S. BANERJEA, J. ( 1 ) THE present revisional application is directed against Order No. 23, dated 6th June , 1997 passed by the learned Assistant District Judge, Balurghat, Dakshin Dinajpur in Partition Suit No. 43 of 1995. ( 2 ) ADMITTEDLY, in the aforesaid partition suit a preliminary decree has been passed on compromise on the basis of solenama filed by all the parties. Subsequently, an application was filed under section 151 of Code of Civil Procedure by the opposite parties for correction of the decree. It was stated in the said application that at the time of filling of the suit, due to inadvertence in the schedule of the plaint Plot No. 124 was mentioned instead of Plot No. 142 and because of such mistake occurred in the schedule of the plaint, compromise decree has also been passed on the basis of such erroneous schedule. But the aforesaid prayer was seriously objected to by the presert petitioners disputing that the aforesaid plot No. 124 was erroneously mentioned in the schedule of the plaint instead of plot No. 142. In the said objection a specific case was made out that the aforesaid plot No. 142 was given to the petitioner No. 2 by the father during his lifetime on 19th June, 1966 by virtue of a wasiyatnama. Since then such land is being possessed by the petitioner No. 2 in his own right which the opposite parties were fully aware. ( 3 ) BY the impugned order the learned Munsif has allowed such prayer for amendment of the decree on the ground that this is a simple correction of mistakes which is permissible. ( 4 ) HAVING heard the learned Advocates for the parties and considering the application, I am of the view that the impugned order cannot be sustained. Admittedly, the plot in question was not mentioned in the schedule of the plaint and the compromise decree was passed on the solenama of the parties where the said plot which according to the opposite parties inadvertently was omitted in the plaint schedule, was also not mentioned. In such view of the matter, allowing the prayer of the petitioner cannot certainly be called a simple clerical or mathematical mistake in the decree which can be corrected in the manner as has been done in the instant case.
In such view of the matter, allowing the prayer of the petitioner cannot certainly be called a simple clerical or mathematical mistake in the decree which can be corrected in the manner as has been done in the instant case. On the contrary, it has the effect of totally altering the compromise decree which certainly cannot be done under the provision of section 151 or 152 of the Code of Civil Procedure. The learned trial Court has erred in excess of its jurisdiction by allowing such prayer. In the objection filed by the petitioner he disputed that an inadvertent mistake by non-inclusion of the plot in question was committed, on the contrary he claimed such plot in his exclusive right and not as a joint property. So it has been rightly contended by the learned Advocate for the petitioners that such correction in the manner as aforesaid would mean that the petitioners would be compelled to be a party to compromise to which he is not enterable. ( 5 ) THE learned counsel for the opposite parties has relied on two decisions, one of the Gauhati High Court reported in AIR 1981 Gauhati page 41 and another of the Supreme Court reported in AIR 1967 SC 1440 . None of such decisions really helps the petitioners in as much as, it is held there that errors can be corrected subsequently not only in decree drawn up by ministerial officers but even in judgment pronounced and signed by the Court. This is, however, not a case of ministerial errors or otherwise, which can be corrected under provisions of section 152 of the Civil Procedure Code. ( 6 ) IN this connection, a decision of the Supreme Court namely, Chiyoda Corporation v. National Fertiliser Ltd. and anr. reported in 1995 supp (3) SCC 455 relied upon by the learned Advocate for the petitioners may be referred to.
( 6 ) IN this connection, a decision of the Supreme Court namely, Chiyoda Corporation v. National Fertiliser Ltd. and anr. reported in 1995 supp (3) SCC 455 relied upon by the learned Advocate for the petitioners may be referred to. In the said case a decree was passed for a specific amount of money in rupees together with interest in terms of relief claimed in the plaint, subsequent application made under section 152 read with section 151 for modification of the decree by increasing the amount decreed in terms of rupees on the basis of rise in value of Japanese Yen in the meantime, was rejected by the Hon'ble Supreme Court, on the ground that such relief of modification cannot be allowed since it does not arise out of the relief claimed in the plaint. ( 7 ) SINCE the relief in the instant case, as asked for, by the petitioners did not arise in the plaint, such modification of the decree, therefore, could not have been allowed. It may be noted that it is also not the case of the petitioners that the compromise entered into between the parties is improper for which the order can be recalled under provision (2) Order 23 Rule 3 of the Civil Procedure Code. For the reasons stated above, the revisional application succeeds. The Order No. 23 dated 6th June, 1997 passed by the learned Assistant District Judge, Balurghat, Dakshin Dinjpur in partition Suit No. 43 of 1995 is hereby set aside. There will be no order as to costs. This order will, however, not prevent the petitioners to avail of any other remedy if the same is available to them under the law. Application succeeds .