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.
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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