Saturday 25 March 2023

Can the court permit the correction of the sale deed executed by it in the execution of the decree after 38 Yrs?

 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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