Friday, 22 July 2016

Whether court can make correction in decree U/S 152 of CPC if mistake is on part of litigant?

Much emphasis has been laid by Mr.Pattnaik, learned
Advocate for the petitioner, on a decision of this Court in the case of
Santosh Kumar Sahoo (supra), wherein a Bench of this Court held that a
decree can be amended and corrected in exercise of power under
Sections 151 and 152 C.P.C. even if a mistake is committed by the
parties. On a bare perusal of the said judgment, it is evident that the
judgment was rendered on concession. Both parties agreed in that case
for correction of the decree. Accordingly, a direction was issued to the
learned trial court. The question does arise whether the same is a
binding precedent? The answer is empathetically no.5
8. In Municipal Corporation of Delhi Vrs. Gurnam Kaur, (1989)
1 Supreme Court Cases 101, the apex Court in paragraph-10 of the
report in no uncertain terms held that when a direction or order is made
by consent of the parties, the court does not adjudicate upon the rights
of the parties nor does it lay down any principle. Quotability as ‘law’
applies to the principle of a case, its ratio decidendi. The only thing in a
judge’s decision binding as an authority upon a subsequent judge is the
principle upon which the case was decided. Statements which were not
part of the ratio decidendi are distinguished as obiter dicta and are not
authoritative.
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.12357 of 2008
In the matter of an application under Articles 226 & 227 of the
Constitution of India.

