Tuesday, 15 November 2016

Whether court can amend judgments, decrees or orders if mistake is arising out accidental slip or omission of parties?

    I am of the view that there is no reason to

restrict the scope of Section 152 of the Code of CPC to

`accidental slip or omission' of the Court and its

ministerial staff alone. It would be relevant to extract

Section 152 of the CPC:

              "152. Amendment of judgments, decrees or orders:-

       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 of its own motion or on

       the application of any of the parties."

There is nothing to indicate that the applicability of

the Section is confined to cases of slip or omission by

Court.      It     definitely       takes      within    its    compass     the

`accidental slip or omission' of the parties also.

Essentially the question would be whether it was an

instance of `accidental slip or omission'. When the

Court      is    satisfied       that     the    mistake     or    error    was

accidental, powers vested in the Court under Section 152

of the CPC needs to be invoked to correct mistakes in



the decree, especially in a case like the present one,

where parties to the suit do not dispute the fact that

the particulars sought to be corrected, is a mistake. It

would be highly inequitable in such a case, to drive the

parties to a separate litigation seeking the relief of

rectification of the instrument itself. A mistake made

by the parties in a deed upon which the suit is founded

and carried forward into the judgment, decree or order

might      be    or   might not  be    an "accidental slip or

omission". In cases where it is clear that the case is

one of "accidental slip or omission", it is the duty of

the court to correct the decree in tune with the actual

intend of the Court and the parties. It is not necessary

to drive the parties to a separate litigation for

rectification of the deed. Giving such an interpretation

to Section 152 of the CPC would only advance the cause

of justice. Even assuming that Section 152 of the CPC


does not apply, still it could be corrected in exercise

of the inherent power vested under Section 151 of the

CPC. In such matters Courts should not be tied up by the

shackles of technicalities but must strive to do justice

to the parties. In adopting the above approach, I am

fortified by the judgment of the Apex Court in Niyamat

Ali Molla V.Sonargon Housing Cooperative Society and

others (2007 (13) SCC 421).

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

         MR. JUSTICE SATHISH NINAN

    17TH DAY OF OCTOBER 2016/

                 OP(C).NO. 1268 OF 2015

       CHANDRAN 

V
           AMRUTHAVALLY,


    The Original Petition is filed challenging Exht.P9

order dated 22.12.2014 in I.A. No.2218 of 2014 in O.S.

No.1390 of 2012 of the Munsiff's Court, Kodungallur.

The application, I.A. 2218 of 2014, was one filed under

Section 152 of the Code of Civil Procedure, seeking

amendment of the decree.       The said application was

dismissed as per the impugned order, which is under

challenge by the first plaintiff in the suit.

    2. The suit, O.S. No.1390 of 2012 is one for

partition.  On  18.03.2013    a  preliminary   decree for

partition was passed allotting 1/6 share each out of the

plaint schedule property to plaintiffs 1 to 5 together,

to 6th plaintiff, to 7th plaintiff, to defendants 1 to 4

together, to defendants 5 to 8 together and also to

defendants 9 to 11 together.   The preliminary decree has

become final. Thereafter an application for passing



final decree in the suit was filed as I.A. No.1044 of

2013. In the final decree proceedings a Commissioner was

deputed to identify and measure out the plaint schedule

property with the assistance of a Surveyor, to enable

passing of a final decree in terms of the preliminary

decree. The Commissioner filed an interim report, marked

as Ext.P4 dated 06.06.2014 to the effect that there is

mistake in the survey number of the property.

       3.     The plaint schedule in O.S. No.1390 of 2012 is

described as 5 cents of property in Sy.No.641/1,2,3.

The claim was that the predecessor-in-interest of the

parties,        Krishnankutty,  had   obtained 10 cents   of

property including the 5 cents referred to above on the

basis of Ext.P2 Patta. According to the petitioner,

during the lifetime of Krishnankutty, he himself had

alienated 5 cents out of the said 10 cents. On his

demise, partition is sought as per the instant suit


between the legal heirs of Krishnankutty with regard to

the remaining 5 cents of property.

