KUSUM KUMARI Vs. KRISHAN KUMAR

JUDGEMENT

(1.) This petition under Article 227 of the Constitution has been preferred by the petitioner, who was the plaintiff before the learned trial Court, against the order passed by the learned Civil Judge (Senior Division), Court No. 1, Mandi dismissing her application under Sections 151 and 152 of the Code of Civil Procedure (hereinafter referred to as CPC) for correction of purported error in the decree. It is undisputed before me that the plaintiff instituted a Civil Suit No. 140 of 1999 which was decreed on 28.9.2001 in favour of the petitioner. It is also not disputed that appeal preferred against this decree by the respondents/defendants was dismissed after contest. RSA No. 491 of 2003 was preferred by the defendants against this judgment and decree of the learned two Courts below which appeal was dismissed in limine on 5th January, 2004.

(2.) The learned trial Court did not consider the application under Section 152 of the CPC on merits but disposed of the application holding that it was not maintainable since the mandate of Section 153A is that on the basis of doctrine of merger the decree can be amended by the Appellate Court only since it has been contested on merits in the appeal before that Court. In M/s. Gojer Bros. (Pvt.) Ltd. v. Shri Rattan Lal Singh, 1974 2 SCC 453, the Court holds:

(3.) In Maldar Mahaboob Sab and others v. Allabakash, 2004 AIR(AP) 193 the High Court of Andhra Pradesh holds: