Punjab-Haryana High Court
Smt. Pushpinder Kaur And Others vs Col. Rcs Mann And Others on 4 July, 2013
Author: K. Kannan
Bench: K. Kannan
CR No.6367 of 2011(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CR No.6367 of 2011(O&M)
Date of decision July 4, 2013
Smt. Pushpinder Kaur and others
....... Petitioners
Versus
Col. RCS Mann and others
........ Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. P. K. Gupta, Advocate
for the petitioner.
Mr. Sudhir Mittal, Advocate
for respondent No.1.
Mr. Vivek Sharma, Advocate
for respondent Nos. 2 and 3.
Mr. Aman Sharma, Advocate
for respondent No.4.
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K. Kannan, J (oral).
1. The revision is against an order of dismissal of an application filed under Section 152 CPC for rectification of judgment and decree. The decree was for specific performance on an agreement of sale dated 8.10.1996 executed by the second defendant through the power of attorney first defendant. It appears that at the time of institution of the suit on 10.3.1997 the second defendant had already died and the suit had been filed against a dead person. Consequently the plaintiff appears to have applied to implead one of his daughters as legal representative of second defendant. The suit was contested only by the first defendant who held the power of attorney and the legal representative of the second CR No.6367 of 2011(O&M) 2 defendant did not contest. The suit was decreed after a contest by the first defendant and in the operative portion of the judgment granting the relief it was stated as follows:-
" In view of my above discussion and findings on the issues above, the suit of the plaintiff is decreed with costs to the effect that he is entitled to possession as owner through specific performance of the agreement to sell dated 8.10.1996 executed by defendant no.1 as GPA of defendant no.2 regarding the suit property on deposit of the remaining amount of consideration in the court within three months of the passing of this decree failing which suit of the plaintiff would deem to be dismissed. Accordingly, defendant no.1 is directed to execute the sale deed in favour of the plaintiff regarding the suit property in terms of the agreement to sell dated 8.10.1996 after receiving the remaining amount of sale consideration of Rs.14,25,000/- from the plaintiff within a period of two months from the date of deposit of the remaining amount of consideration by the plaintiff, failing which the plaintiff shall be entitled to get the sale deed executed through the process of the court."
2. The decree which was prepared replicated the same expression as were found in the operative portion of the judgment extracted above.
3. The prayer in the suit was for specific performance of the agreement of sale directing the defendants (emphasis applied) to execute the necessary suit. The plaintiff moved an application for amendment of the judgment and decree to CR No.6367 of 2011(O&M) 3 direct the defendant to execute the sale deed instead of the reference to the first defendant as GPA for the second defendant to execute the sale deed. The first defendant who was power of attorney again contested the application and contended inter alia that only a clerical mistake should be corrected and the court was only granting a decree in the manner which the plaintiff had sought. Since the plaintiff had sought for a decree directing the power of attorney to execute the sale no exception could be taken for the decree the way it was granted. If at all, the appropriate remedy for the plaintiff would have been only to apply for review and not an application for amendment under Section 152. The Court upheld the objection and the revision is against the said order.
4. Finding that the judgment and decree have been rendered after full fledged contest by the first defendant and after impleading one of the heirs as a legal representative of the defendant who chose to remain ex-parte, I asked the counsel for the first respondent as to how he could have a objection for a proper modification to give effect to the judgment already rendered on merits. The counsel reiterates the objection already made before the Court below and contest that there are decisions of the Supreme Court which would come as far as to approve of a review of a judgment to be made and not amend the judgment and decree for what transpires as not any clerical error but an inevitable error that was result of the plaintiff's own pleadings. I have examined the judgment which was rendered and I find that the Court has gone into `the genuineness of the document, the amount which had already CR No.6367 of 2011(O&M) 4 been received by the first defendant as power of attorney which was a large sum at that time of ` 2.5 lacs and has proceeded to dispose of the case allowing for the decree in the manner sought. The first defendant literally cannot has an objection to any modification in the decree since he has entered the contest and he has attempted to protect the interest of the estate of the second defendant. Though the power of attorney will terminate on the death of principal, he has still attempted to protect the estate of the deceased at the trial. The legal representative was even a larger expression than a legal heir and he has performed even the duty of what the legal representatives impleaded of the party did not do. If the court therefore found that the agreement was enforceable and it had secured the presence of the legal representatives of the second defendant also then there was nothing inherently defective in the plaint to deny the plaintiff the relief which he was seeking for. Ultimately, if the Court had passed a decree, it could have passed decree only against the legal representative of the owner of the property namely the second defendant who has been impleaded. This is how the decree and judgment itself must be understood. It will really not make much of difference between a situation of amendment of decree which could be done to correct the arithmetical or clerical error or a review of the judgment to correct an error apparent on the face of record. There is but a little line of difference surely, for otherwise, the two distinct provisions would be otiose. I will treat this as a mere error which the court had committed in not granting a decree suitable to the situation that arose after the death of the second defendant and when the CR No.6367 of 2011(O&M) 5 legal representatives of the second defendant had been impleaded. The trial Court was misled by the fact that the principal contest was entered only by the first defendant and took him to be the person against whom the decree must the sale to be executed. He literally acted as a de facto representative though de jure legal representative Sumitra was the legal representative of the deceased and impleaded in suit. The Court ought to have therefore granted the decree against the representatives and in the light of the prayer that the suit was for specific performance, the court should have been granted a decree against all the defendants to stave of any objection later by any one of the defendants. If, it had, on the other hand, granted a decree only against the first defendant GPA it was not in consonance with the reasoning found in the entire body of the judgment which has come about. I direct that the decree must be read as enforceable against all the defendants. Taking also the objection that the correction could have been made only through a review and not an application for amendment, there is sufficient authority to support the view that mere quoting of a wrong provision of law will not take away the rights of parties. Assuming the worst scenario against the petitioner that the petitioner had adopted a wrong procedure in applying for amendment of the decree and judgment, if the appropriate provisions were to be a review the case would require to be reviewed and the amendment application would just still be read as review of the judgment already made to the above effect. The impugned order is set aside and the application for amendment is ordered as prayed for. Learned counsel appearing on CR No.6367 of 2011(O&M) 6 behalf of the second respondent states that all the legal representatives are not added and only one of the daughters has been added. The petitioner states that there was an application moved at the instance of both the legal heirs under Section 47 before the Executing Court but it was later dismissed as withdrawn. I do not think these facts are necessary for disposal of the revision petition, for, the petitioner is prepared to obtain the decree in the manner in which he has ought viz., against the parties who are already impleaded in suit. He will secure such right as it is legally possible for him to enforce.
5. The revision petition is allowed on the above terms. No costs.
(K. KANNAN) JUDGE July 4, 2013 archana