IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 6940 of 2008(A) ------------------------- AGAINST THE ORDER DATED 23/11/2007 IN IA 2542/07 IN OS.521/2005 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER(S): --------------- RAMACHANDRAN, AIKKARA VEEDU, CHACKUVARACKAL MURI, CHACKUVARACKAL VILLAGE, KOTTARAKKARA. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): --------------- 1. P.CHELLAMMA, BEENA BHAVAN, CHACKUVARACKAL MURI, CHACKUVARACKAL VILLAGE, KOTTARAKKARA. 2. BEENA, BEENA BHAVAN, CHACKUVARACKAL MURI, CHACKUVARACKAL VILLAGE, KOTTARAKKARA. 3. PUSHPANGATHAN, BEENA BHAVAN, CHACKUVARACKAL MURI, CHACKUVARACKAL VILLAGE, KOTTARAKKARA. ADV. SRI.T.K.MARTHANDAN UNNITHAN FOR R1TO3 SRI.M.JAYAKUMAR FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPPENDIX PETITIONER'S EXHIBITS:- P1: True copy of the common judgment passed in O.S.No.536/2005 and O.S.No.521/2005 dated 6-11-2007. P2: True copy of the affidavit and petition filed by the respondents dated 7-11- 2007. P3: True copy of the counter affidavit filed by the petitioner on 23-11-2007. P4; True copy of the order dated 23-11-2007 in I.A.No.2542/2007 in O.S.No.521/2005 passed by the Munsiff's Court,. Kottarakkara. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 6940 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 7th October, 2009 JUDGMENT Petitioner is the plaintiff in O.S.No.521 of 2005 on the file of the Munsiff’s Court, Kottarakkara. Respondents are the defendants in the suit. The petitioner filed the suit praying for a decree of permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule properties and committing any act of waste therein. The 1st respondent/1st defendant filed another suit O.S.No.536 of 2005 before the same court for a mandatory injunction and declaration of easement right over the pathway through the plaint schedule properties. Both the suits were heard together by the court below and O.S.No.521 of 2005 filed by the petitioner/plaintiff was decreed and O.S.No.536 of 2005 filed by the 1st respondent/1st defendant was dismissed by a common judgment Ext.P1 dated November 6, 2007. 2. On November 7, 2007 the respondents herein filed an application E.A.No.2542 of 2007 under sections 151 and 152 of the Code of Civil Procedure praying for clarification regarding the pathway mentioned in the judgment and decree passed by the court below. Ext.P2 is the copy of the affidavit and petition filed by the respondents. W.P.C.No.6940/08 2 The petitioner filed a counter affidavit in the said application. The court below vide Ext.P4 order dated November 23, 2007 allowed the application and made a clarification to the effect that the parties shall not obstruct the pathway having width of two feet through north western part of the plaint B schedule properties in O.S. No.521 of 2005. Therefore, the petitioner has approached this Court for setting aside Ext.P4 order and dismissing Ext.P2 application. 3. Heard the learned counsel appearing on both sides. 4. The following point arises for consideration:- Whether the order Ext.P4 dated November 23, 2007 in I.A.No.2542 of 2007 in O.S.No.521 of 2005 can be sustained? 5. Exercise of power under sections 151 and 152 of the Code of Civil Procedure is clearly laid down by the Apex Court in Bijay Kumar Saraigu V. State of Jharkhand (AIR 2005 SC 2435). It has been held by the Apex Court in the above decision that sections 151 and 152 of the Code of Civil Procedure can be invoked for the limited purpose of correcting clerical errors or arithmetical mistakes in judgment. Admittedly, there is no clerical error or arithmetical mistakes in the impugned order. Hence, in my view, such an order cannot be passed by invoking the power under section 151 of the Code of Civil Procedure. It is seen from Ext.P1 judgment dated November 6, 2007 in W.P.C.No.6940/08 3 O.S.No.521 of 2005 that the said suit was decreed on the following terms:- “The defendants and their men are restrained from trespassing upon any portion of the plaint schedule property and constructing a new pathway through it. But it is made clear that in the light of this injunction the plaintiff shall not obstruct the user of the pathway by the defendants through the eastern side of her property.” By passing the impugned order the court below has actually varied the decree passed by it in O.S.No.521 of 2005. If the impugned order passed by the trial court is given effect to, it will go against the decree in O.S.No.521 of 2005. Therefore, in my view, the court below has exceeded its power in passing the impugned order under sections 151 and 152 of the Code of Civil Procedure, which is clearly illegal and is liable to be set aside. 6. In the result, the writ petition is allowed and the impugned order Ext.P4 is set aside and E.A.No.2542 of 2007 of the lower court is dismissed. P.Q. BARKATH ALI, JUDGE mn