Smt. Saida Begam Vs Smt. Fathimunnissa Alias Noorjan

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NC: 2026:KHC:29560 W.P. No.8432/2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF JUNE, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.8432/2022 (GM-CPC)

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BETWEEN:

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SMT. SAIDA BEGAM W/O LATE K.S. NISAR AHMED AGED ABOUT 57 YEARS R/AT 3RD CROSS, GOWRIPET KOLAR-563101.

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…PETITIONER

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(BY SRI. RAMAKRISHNA HEGDE, ADV.,)

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AND:

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SMT. FATHIMUNNISSA ALIAS NOORJAN W/O SYED MURTHUZA AGED ABOUT 79 YEARS R/O DODDAPET MAIN ROAD GOWRIPET, KOLAR-563101.

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GOWRIPET, KOLAR-563101. Digitally signed by RUPA V Location: HIGH (BY SRI. MOHAMMED TIPPU SULTAN, ADV.,) COURT OF KARNATAKA

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…RESPONDENT

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER ON IA U/S 151 OF CPC AND U/S 152 OF CPC DTD 22.12.2021 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC KOLAR IN O.S.NO.45/1978 AT ANNEXURE-A & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2026:KHC:29560 W.P. No.8432/2022

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated 22.12.2021 passed on IAs filed under Section 151 and Section 152 of the CPC by GPA holder of defendant No.5 in OS.No.45/1978 by the Principal Civil Judge and JMFC, Kolar (for short 'the trial Court').

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Sri.Ramakrishna Hegde, learned counsel appearing for the petitioner, submits that the suit in OS.No.45/1978 was filed for partition and separate possession of the suit schedule properties. In the said suit, the plaintiff and defendants entered into a compromise and filed a compromise petition before the trial Court. Based on such a compromise petition, a decree was drawn. It is submitted that the compromise petition specifically sought drawing of a final decree and accordingly, the trial Court drew a final decree on 27.01.1982. It is further submitted that the husband of

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the petitioner purchased the suit schedule properties from the plaintiff, defendant Nos.1, 3, 4, 8 to 11 under registered sale deeds dated 11.05.1984, 13.11.1984, 16.01.1988 and 27.06.1988. It is also submitted that thereafter the husband of the petitioner was put in possession and enjoyment of the properties and the revenue records were mutated in his name. It is contended that the husband of the petitioner died on 11.02.2016 and the revenue records came to be mutated

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in the name of the petitioner. It is further contended that the General Power of Attorney (GPA) holder of defendant No.5 in the suit surprisingly filed an application under Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking dispensation of issuance of notice to the parties in the suit and also filed another application under Section 152 of the CPC seeking correction of alleged clerical error in the judgment dated 27.01.1982. The said applications were allowed by the trial Court without issuing notice to any of the parties to the suit including the

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NC: 2026:KHC:29560 W.P. No.8432/2022

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petitioner, who is a purchaser of properties. By virtue of the impugned order, the decree was altered by correcting the decree as a preliminary decree by deleting the word final decree.

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It is also contended that the trial Court failed to consider that a similar attempt had earlier been made by defendant No.5. The trial Court has failed to appreciate the fact that an application of a similar nature filed by defendant No.5 had been rejected by the trial Court vide order dated 17.02.1983, with an observation that such relief could be sought only by filing a miscellaneous petition. It is submitted that when similar application is rejected, the trial Court ought not to have allowed the applications without hearing any of the parties more particularly petitioner herein, who is presently the owner of the certain properties in question. It is further submitted that the application under Section 152 is not maintainable as there is no clerical or arithmetical mistake in the decree as the compromise petition itself expressly

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sought drawing of the final decree. In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Ajanta LLP v. Casio Keisanki Kabushiki Kaisha d/b/a Casio Computer Co. Ltd. and Another¹ . Accordingly, he seeks to allow the petition.

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There is no representation for the respondent.