       4.     In     Ext.P2  Patta,    issued   in  favour   of

Krishnankutty          the   predecessor-in-interest   of   the

parties, the property is described as 10 cents in

Sy.No.641/1,2,3. The said description is carried on into

the     plaint       and  into  the    preliminary  decree  for

partition. In the suit, there was no objection for any

of the parties regarding the identity of the property

sought to be partitioned.

       5.     On the filing of Ext.P4 interim report by the

Commissioner stating that there is mistake in survey

number       of    the   property,   the  plaintiffs  conducted

enquiries         and   the  Village   Officer   issued  Ext.P5

certificate to the effect that though in Ext.P2 Patta

issued in favour of Krishnankutty the predecessor-in-

interest of the parties, the property was described as



10 cents in Sy.No.641/1,2,3, the correct survey number

of the property is 644/5. The said certificate was

produced before the court by the petitioner along with

the    other       plaintiffs accompanied  by  an  application

numbered as I.A. No.2218 of 2014 under Section 152 of

the CPC seeking correction of survey number of the

property in the decree. The court below, as per the

impugned order Ext.P9, dismissed the said application

holding that, without making any corresponding amendment

in the plaint as well as in the order in O.A. No.193 of

1977 wherein Ext.P2 Patta was issued, the decree cannot

be amended.

       6.     It is not in dispute that the property sought

to be partitioned in O.S.No.1390 of 2012 belonged to

Krishnankutty,         the   predecessor-in-interest  of  the

parties.        It is also not in dispute that property was

obtained by the said Krishnankutty as per Ext.P2 Patta.


There is no dispute between the parties regarding the

identity of the property sought to be partitioned. In

the    final       decree proceedings, the Commissioner  who

inspected the property found that there is a mistake in

the survey number of the property. The said mistake was

carried forward and copied from Ext.P2 Patta into the

plaint and into the preliminary decree passed in the

suit. The petitioner on coming to know about the mistake

regarding the survey number and on ascertaining the

correct survey number relating to the property, sought

for correction of the same in the decree, which was

refused as per the impugned order.

       7.     The Learned counsel for the petitioner contends

that the approach adopted by the court below is illegal.

It is not necessary for the petitioner to have the Patta

and the pleadings amended in order to have the mistake

corrected. He has relied on the decision of this Court


reported in Sarojini v. Narayani (2008 [1] KLT 516) to

contend that the conclusion of the court below that

unless the description regarding survey number as given

in the plaint and Ext.P2 Patta is corrected there cannot

be a correction in the decree, is not correct.        He

invited the attention of this Court to paragraph 3 of

the said judgment wherein a portion of the judgment in

Satyanarayana V. Purnayya (AIR 1931 Mad. 260) has been

extracted, wherein it has been observed that there is

nothing which prevents the court from doing justice in

appropriate cases where such mistakes arose by reason of

copying an erroneous document into the plaint. It was

further held that a suit for rectification of the

instrument and decree is not the only remedy. The

judgment in Sarojini v. Narayani (supra) dealt with the

question as to when once a decree has been satisfied on

execution, whether a petition for correction of the



decree under Section 152 is maintainable.

       8.     In Subramania Iyer v. Joseph George (1959 KLT

165) it was held that a decree could be corrected even

in a case where the error or mistake occurred even

anterior to the suit, namely in the instrument or the

document based on which the suit has been filed, which

has been carried forward into the plaint and repeated in

the decree, by exercise of jurisdiction under Section

152 of the CPC. It was observed therein that, there is

no reason to restrict the powers of the court under

Section 152 of the CPC to errors made by the Courts

alone. In the said decision the Court has taken note of

the     views      expressed in    Satyanarayana V. Purnayya

(supra), Ramakrishnan v. Radhakrishnan (AIR 1948 Madras

13),      Katamaraju V. Paripurnannadam (AIR 1949 Mad. 282)

