Smt.Gopi v. Shyamsunder Tarachand Advani, Garden View, now known as

Plaintiff and expressed that he will not act upon the said Consent Decree. It appears that the Office of the Prothonotary and Senior Master, on its own, drew up the said decree dated 22nd February 1977 and sealed the same on 24th March

The original Defendant died on 2nd June : 5 : 2001, leaving behind four heirs namely, the Plaintiff being mother, Respondent No.1 (widow), Inder Shamsunder Advani (son) and one daughter. After the death of the original Defendant, the Respondent No.1, for the first time, on 20th January 2002, sought no objection certificate from the Plaintiff for repairs and renovations of the subject property. That request was not acceded to by the Plaintiff. It is seen that the Respondent No.1 then applied for Judge’s Order on 30th April

2002. No notice was given either to the Plaintiff or any other heirs of deceased/original Defendant. The Judge’s order was placed before Justice S.A.Bobde on 30th April 2002 when following order came to be passed : "UPON READING the Affidavit of Indresh S.Advani the Applicant herein solemnly affirmed on 23rd day of April, 2002 and UPON HEARING Ms.Alka Gandhi i/b Dave & Co., Advocates for the Applicant Legal heir of the Defendant abovenamed, who states that the Consent Decree dated 22.2.1977, sealed on 24.3.1987, operate as a transfer of immovable property mentioned in the Consent Decree and accordingly stamp duty has to be paid And that no stamp duty has been paid on Consent Decree and therefore allow the Applicant to pay the stamp duty. : 6 : I Do Order that the Prothonotary & Senior Master, High court Bombay is directed to unseal the Consent Decree dated 22.2.1977 that the Prothonotary & Senior Master do hand over to the Applicant Advocate and acknowledge the Consent Decree for the purpose of payment of Stamp duty and send the Original Consent Decree to the office of Superintendent of Stamp for adjudication and ascertainment of Stamp duty. AND I DO FURTHER ORDER that the Applicant do pay the stamp duty under Section 2(g) of Bombay Stamps Act on the Consent Decree dated 22nd February 1977 AND I DO LASTLY ORDER that on the stamp duty being paid by the Applicant the Prothonotary & Senior Master do re-seal the said Decree and issue the Certified copy thereof to the Applicant. "

It is the case of the Plaintiff that the Plaintiff became aware about the above said Judge’s Order passed on 30th April 2002 for the first time in November 2004 when the Respondent No.1 disclosed that fact in the affidavit filed in some derivative proceedings between the parties. After the Plaintiff became aware about this development, the present Chamber Summons came to be filed on 18th January 2005 for the reliefs referred to earlier. In the meantime, however, on the basis of ex-parte Judge’s Order, the Respondent no.1 proceeded to pay the stamp duty on the certified copy of the decree, on the basis of which the decree was purportedly : 7 : transferred in the name of the deceased. It is the case of the Plaintiff that inspite of the above, as the Respondent No.1 was unable to proceed with the repairs and renovations of the said property without the no objection of the Plaintiff, the Respondent No.1 propounded the alleged Will dated 12th May 2001 and applied for grant of Letters of Administration. In the said proceedings, ex-parte grant was obtained without service of citation on 10th January 2003. The Plaintiff has applied for revocation of the ex-parte grant and interim relief to injunct the Respondent No.1 from acting on the said grant. That will be, however, of no relevance to the subject matter involved in the present proceedings. In the present proceedings, this Court is concerned with the core issue as to whether the Plaintiff is entitled for the order of setting aside of ex-parte Judge’s order dated 30th April 2002 and for consequential directions on the assertions made in the affidavit-in-support of the present Chamber Summons.

According to the Plaintiff, the Judge’s Order could not have been passed without giving : 8 : prior notice to the concerned persons, particularly the Plaintiff. Reliance is placed on Rule 304 of the Bombay High Court (Original Side) Rules to contend that prior notice to the interested parties is imperative and in absence of such notice, ex-parte order passed, will have to be set-aside, relegating the Respondent No.1 to pursue the Judge’s Order on its own merits in accordance with law. Relying on Rule 304, it is contended that the Judge’s Order in question has been passed by the Court and not by the Prothonotary and Senior Master under the first part of the said Rule. It is then contended that the sole reason for seeking order in terms of Judge’s Order dated 30th April 2002, pressed into service on behalf of Respondent No.2 was that the Office of the Prothonotary and Senior Master has sealed the said decree, without the same being sent to the Superintendent of Stamps for adjudication of stamp duty and which amounts to clerical error amenable to be rectified under Rule 304 of the Rules. It was, however, argued that such act of omission or commission cannot be corrected under Rule 304, as it is neither a clerical error nor in the realm of arithmetical : 9 : error or inaccuracy in the decree which alone can be corrected under Rule 304. It is then contended that it was not open to grant the Judge’s Order on 30th April 2002, as the relief prayed therein was barred by law of limitation. For, Article 137 of the Limitation Act provides for maximum three years period to take out such application assuming the same was maintainable. Reliance was placed on the Kerala decision of the Supreme Court in the case of Kerala Kerala State Electricity Board, Trivandrum vs. State Electricity Board, Trivandrum vs. State Electricity Board, Trivandrum vs.