The decree was put in execution and came to be satisfied by executing sale deed through the Court. In the execution application, due to an inadvertent error on part of the original plaintiffs, the gut numbers came to be stated as Gut No.141 instead of Gut No.111. As far as survey numbers is concerned, the survey numbers were correctly referred to and the only error was in stating the gut numbers, as a result of which in the sale deed which was executed by the Court, the suit property was mentioned as Gut No.141. After the execution of the sale deed the legal heirs of the original plaintiff for the first time in the year 1998, after the execution of the sale deed in the year 1985, noticed this error when an application was moved to mutate their names in the revenue records.
This Court further held that it would lead to a travesty of justice as the petitioners therein who had a decree in their favour passed as long back as in the year 1974 and also a sale certificate of the year 1980 would be deprived of the possession of the property on the ground of mere technicalities.
13. Considering the decision of this Court and decision in
the case of Hansabai Shripati Bhosale (supra), which is
squarely applicable to the facts of the case, the order of the
Executing Court rejecting the application is clearly unsustainable.
It needs to be noted that the powers exercised under Section 151
and 152 of the Code of Civil Procedure are for the purpose of
rectifying the errors and are meant to advance real and
substantial justice to the parties. In my opinion, in a case of
correction in the gut numbers, hyper technical view has been
adopted by the Executing Court. The reasons for the delay is
clearly set out in the application and is delay is sufficiently
explained. The provisions of Section 5 of the Limitation Act are
elastic enough to apply the law in meaningful manner to subserve the ends of justice.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4359 OF 2021
DAGADU SHIVAJI LODHE Vs BHAURAO FAKIRA DONGRE
CORAM : SHARMILA U. DESHMUKH, J.
DATED : 17th FEBRUARY, 2023.
PER COURT:-
1. Heard.
2. The challenge in the petition is to the order dated
10.06.2020 passed by the 2nd Joint Civil Judge, Junior Division in
Miscellaneous Civil Application No.05/2009, whereby the
application filed for correction of sale deed executed pursuant to
the decree came to be rejected on the ground of limitation.
3. This is a peculiar case in which in spite of decree
being passed in their favour in the year 1979, the decree holders
are unable to enjoy the fruits of their decree due to an inadvertent
mistake caused in filing the execution application.
4. The original plaintiff had instituted suit being RCS
No.113/1975 for redemption of mortgage by conditional sale,
which was decreed on 05.05.1979. The decree was put in
execution and came to be satisfied by executing sale deed through
the Court. In the execution application, due to an inadvertent
error on part of the original plaintiffs, the gut numbers came to
be stated as Gut No.141 instead of Gut No.111. As far as survey
numbers is concerned, the survey numbers were correctly referred
to and the only error was in stating the gut numbers, as a result
of which in the sale deed which was executed by the Court, the
suit property was mentioned as Gut No.141. After the execution
of the sale deed the legal heirs of the original plaintiff for the first
time in the year 1998, after the execution of the sale deed in the
year 1985, noticed this error when an application was moved to
mutate their names in the revenue records.
5. In the year 1998, a Miscellaneous Civil Application filed
being No.6/1998 under Section 152 of the Code of Civil Procedure
for correction of the gut number in the executed sale deed. For
the period from 1998 to 2006 the application under Section 152
remained pending and on 25.08.2006 the said application was
withdrawn with liberty to file fresh application. Pursuant to the
liberty granted, Miscellaneous Civil Application No.05/2009 came
to be filed under Section 151 of the Code of Civil Procedure by
which a direction was sought to the Sub Registrar for correction of
the Gut No.141 to Gut No.111 in the sale deed executed in the
year 1985. There was an opposition to the said application by the
legal heirs of the judgment debtors. This application came to be
rejected by the Executing Court on 08.08.2012, which was subject
matter of writ petition before this Court being Writ Petition
No.46/2015. By order dated 11.08.2014, after discussing the case
laws on the subject, this Court quashed and set aside the order
dated 08.08.2012 and restored the Miscellaneous Civil Application
to the file of the Joint Civil Judge while granting liberty to the
petitioners to make an application for carrying out appropriate
correction in the prayer Clause of the said application.
6. Miscellaneous Civil Application has once again been
rejected by the Executing Court.
7. Heard the learned counsel appearing for the
petitioners. Although, respondents have been served, no
appearance has been caused on behalf of the respondents and
considering the facts of the case, the petition has been taken up
for hearing.
