Advocates appeared :
C.A. Joshi, for petitioner.
None for respondent.
PANGARKAR C.L., J.: - Rule. Rule is made returnable forthwith. Heard finally since notice of final disposal is served on the respondent.
2. The petitioner had instituted Civil Suit Bearing No. 63 of 1997 for partition and a separate possession of the property mentioned in the plaint. The learned Judge of the trial Court had dismissed the suit. The plaintiff, therefore, preferred an appeal against the said judgment and decree. The Appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court. He found that the plaintiff has 22/70th share in the suit property. However, the learned Judge while delivering the judgment passed final order to the following effect.
Reg. Civil Suit No. 63/1997 is decreed with costs as under :-
Plaintiff Ajabrao be put in possession of suit properties excluding lands purchased by defendants Nos. 11 to 13 from defendant No. 5 out of suit land block Nos. 44 and 46 after partition.
Collector, Washim is directed to effect partition of suit agricultural lands as per provisions of section 54 of C.P.C. partition of suit house property and suit open site be done by appointing Court commissioner.
3. The plaintiff put said decree to execution that is he applied for sending the said decree for effecting the partition to the Collector. Accordingly, decree was sent to the Collector for effecting the partition. In the meanwhile, the respondent moved an application for calling back the precept on the ground that the final order does not disclose as to which of the property is required to be partitioned and what is the share. The said objection was upheld by the Court by the order dated 11/8/2006 and the proceedings were stayed.
4. The petitioner/plaintiff, therefore, moved an application for correction of the decree. The said application was rejected by the learned Judge on the ground that the non-mentioning of the share of the plaintiff is not a clerical or arithmetical mistake and therefore, cannot be corrected under section 152 of the Civil Procedure Code. Against this order, a review was preferred. That was also rejected. Feeling aggrieved by all these three orders, this writ petition has been preferred.
5. I am taken through the judgment passed by the Appellate Court. The learned Judge of the Appellate Court has made following observations in paragraph No. 17 of the judgment.
17. In view of the above discussion, I find that plaintiff has proved that deceased Renukabai was having 11/70 share in the suit properties and she bequeathed her undivided share and interest in the suit properties in favour of present plaintiff by suit will deed Ex. 160. Therefore there is no hesitation to find that present plaintiff Ajabrao is entitled to claim 22/70 share in the suit properties by way of partition. Accordingly, I answer point Nos. 1, 2 and 5 in affirmative. At the same time, I find that defendant Nos. 5 and 10 failed to prove that suit is not maintainable as all the joint family properties are not included in the suit and defendant No. 5 and 10 have also failed to prove that suit will deed executed by deceased Kisanrao in favour of defendant No. 5 Dnyaneshwar is legal and valid. Accordingly I answer point Nos. 3 and 4 in negative.
6. It is, therefore, obvious that the learned Judge as a fact has found that the plaintiff has 22/70 share in the suit properties. In fact, therefore, the learned Judge has given very clear finding as to the share of the plaintiff as well as the property in which the plaintiff has a share. Order 20 Rule 6 of the Code of Civil Procedure Code says that the decree must agree with the judgment. Therefore, the learned Judge should have specifically mentioned in the final order as to what is the share of the plaintiff and in which property he has a share. It is obvious, therefore, that the decree does not agree with the judgment. In the circumstances, it was absolutely necessary to have corrected the final order passed by the learned Judge in the said civil appeal. The learned Judge of the first Appellate Court was not proper in rejecting the application for review on the count that it was not a clerical or arithmetical mistake. When the law says that the decree must agree with the judgment, it was the duty of the leaned Judge to have seen that the decree is in consonance with the finding recorded by him. In the circumstances, the learned Judge certainly erred in rejecting the application under section 152 of C.P.C. That order, therefore, needs to be set aside and the writ petition must be allowed. It is directed that the final order passed in Reg. Civll Appeal No. 259 of 2001 decided by the Additional District Judge Washim be amended to the following effect.
It is held and declared that the plaintiff/appellant has 22/70 share in the suit properties. The learned Additional District Judge, Washim is now directed to correct the judgment to that effect and thereafter certified copy be issued. Decree be also accordingly amended. After the decree is amended, the said decree be sent to the Collector for effecting partition. Therefore, the order dated 11/8/2006 is set aside and the stay stands vacated. The Tahsildar is directed to take necessary steps further for effecting the partition.
In the circumstances, the order staying the partition proceeding is also set aside. The writ petition is allowed. Rule made absolute.
Petition allowed.
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