Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 613 (KAR)

M. K. PURUSHOTTAM v. MAILAMMA

2000-09-05

H.N.TILHARI

body2000
HARI NATH TILHARI, J. ( 1 ) THESE revision arise from common judgment and order delivered by the principal Civil Judge, Junior Division, Bellary, in M. C. Nos. 44/ 94, 21/94 to 26/94 and 57/94 to 68/94. These cases were disposed of by a common judgment. In fact, 19 Petitions had been filed by the Petitioners in those cases under Section 151 and 152 of the code of Civil Procedure seeking to amend the compromise decree as well as the compromise Petition with the allegations to the effect that they intend to correct the area of the land in question which was mentioned in the compromise decree as well as in the compromise Petition as 1707. 55 sq. yards, and to substitute figure 707. 55 sq. yards. The objection were filed to these applications on behalf of the opposite parties and it was submitted that the compromise decree being in accordance with the terms of the compromise and being in consonance with the compromise itself, it cannot be said that it was not a case of any arithmetical or typographical error alone, to have crept in the compromise petition and decree in O. S. No. 176/83 to 182/83, 184/83 to 199/83 and 175/ 83 which can be amendable by this Court actirig under Section 151 and 152 of the Code of Civil procedure. The Court below after considering the matter in detail and after quoting the terms of compromise and compromise decree, opined and observed that, "since here in these petitions, Petitioners sought to amend the compromise petition as well as decree and that too when no arithmetical error or any mistake being crept in the decree drawn by this Court as the Court has drew up the decree in consonance of the compromise petition, the application is not maintainable. " with these findings, the trial Court passed the order rejecting the applications, ( 2 ) I have heard Sri. Basavaraj Kareddy, learned Counsel for the Petitioner and Sri S. V. Tilgul learned counsel for the Respondents. ( 3 ) THE learned Counsel for the Petitioner strenuously contended that the mistake was there in the compromise which resulted in passing of the compromise decree in the description of the area as 1707. 55 sq. yards and which according to the learned Counsel for the revision Petitioner should have been only 707. 55 sq. yards. ( 3 ) THE learned Counsel for the Petitioner strenuously contended that the mistake was there in the compromise which resulted in passing of the compromise decree in the description of the area as 1707. 55 sq. yards and which according to the learned Counsel for the revision Petitioner should have been only 707. 55 sq. yards. From a perusal of the record it also comes out that the advocates for the parties fixed the price at Rs. 55. 00 per sq. yard. ( 4 ) THE compromise decree and the terms of compromise readas under:-"compromise Petition filed on behalf of the parties under order 23 Rule 1 C. P. C. It is submitted: 1. On the advise of well wishers and elders, the parties in the suit have compounded the suit claim and pray that the decree be passed on the following terms and conditions: 2. The plaintiff's suit shall stand decreed as prayed for; 3. That the defendant in the suit and the defendants in the other suit are entitled to the suit schedule A open space subject to the payment of a total sum of Rs. 95,000. 00 being the sale price of rs. 1,707. 55 sq. yards of open space in T. S. No. 222, Ward No. 12, block No. 10 situated in Gandhinagar, Bellary, morefully described in the schedule A to the plaint which belongs to the plaintiff. The defendants in this suit and other suits viz. , 176, 177,178, 179, 180, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194 of 1983 shall pay the amount of Rs. 95. 000. 00 payable to the plaintiff on or before 4. 3. 1985. On payment of the said sum of defendant in this suit and defendants in other suits shall be declared to be the owners. On failure to pay the said sum the plaintiff's suit shall stand decreed as set out in para 1 and the plaintiff will be entitled to evict the defendants by virtue of this decree. He need not file a separate suit for that. 3. It shall, be the responsibility of this defendant and other defendants in other suits to contribute towards the sale price in accordance with the area in their occupation. He need not file a separate suit for that. 3. It shall, be the responsibility of this defendant and other defendants in other suits to contribute towards the sale price in accordance with the area in their occupation. Similarly the defendants in all the above suits shall demarcate and decide the plots to which they are entitled to in accordance with the price they have paid and apply for sub-division at their costs. 4. After the defendants pay the amount the plaintiff shall execute any document which the defendants want. 5. The above terms shall form the terms of compromise in eachof the above suits. 6. Each party has to bear their own costs. 7. Half Court fee may be refunded to plaintiff. Sd/- Plaintiff sd/- Defendants sd/- Advocate for the plaintiff sd/- Advocate for the defendants. "this compromise was filed in O. S. No. 181/83 decided by compromise decree dated 27. 8. 1984. The decree drawn by the trial court reads as under:-"in the Court of the Principal Munsiff, at Bejiary. Present: Sri P. G. Kulkarni, B. A. , L. L. B. , principal Munsiff. Dated this the 27th Day of August, 1984, original suit No. 181 of 1983 between; m. K. Kamalanabhan, s/o. Kuppuswamy Mudaliar, aged 60 years, hindu, Pensioner, c/o M. K, Kamalanabhan, no. 1, H. B. Board, near S. P. Quarters, parvathinagar, Bellary. PLAINTIFF and mallamma w/o. Sunkkappa, coolie, Major, kappagal Road, gandhinagar, bellary. Defendant suit filed on 30. 5. 83 suit is valued at Rs. 100 cause of action arose on 25. 4. 32, 3. 5. 40, 18. 1. 43, 13. 2. 47, 3. 5. 48 and on 4. 5. 48 at Bellary. Claim: Suit for declaration of plaintiff's title to the schedule mentioned property and for possession of the same and for costs. DECREETAL ORDER: This suit is coming on this day for final disposal before me in the presence of Sri. P. V. Venkataraman, advocate for the plaintiff and of Sri. S. Gururaja Rao, Advocate of the defendant and the advocates for the parties having filed a compromise petition, upon considering the said petition and going through the relevant documents pertaining to the suit (Compromise petition enclosed herewith ). This Court passed the order and decree as follows:- 1) That the defendant in the suit and the defendants in the other suits are entitled to the suit schedule. This Court passed the order and decree as follows:- 1) That the defendant in the suit and the defendants in the other suits are entitled to the suit schedule. A open space subject to the payment of a total sum of Rs. 95,000. 00 being the sale price of 1,707. 55 sq. yards of open space in T. S. No. 222, Ward No. 12, block No. 10, situated in Gandhinagar, Beliary, morefully described in the schedule A to the plaint belonging to the plaintiff. The defendants in this suit and other suits viz. , 176, 177, 178, 179, 180, 181, 182, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 195 of 1983 shall pay the amount of Rs. 95. 000. 00 payable to the plaintiff on or before 1. 3. 1985. On payment of the said sum the defendant in this suit and defendants in other suits shall be declared to be the owners. On failure to pay the said sum the plaintiff's suit shall stand decreed as set out in para 1 and plaintiff will be entitled to evict the defendants by virtue of this decree. He need not file a separate suit for that. 2} It shall be the responsibility of this defendant in other suits to contribute towards the sale price in accordance with me area in their occupation. Similarly the defendants in all the above suits shall demarcate and decide the plots to which they are entitled to in accordance with the price they have paid and apply for sub-division at their costs. 3) After the defendants pay the amount, the plaintiff shall execute any document which the defendants want. 4) Further there is no order as to costs of this suit. Given under my hand and the seal of the Court, this the 27th day of August, 1984. Sd/-Principal Munsiff. " ( 5 ) THAT, in order to support his contention that mistake was carried out in compromise as well as in decree, the Revision Petitioner examined himself as P. W. 1 and filed the documentary evidence Ex. P- 1 to P-6. The respondent also led evidence and after evidence was closed, the Court proceeded to decide this question. " ( 5 ) THAT, in order to support his contention that mistake was carried out in compromise as well as in decree, the Revision Petitioner examined himself as P. W. 1 and filed the documentary evidence Ex. P- 1 to P-6. The respondent also led evidence and after evidence was closed, the Court proceeded to decide this question. It appears thus when parties had to lead the evidence, and claim in application was contested and if parties had to lead evidence, then really they want a decision afresh in the suit to show that the property consisted of so much area and not as mentioned in compromise Petition or decree passed in terms of compromise. This leads me to opine that this cannot be said to be a case of clerical or arithmetical mistake nor can it be said that the decree passed was not in consonance with the terms of compromise. Here the applicant when he led the evidence, atleast he had tried to show that there was some wrong description of the property which the opposite party contested. So, this is not a case where it can be said that both the parties consented or agreed that there was a mistake or typographical mistake or that compromise entered into was not indicating the terms of compromise. No doubt, under Section 152, the Court has power to correct the clerical and arithmetical mistake in the decree. It may also be said, as held by this Court in the case of P. M. KRISHNA MURTHY vs m/s. SHIVAPRASAD AND ANOTHER' that under Section 151 and 152, the Court has got the power to amend the compromise decree, but it has to be taken note of that in this case this Court has very clearly laid it down that a decree which is not in conformity with the compromise recorded in the suit can be amended to bring the decree in conformity with the compromise. It has also been laid down that if there is a clause in the decree which is capable of being differed from the rest of the decree and compromise without altering and affecting the decree itself, then it is open to the Court to amend the decree at the instance of any one of the parties, even without the consent of both the parties. It means when it has the effect of amending the decree and the basic terms of the contract between the parties, the amendment of which may have a result of altering the decree, the Court has no jurisdiction under Section 151 and 152 c. P. C. to amend the compromise decree. This case relied by Sri basavaraj Kareddy, learned Counsel for the revision Petitioner, in my opinion, does not help him, because in the present case, the amendment sought is with respect to the area of the land which is the subject matter of the compromise decree and if it is altered after taking the evidence, then it means the decree is going to be varied and its effect is going to be altered or modified. ( 6 ) IN this view of the matter, in my opinion, firstly in the present case, the compromise decree when it is very clear and compromise decree in consonance with terms of compromise arrived at between the parties, there is no dispute between the parties at this stage as nature of alleged error or mistake, the compromise cannot be allowed to be varied under Section 152 or Section 151 of C. P. C. The scope of Section 152 is only to correct the clerical or arithmetical mistake or to make clerical correction in the compromise decree if the decree which has been drawn is not in consonance and in conformity with the terms of the compromise. When I so opine, I find support for my view from