8. Learned counsel for the petitioners has taken this
Court through various proceedings which have been filed since
the year 1979. He would further submit that it is clear from the
order of this Court dated 11.08.2014 passed in Writ Petition
No.46/2013 that there is no necessity of filing second suit for
carrying out the correction of the decree and the only remedy
available is under the provision of Sections 151 and 152 of the
Code of Civil Procedure.
9. The Executing Court while deciding Miscellaneous
Civil Application No.05/2009 had framed two issues, which read
as under:
Sr.
No.
Points Findings
1 Whether mistake caused in mentioning the
Survey Number and Gat Number in the sale deed
executed by the Court on dated 29.11.1985 can be
rectified without filing separate suit for
rectification of sale deed?
Yes
2 Whether the application is in limitation? No
3 What Order? Application is
rejected
10. As far as findings on the issue no.1 is concerned, the
Executing Court has held that the mistake caused in mentioning
survey numbers and gat numbers in the sale deed can be rectified
without filing a separate suit. However, the Executing Court has
answered the issue no.2 of limitation in the negative. It was held
that the Miscellaneous Civil Application was filed after the gap of
13 years from the date of execution of the sale deed by the Court
and the application being covered by Article 137 of the Limitation
Act ought to have been filed within a period of three years from
the date of knowledge or when the right to apply accrues. The
Executing Court further held that there is no detailed application
stating the date of knowledge and explaining the delay of near
about 13 years in filing Miscellaneous Civil Application
No.6/1998. It was held that the application is beyond limitation
and has recorded a negative finding on point no.2.
11. The entire history of the litigation was before the
Executing Court, which has dealt with the application previously
and this Court had quashed and set aside the earlier order of
rejection. The facts which are noted in the impugned order
passed in the Civil Application itself makes it clear the manner in
which and the reasons for which there was delay in filing of the
application. Learned Trial Court without appreciating that due to
an inadvertent error which has been caused not only by the decree
holder in filing the execution application in as much as although
the survey numbers were mentioned correctly the gut numbers
came to be mentioned incorrectly and the Executing Court by
issuing direction for execution of the sale deed have also
mentioned incorrect survey number as such, it cannot be said that
there was error only on the part of the decree holder and not on
the part of the Executing Court. Such being a case it was
expected that the Executing Court would rectify the errors,
especially when there is no challenge as far as the facts of the case
in concerned. The applicant, who has obtained decree in his
favour in the year 1979 has still to benefit from the fruits of his
decree due to an inadvertent error and as such, the Court was not
powerless while exercising the power under Section 151 and 152
of the Code of Civil Procedure to issue necessary direction for
correction in the sale deed. Learned counsel for the petitioners
has relied upon the decisions of this Court in case of Hansabai
Shripati Bhosale Vs. Parubai Gopal Bhosale since deceased
through her legal heirs Tanaji Gopal Bhosale and Others,
reported in 2009 (5) Mh.L.J. 500 and Ratnakar Bank Ltd.,
Kolhapur Vs. Usha Rajaram Nimbalkar, reported in 2013 (5)
Mh.L.J. 524.
12. In the case of Ratnakar Bank Ltd., Kolhapur
(supra) this Court after considering the various provisions have
held that it is not an application under Order VI Rule 17 of the
Code of Civil Procedure as regards the amendment of the
pleadings, but inherent powers under Section 151 and powers to
permit an amendment under Section 153 of the Code of Civil
Procedure, which is applicable. This Court further held that it
would lead to a travesty of justice as the petitioners therein who
had a decree in their favour passed as long back as in the year
1974 and also a sale certificate of the year 1980 would be deprived of the possession of the property on the ground of mere
technicalities.
13. Considering the decision of this Court and decision in
the case of Hansabai Shripati Bhosale (supra), which is
squarely applicable to the facts of the case, the order of the
Executing Court rejecting the application is clearly unsustainable.
It needs to be noted that the powers exercised under Section 151
and 152 of the Code of Civil Procedure are for the purpose of
rectifying the errors and are meant to advance real and
substantial justice to the parties. In my opinion, in a case of
correction in the gut numbers, hyper technical view has been
adopted by the Executing Court. The reasons for the delay is
clearly set out in the application and is delay is sufficiently
explained. The provisions of Section 5 of the Limitation Act are
elastic enough to apply the law in meaningful manner to subserve
the ends of justice.
14. In the light of the above, the Petition succeeds. The
impugned order dated 10.06.2020 is hereby quashed and set aside
and Miscellaneous Civil Application No.05/2009 is allowed.
(SHARMILA U. DESHMUKH)
JUDGE
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