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It is noticed that the respondent has filed a statement of objections to the writ petition.

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I have heard the arguments of the petitioner, perused the writ petition papers and the statement of objections filed by the respondent.

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The material on record indicates that one Smt.Badrunnisa filed OS.No.45/1978 against Smt.Fathimunnisa and others seeking partition and separate possession of the suit schedule properties. In the said suit, the plaintiff as well as the defendants filed a

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1 2022 (1) Kar. L.R. 299 (SC)

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NC: 2026:KHC:29560 W.P. No.8432/2022

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compromise petition under Order XXIII Rule 3 of the CPC, produced as Annexure-D. The trial Court accepted the said compromise petition and in terms of the compromise petition, the suit came to be decreed. A perusal of the compromise petition reveals that the parties specifically sought drawing of a final decree. Consequently, the trial Court drew a final decree on 27.01.1982, which is produced as Annexure-E. It is to be noticed that the petitioner's husband purchased certain properties which

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are the subject matter in the suit from the plaintiff, defendant Nos.1, 3, 4, 8 to 11 vide sale deeds dated 11.05.1984, 13.11.1984, 16.01.1988 and 27.06.1988, produced as Annexures-F to J. It is specifically averred that the name of the husband of the petitioner was mutated in the revenue records pursuant to the registered sale deeds referred supra.

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When things stood thus, the GPA holder of the original defendant No.5-Smt.Fatimunnisa filed two applications before the trial Court. The first application

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NC: 2026:KHC:29560 W.P. No.8432/2022

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filed under Section 152 of CPC sought correction of the

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clerical error in the judgment and decree dated 27.01.1982, while the second application filed under Section 151 of the CPC sought dispensation of notice to the plaintiff, defendant Nos.1 to 4 and 6 to 11. The said applications came to be allowed by the trial Court under the impugned order. It is further to be noticed that defendant No.5 had earlier filed an application under Section 152 of CPC seeking to amend the decree by allotting 1/6^th share and the said application was duly considered by the trial Court and vide order dated 17.02.1983 rejected the same by observing that such an application is not maintainable and the applicant shall file miscellaneous petition.

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When things stood thus, the very same defendant through GPA holder filed an application seeking correction in the decree by deleting the word "final decree"

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and substituting it as a "preliminary decree". The trial Court allowed the application without issuing notice to the

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plaintiff and other defendants as well as the petitioner, who is a subsequent purchaser of some of the property pursuant to the decree sought to be corrected. What is required to be noticed is whether the application filed by the GPA holder of defendant No.5 is maintainable in view of the earlier rejection of a similar application and whether the correction sought is a correction of clerical error.

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In my considered view, the said issue is required to be considered by the trial Court after providing sufficient opportunity to the plaintiff and other defendants including the petitioner herein, who is subsequent purchaser of some of the properties based on the decree passed by the trial Court. Admittedly the impugned order was passed without hearing the petitioner herein, who is a purchaser of the property in possession and by virtue of the impugned order of the trial Court, the valuable right of the petitioner over the immovable property would be affected, as the sale in favour of petitioner is after the decree in question. Further a specific assertion is made

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NC: 2026:KHC:29560 W.P. No.8432/2022

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that based on such a correction, defendant No.5 and her

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GPA holder are trying to dispossess or disturb the petitioner’s peaceful possession and enjoyment of the property. In view of the preceding analysis and considering the enunciation of law laid down by the Hon'ble Supreme Court in the case of Ajanta LLP referred supra , I am of the conclusion that the writ petition deserves to be allowed and proceeds to pass the following:

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ORDER

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i. The writ petition is allowed .

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ii. The impugned orders dated 22.12.2021

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passed on IAs filed under Section 151 and

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Section 152 of the CPC by GPA holder of defendant No.5 in OS.No.45/1978 by the Principal Civil Judge and JMFC, Kolar is hereby set aside. Consequently, the applications are

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restored.

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