Amendment of Decree; Chandran Vs. Amruthavally [Kerala High Court, 17-10-2016]

Civil Procedure Code, 1908 – Section 152 –Amendment of the decree – mistake regarding the survey number – “accidental slip or omission” – 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.

# Decree

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SATHISH NINAN, J.

O.P(C) No.1268 of 2015

Dated this the 17th day of October, 2016

AGAINST ORDER DATED 22.12.2014 IN I.A. NO.2218 OF 2014 IN O.S. NO.1390 OF 2012, MUNSIFF’S COURT, KODUNGALLUR

PETITIONER(S)/PETITIONERS

CHANDRAN, KODUNGALLUR BY ADVS.SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN

RESPONDENT(S)/RESPONDENTS

AMRUTHAVALLY AND 12 OTHERS BY ADV. SRI.M.SUKUMARAN

J U D G M E N T

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-ininterest 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 Mad. 13

# Katamaraju V. Paripurnannadam, AIR 1949 Mad. 282

and

# Krishna Poduval v. Lekshmi Nathiar, AIR 1950 Mad. 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.

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