on the trial side itself for review of the final decree to correct the mistake. If any such application is made, the court below shall take note that the delay in moving that application is not decisive as a decree has already W.P.(C).No.22321 OF 2009 Page numbers been passed in his favour and the mistake was noticed only at the time when steps were taken for delivery of the property. If any mistake is noticed in the decree in the enquiry on the review petition needless to point out appropriate steps have to be taken to correct the decree so that the petitioner / plaintiff who is found entitled to decree is given, the benefits of that decree. Ext.P6 order passed by the execution court is no bar for the trial court in passing appropriate orders for correcting the final decree. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE vdv P.A TO JUDGE