- (1.) The present revision petition has been filed by the petitioner-plaintiff under Section 115 of CPC, challenging the order dated 02.12.2004 passed by the Additional District Judge No.1, Alwar (hereinafter referred to as "the trial court") in review case No.1/2003, whereby the trial court has allowed the application filed by the respondent-applicant for transposing the respondent No.1 and the respondent Nos.5 to 7 as the party-plaintiffs, and treating the suit as decreed in their favour also.
(2.) The learned counsel Mr. R.K. Goyal appearing for the petitioner has vehemently submitted that after passing of the decree, the trial court should not have permitted the respondent No.1-applicant and other respondent Nos.5 to 7 to be transposed as plaintiff in the suit. Taking the Court to the provisions contained in Section 152 of CPC, the learned counsel submitted that the trial court has acted without jurisdiction in amending the decree and treating the suit as decreed in favour of the respondent No.1-applicant, and the respondent Nos.5 to 7. However, the learned senior counsel Mr. R.K. Mathur for the respondent Nos.1 & 5 to 7, submitted that the respondent No.1-applicant being the daughter of Prabhu Charan Isai and the respondent Nos.5 to 7 being the sons of Prabhu Charan Isai, and brothers of the petitioner-plaintiff, all were entitled to be transposed as the plaintiffs in the suit. According to him, the impugned order passed by the trial court being just and proper, this Court should not interfere with the same.
(3.) In the instant case, it appears that the petitioner-plaintiff had filed the suit seeking specific performance of the agreement in question executed by the respondent Nos.2, 3 & 4-defendant Nos.1, 2 & 3. In the said suit, the present respondent No.1, and the respondent Nos.5 to 7 were shown as the defendant Nos.4 to 7. It further appears that the said suit was decreed ex-parte against the respondent Nos.2, 3 & 4 vide the judgment & decree dated 12.03.2003. The present respondent No.1, who happened to be the sister of the petitioner, filed an application for transposing herself as well as the respondent Nos.5 to 7 as the plaintiffs in the suit under Section 152 of CPC, which has been allowed by the trial court. Now, as per Section 152 of CPC, only the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from the accidental slip or omission could be corrected by the court either of its own motion or on the application of any of the parties. In the instant case, the respondent Nos.1 & 5 to 7 never bothered themselves to be transposed as the plaintiffs, till the suit was decreed in favour of the petitioner-plaintiff. It was only after the suit was decreed, such an application under Section 152 of CPC was filed. In the opinion of the Court, there being no clerical or arithmetical mistakes nor any accidental slip or omission in the decree in question, the trial court should not have allowed the application of the respondent No.1, permitting her and the respondent Nos.5 to 7 to be transposed as the plaintiffs in the suit, and treating the suit as decreed in their favour also. In that view of the matter, the impugned order passed by the trial court being without jurisdiction, illegal and perverse, deserves to be set-aside.;