the following decisions:- in the case of KOKA ADINARAYANA RAO NAIDU vs KOKA kothandaramayya NAIDU it has been observed as under:- the learned District Judge has exercised powers under Section 152 Civil P. C. , 18 years after the decree was passed, when the decree itself was one passed on the consent of parties and the persons who were able to speak to the terms of that consent are dead. In my opinion, Section 152 does not empower a Court to rectify a decree merely because that decree is wrong or unfair or because the parties have not realized their duties and put them before the Court in such a way as to enable a correct decree to be passed. The powers given under this Section only relate to arithmetical mistakes or errors arising from an accidental slip or omission. The powers given under this Section only relate to arithmetical mistakes or errors arising from an accidental slip or omission. It seems to me impossible to hold long after the event that when there is an apparent omission of an important terms from a judgment proceeding on the consent of parties this term has been omitted by an accidental slip. No one knows that took place when the learned District Judge who is now dead discussed the rights and liabilities of the parties with the two learned Counsel who are also dead. It is not impossible that counsel may have given up one claim in order to secure another claim. To my mind there can be no certainty that the omission of this term from the final decree as amended by the late District judge was due to any mere error. Assuming that it was due to an error there is still less certainty that the error was an accident for which the Court itself was responsible and that it was not due to lack of diligence on the part of one "of the parties. It is a dangerous thing to add terms to a consent decree and I doubt very much whether the Court has jurisdiction to do so under section 152 at any rate without the consent of those who agree to the original order. The presumption is that this judgment and the decree drafted in accordance therewith were scrutinized by the learned gentlemen with whose consent the judgment was passed. "it is", as Jackson J. observes, not right when the parties have allowed an agreed statement to be embodied into a decree that the plaintiff do pay so much to ask the executing Court to recast the amount and amend the decree. The objection is, to my mind, just as forcible when the request is made at a very late stage to the trial Court under Section 152, as when it was made to the executing Court. In this view I must hold that the learned District Judge has no jurisdiction under section 152 to add a term to what is in fact a consent decree without the consent of both parties. In this view I must hold that the learned District Judge has no jurisdiction under section 152 to add a term to what is in fact a consent decree without the consent of both parties. " ( 7 ) THE learned Counsel for the revision Petitioner sought to take assistance from the decision of the Allahabad High Court in the case of RIKKI RAM and OTHERS vs RADHE SHIAM to submit that under Section 151, compromise could be corrected. No doubt the case before the Allahabad High Court was a case for modification of the compromise decree. But in that case, the Court itself failed to take notice of the map filed with the compromise and none of the parties nor the Court did take note of the fact that under the compromise, 11 inches passage was provided to the plaintiff and the defendant which was such that which could not be used and the Court realized that mistake itself that it was a mistake of the court as well as of the parties as they did not realize that 11 inches passage is of no use and the Court thought it as its duty to correct the mistake, as proper passage should be provided by which the parties could make use of it, otherwise the compromise decree would have rendered in fructuous. So, to make the decree effective and fruitful to both the parties, the Court exercised its inherent powers and provided the passage to be 2 feet. ( 8 ) HERE, it is not a case where it can be said that the compromise decree is going to become infructuous and ineffective because of the mistake of the Court or of parties. The parties entered into compromise with full knowledge and the decree will remain effective as it is in consonance with the terms of the compromise. In my opinion, the decision of the Allahabad High Court is of no assistance to the learned Counsel for the Revision Petitioner. If the compromise suffers from any mistake or requires rectification, then remedy for the petitioner was not to move an application under Section 151 or 152. He could have filed a suit for rectification of compromise and the decree if, according to the Revision Petitioner, the compromise suffers from any mistake or understanding. But application under section 151 or 152 did not lie. He could have filed a suit for rectification of compromise and the decree if, according to the Revision Petitioner, the compromise suffers from any mistake or understanding. But application under section 151 or 152 did not lie. When I so observe, I find support for my view from the decision of the Kerala High Court in the case of sankaran NAMBUDIRIPAD vs RAMAN NAMBUDIRI and OTHERS as well as from the decision of the Bombay High Court in the case of KARIMUNNISA BEGUM vs KAJI MIR JAMALUDDin MIR MASUM alikhan and OTHERS. Thus considered in my opinion, the trial Court did not commit any error of jurisdiction by holding that the application was not maintainable as the case did not involve a question of clerical mistake or arithmetical mistake as well as in holding that it was not a fit case for excercising inherent jurisdiction under Section 151. The order impugned, in my opinion, is perfectly justified and it is not suffering from any jurisdictional error. All the revision Petitions which arise from the common judgment are being disposed of and are dismissed by this common judgment. Costs made easy. --- *** --- .