and Krishna Poduval v. Lekshmi Nathiar (AIR 1950 Madras

751). This Court held that even the errors that occurred


anterior to the decree and which were in existence even

in the original document, which happened to be carried

forward to the plaint and decree, could be corrected in

the decree, by exercise of the powers under Section 152

of the CPC. The same view has been taken by this Court

in Abdhu v. Assainar (1993 [2] KLT 711) wherein also

this     Court      accepted the  proposition that even the

mistakes that had crept in anterior to the suit can be

corrected by the court in the decree. That was a case

where a mistake that had crept in the preliminary decree

regarding the survey number of the property therein was

corrected. In Raman Nadar Velayudhan Nadar v. Janaki

Karthi (2011 [2] KLT 149) this Court held that a decree

can be corrected not only under Section 152 of the Code

of Civil Procedure, but even the inherent powers under

Section       151     of the CPC    could be invoked in  an

appropriate case.



       9.     I am of the view that there is no reason to

restrict the scope of Section 152 of the Code of CPC to

`accidental slip or omission' of the Court and its

ministerial staff alone. It would be relevant to extract

Section 152 of the CPC:

              "152. Amendment of judgments, decrees or orders:-

       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 of its own motion or on

       the application of any of the parties."

There is nothing to indicate that the applicability of

the Section is confined to cases of slip or omission by

Court.      It     definitely       takes      within    its    compass     the

`accidental slip or omission' of the parties also.

Essentially the question would be whether it was an

instance of `accidental slip or omission'. When the

Court      is    satisfied       that     the    mistake     or    error    was

accidental, powers vested in the Court under Section 152

of the CPC needs to be invoked to correct mistakes in



the decree, especially in a case like the present one,

where parties to the suit do not dispute the fact that

the particulars sought to be corrected, is a mistake. It

would be highly inequitable in such a case, to drive the

parties to a separate litigation seeking the relief of

rectification of the instrument itself. A mistake made

by the parties in a deed upon which the suit is founded

and carried forward into the judgment, decree or order

might      be    or   might not  be    an "accidental slip or

omission". In cases where it is clear that the case is

one of "accidental slip or omission", it is the duty of

the court to correct the decree in tune with the actual

intend of the Court and the parties. It is not necessary

to drive the parties to a separate litigation for

rectification of the deed. Giving such an interpretation

to Section 152 of the CPC would only advance the cause

of justice. Even assuming that Section 152 of the CPC


does not apply, still it could be corrected in exercise

of the inherent power vested under Section 151 of the

CPC. In such matters Courts should not be tied up by the

shackles of technicalities but must strive to do justice

to the parties. In adopting the above approach, I am

fortified by the judgment of the Apex Court in Niyamat

Ali Molla V.Sonargon Housing Cooperative Society and

others (2007 (13) SCC 421).

       10. In the instant case, as pointed out earlier,

there      is    no   dispute between   parties regarding the

identity of the property sought to be partitioned. The

respondents have no objection to the correction of the

survey number of the property in the manner as sought

for by the petitioner. If the correction is allowed that

will not cause prejudice to any of the parties to the

litigation. The only apprehension is whether as per the

revenue records the property in the particular survey


number sought to be incorporated namely Sy.No.644/5, is

shown to be in the possession of third parties, in which

event, the rights of the said third parties would be

affected by the inclusion of the said survey number in

the present case. I make it clear that the right of

third parties, if any, over the property described in

the survey number sought to be incorporated, will not be

affected by such inclusion. If there is any disputed

right, the parties to the present suit will have to

approach the appropriate Court or authorities, seeking

necessary reliefs.

       11. The Court below has denied the relief sought

for by the petitioner stating that, without amendment of

the plaint and Ext.P2 Patta, the relief as sought for

cannot be granted. I am unable to concur with the

reasoning adopted by the Court below for the reasons

stated supra.



       In the result, the Original Petition is allowed.

Ext.P9 order dated 22.12.2014 in I.A. 2218 of 2014 in

O.S 1390 of 2012 on the files of the Munsiff's Court,

Kodungallur is hereby set aside. Exhibit P7 application,

namely, I.A. 2218 of 2014, will stand allowed subject to

the observations made above.




                                           Sd/-
                                 SATHISH NINAN, JUDGE.

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