Netrananda Dalai …. Petitioner

Versus
Ratnabati Nayak (dead) and another …. Opposite parties

PRESENT:
THE HON’BLE DR. JUSTICE A.K.RATH
Date of Judgment: 16.07.2016

 Dr.A.K.Rath, J. The sole question that arises for consideration is as to
whether the decree can be corrected by the Court under Section 152
CPC, when there is no clerical or arithmetical mistake or error arising
from any accidental slip or omission, but the mistake has been
committed by the litigating parties.
2. The petitioner as plaintiff instituted Title Suit No.30 of 1992
before the learned Civil Judge (Junior Division), Phulbani for permanent
injunction impleading the predecessors-in-interest of opposite parties 1
and 2 as defendants. In the schedule of the plaint, the suit schedule
property has been described as khata no.16, plot no.753, measuring an
area Ac.0.20 decimal of mouza-Jiringapada. The suit was decreed.
Thereafter the plaintiff levied execution case, being E.P.No.1 of 2004. The 2
executing court refused to execute the decree since khata number was
wrongly mentioned. Assailing the order of the executing court, he filed
W.P.(C) No.14601 of 2005. The said petition was withdrawn so as to file
an appropriate application in the executing court. This Court observed
that if an application under Section 152 CPC is filed, the same shall be
considered by the executing court. While the matter stood thus, he filed
an application under Section 152 CPC for correction of the decree by
inserting khata no.25, instead of 16. It is stated that khata number of
the suit land is 25, but not 16. The executing court came to hold that
wrong khata number in the plaint, judgment and decree is not due to
accidental slip or arithmetical mistake and omission by the court. It will
not be appropriate to allow the amendment of khata number in the
decree alone without amending the khata number in the plaint and
judgment. Held so, the learned trial court rejected the application.
3. Assailing the said order, Mr.Pattnaik, learned Advocate for
the petitioner submitted that the learned trial court committed an error
in not allowing the application for correction of decree. He further
submitted that the Court has inherent power to amend the decree even if
mistake has been committed by the parties. He relied on the decisions of
different High Courts in the case of Appat Krishna Poduval Vrs. Lakshmi
Nathiar and others, AIR 1950 Madras 751, Shankergouda Vrs.
Garangouda and others, AIR 1976 Karnataka 204, Rayappa Basappa
Killed Vrs. The Land Tribunal and others, AIR 1976 Karnataka 205,
Mohinder Singh and others Vrs. Teja Singh and others, AIR 1979 Punjab
and Haryana 47 and Santosh Kumar Sahoo Vrs. Radhanath Sahoo and
four others, 2013(I) OLR-363.
4. Per contra, Mr.T.Barik, learned counsel for the opposite
parties supported the impugned order. 3
5. The subject matter of dispute is no more re integra. An
identical question came up for consideration before this Court in the case
of Jayanta Kumar Rath (since dead) through L.Rs. Vrs. Pravas Kumar
Rath (since dead) through L.Rs, 2016(I)-CUT-969. This Court, on a
survey of the earlier decisions held thus:-
“8. In Papu Khan (supra), this Court held that when there is no
clerical or arithmetical mistake or error arising from any accidental
slip or omission, Section 152 CPC has no application.
9. In Niyamat Ali Molla (supra), the apex Court held that a decree
may be corrected by the court both in exercise of its power under
Section 152 CPC as also under Section 151 CPC.
10. In Bishnu Charan Das v. Dhani Biswal and another, AIR 1977
Orissa 68, this Court held that if the decree is not in conformity with
the judgment it must be allowed to be amended under Sections 152
and 151 CPC to bring it in line with the judgment and that in
exercising the power under Sections 151 and 152 CPC the Court
merely corrects the mistake of its ministerial officer by whom the
decree was drawn up. Paragraph-4 of the report is quoted hereunder:
“Section 152, CPC is based on two important
principles. The first of them is the maxim that an act
of the Court shall prejudice no party and the other
that the Courts have a duty to see that their records
are true and that they represent the correct state of
affairs. In proceedings for amendment of a decree, the
inquiry is confined only to seeing whether the decree
correctly expresses what 5 was really decided and
intended by the Court. Order 20, Rule 6 clearly
provides that the decree shall agree with the judgment.
If the decree is not in harmony with the judgment the
Court has no alternative but to rectify the mistake
which has been committed. As the power to amend is
exercised for the promotion of justice, it should be
exercised liberally so as to make the decree conform to
the judgment on which it is founded. I am fortified in
this view by an earlier decision of this Court reported
in AIR 1966 Ori 225, (Sagua Barik v. Bichinta Barik)
wherein it was held on a review of the authorities that
if the decree is not in conformity with the judgment it
must be allowed to be amended under Sections 152
and 151 to bring it in line with the judgment and that
in exercising the power under Sections 151 and 152
the Court merely corrects the mistake of its ministerial
officer by whom the decree was drawn up.”4
11. The case of the petitioners may be examined on the anvil of the
decisions cited supra. On a bare perusal of Section 152 CPC, it is
evident that clerical or arithmetical mistakes in judgments, decrees
or orders or errors arising therein from any accidental slip or
omission may at any time be corrected by the Court either on its own
motion or on the application of any of the parties. If clerical or
arithmetical mistakes in the judgments, decrees or orders or errors
arising therein from the accidental slip or omission has been
committed by the court, then the court may correct the same on its
own motion or on the application of any of the parties. It does not
comprehend the correction of any error on the part of any of the
litigating parties. The error must be on the part of the court. In an
application under Section 152 CPC, the Court cannot ascertain the
intention of the parties making the compromise and filing the
application. The said section cannot be invoked for the purpose of
explaining as to what was the intention of the parties in arriving at
the compromise. Since the parties have filed a compromise petition
admitting the contents to be correct and thereafter the court has
recorded the same, Section 152 CPC cannot be pressed into service to
correct the compromise petition and decree.” (emphasis laid)
6. In view of the authoritative pronouncement of this Court in
the case of Jayanta Kumar Rath (supra), this Court prefers to take the
same view since the same is the binding precedent. The ratio laid down
in the cases of Appat Krishna Poduval (supra), Shankergouda (supra),
Rayappa Basappa Killed (supra) and Mohinder Singh and others (supra)
cannot be said to be the binding precedent.
7. Much emphasis has been laid by Mr.Pattnaik, learned
Advocate for the petitioner, on a decision of this Court in the case of
Santosh Kumar Sahoo (supra), wherein a Bench of this Court held that a
decree can be amended and corrected in exercise of power under
Sections 151 and 152 C.P.C. even if a mistake is committed by the
parties. On a bare perusal of the said judgment, it is evident that the
judgment was rendered on concession. Both parties agreed in that case
for correction of the decree. Accordingly, a direction was issued to the
learned trial court. The question does arise whether the same is a
binding precedent? The answer is empathetically no.5
8. In Municipal Corporation of Delhi Vrs. Gurnam Kaur, (1989)
1 Supreme Court Cases 101, the apex Court in paragraph-10 of the
report in no uncertain terms held that when a direction or order is made
by consent of the parties, the court does not adjudicate upon the rights
of the parties nor does it lay down any principle. Quotability as ‘law’
applies to the principle of a case, its ratio decidendi. The only thing in a
judge’s decision binding as an authority upon a subsequent judge is the
principle upon which the case was decided. Statements which were not
part of the ratio decidendi are distinguished as obiter dicta and are not
authoritative.
9. In the result, the petition is dismissed. No costs.
 ……………………..
 Dr.A.K.Rath, J.
Orissa High Court, Cuttack
The 16th July, 2016/CRB.
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