Calcutta High Court (Appellete Side)
Swapan Kumar Manna & Ors vs Smt. Lakshmi Dey on 9 July, 2014
Author: Harish Tandon
Bench: Harish Tandon
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23 09.07.14 C.O. 2013 of 2014
akd
Swapan Kumar Manna & Ors.
Vs.
Smt. Lakshmi Dey.
--------
Ms. Sabita Mukherjee (Roy Choudhury).
... for the petitioners.
This revisional application is directed against the order no. 13 dated 23rd April, 2014 passed by the learned Chief Judge, Small Causes Court at Calcutta in Ejectment Suit No. 23 of 2013, by which an application under Section 152 of the Code of Civil Procedure for correction of the decree is rejected.
The decree-holders/petitioners obtained a decree for eviction against the defendant/opposite party. All the decree-holders were alive at the time of passing the judgement, as the decree would follow the same. Before the decree to be put into execution, one of the decree-holders died. Under misconception of law, an application under Section 152 of the Code of Civil Procedure came to be filed at the instance of the surviving decree-holders. The Trial Court rejected the said application as there is neither a clerical nor a ministerial mistake committed in recording the judgement and preparing the decree.
According to the petitioners, unless the decree is corrected and the names of the heirs of the deceased decree-holder are substituted, there would be a difficulty in executing the said decree. The 2 attention of the learned advocate was not drawn to the provisions of Order XXI Rule 15 of the Code of Civil Procedure, which reads thus :
(1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application."
The said provision takes care of the so-called difficulty, which has arisen in the mind of the learned advocate in executing the said decree and, therefore, this Court does not find that there could be any ambiguity in the order passed by the Executing Court. The impugned order is thus not interfered with.
The revisional application is thus dismissed. There will be no order as to costs.
(HARISH TANDON, J.) 3