- (1.) This application under Article 227 of the Constitution of India is directed against order dated 7th January, 2011 passed by learned District Judge at Hooghly, in Civil Revision No.95 of 2009. By the order impugned learned District Judge rejected the revisional application filed by the present petitioner defendant challenging order dated 4th of May, 2009 passed by learned Additional Court of Civil Judge (Junior Division) Chandannagar in Title Suit No.63 of 1987 whereby learned trial court allowed the petition dated 30th April, 2008 filed by the O. P. plaintiffs under Section 151 read with Section 152 of the Code of Civil Procedure for correction of the decree passed in connection with judgment dated 30.07.1997 in Title Suit No.63 of 1987.
(2.) The background fact of the case may be summarized as follows:- 01. The present O. P. plaintiffs filed said Title Suit No.63 of 1987 against present petitioner defendant praying for declaration of their right, title and interest over 'Ka-1' schedule property alleging that the petitioner defendant was threatening them dispossessing from said property being a part and parcel of plaintiff's land described in 'Ka' schedule property and also for permanent injunction and other consequential reliefs. 02. During pendency of the suit O. P. plaintiffs were illegally dispossessed from said 'Ka-1' schedule property by the petitioner defendant. 03. After contested hearing learned trial court decreed the suit by judgment dated 30.07.1997 declaring plaintiffs' right, title and interest in 'ka-1 schedule property, restraining the defendant permanently from constructing any pillar thereupon, directing the defendant to demolish the pillar, if any, constructed thereupon during pendency of the suit and to deliver possession of the 'Ka-1' schedule land to the plaintiffs in default plaintiffs will be at liberty to execute the decree through court, subject to payment of advalorum court fees of Rs.10,000/- within 15 days from said date. 04. On 14.08.1997 the O. P. plaintiffs deposited in court the advalorum court fees of Rs.750/- for value of 'Ka-1' schedule property being Rs.10,000/-. 05. The decree was drawn on 8th of August, 1997 without waiting for the period of 15 days from 30th July, 1997, and without incorporating the relief of delivery of possession of suit property as granted by the trial court in the judgment dated 30. 07.1997. 06. The petitioner defendant preferred an appeal being Title Appeal No.255 of 1997 against said judgement which ended in dismissal by judgment dated 24th of January, 2005 passed by learned Additional District Judge, Fast Track Court, First Court, Chandannagar. 07. The petitioner defendant moved this court against said order of dismissal of Title Appeal No.255 of 1997 being S. A. No.131 of 2007 which was rejected by this Court vide order dated 18th of September, 2006 under Order 41 Rule 11 of the Code of Civil Procedure. 08. The O. P. plaintiffs field an execution case being Title Execution Case No.7 of 2005 for execution of the decree of recovery of possession as petitioner defendant did not deliver possession in terms of the trial court judgment dated 30.07.1997 which was confirmed upto the level of this Court. 09. However, the execution court disposed of said execution case on full satisfaction. 10. The O. P. plaintiffs filed a revisional application being Civil Revision 21 of 2007 in the Revisional Court against said order of disposal of the title execution case on full satisfaction in spite of non-delivery of 'Ka-1' schedule property by the petitioner defendant in favour of the O. P. plaintiffs. 11. During hearing before the revisional court it came out that though the O. P. plaintiffs deposited the advalorum court fees in the trial court within time but in spite of that it was not noted in the decree that "defendant is directed to deliver possession of suit land i.e., ('Ka-1' schedule property) to the plaintiffs in default plaintiffs will be at liberty to execute the order through court" though the same was a part of the ordering portion of the judgment dated 30.07.1997. 12. However, revisional court did not take note of said apparent omission in the decree and disposed of the revisional application. 13. The O. P. petitioners thereafter filed one application dated 30.04.2008 under Section 152 read with Section 151 of the Code of Civil Procedure for correction of the decree of the trial court drawn up in connection with judgment dated 30.07.1997 of Title Suit No.63 of 1987. 14. After contested hearing learned trial court allowed said application and corrected the decree vide order dated 4th of May, 2009. Being aggrieved with said order of correction dated 4th of May, 2009 the petitioner defendant filed said revisional application being civil revision No.95 of 2009 in the court of learned District Judge, Hooghly. 15. By the order impugned dated 7th January, 2011 learned District Judge, Hooghly dismissed said revisional application.
(3.) Mr. Asish Bagchi appearing for the petitioner defendant challenged the impugned order dated 07.01.2011 of learned District Judge, Hooghly affirming the order of correction of decree passed by learned trial court on 4th of May, 2009 on the following grounds. 01. The judgment as well as the decree as initially drawn were confirmed upto the level of this court and hence learned trial court had no authority to pass any order of correction of said decree on the alleged ground of clerical mistake under Section 151 read with Section 152 of the Code of Civil Procedure. 02. The execution case being Title Execution Case No.7 of 2005 was filed and already disposed of. 03. As the title execution case was already disposed of, no execution case was pending on the date of filing of said application for correction on 30.04.2008. 04. After disposal of the execution case on satisfaction the court becomes functious officio as the decree has already been satisfied. Once a decree is already satisfied there is no scope of reopening of that matter in the name of correction of clerical errors etc. in the decree. 05. Reference was made to (A. Palanivel Chettiar vs. R. Elumalai, 1985 AIR(Mad) 303). 06. O. P. plaintiffs can at best claim for refund of said court fees of Rs.750/- deposited by them.;