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2002 DIGILAW 230 (GAU)

Manowar Islam v. Masud Ahmed

2002-05-24

AMITAVA ROY

body2002
A.ROY,J.— A compromise entered into between the parties to a suit involving immovable property has tossed up the present controversy in this revision. The plaintiff in the suit, is before this Court assailing the order dated 24.8.2000 passed by the learned Civil Judge, Senior Division, Golaghat in Title Execution Case No. II 98 allowing amendment of a compromise decree on the basis of an application filed by the opposite party Nos. 1 to 4. 2. I have heard Mr P.K. Roy Choudhury, learned counsel for the petitioner and Mr B.K. Goswami, learned senior counsel assisted by Ms T. Goswami counsel for the opposite party Nos. 1 to 4. None has appeared on behalf of the other members of the opposite party. 3. The bare facts necessary for the disposal is of the petition are that the petitioner as plaintiff filed Title Suit No. 22/91 against the opposite party in the Court of Civil Judge, Senior Division, Golaghat praying for a decree for petition of suit property described in Schedule-A to the plaint and other reliefs. In the said suit opposite party Nos. 9, 10, 11 and 12 were impleaded as defendant Nos. 6, 7, 8 and 9. As according to the plaintiff they were transferees of land in the same patta in which the suit land was included, but no relief was claimed against them. Schedule-A to the plaint was described as hereunder:- 14 (fourteen) Bighas 1 (one) Katha out of 16 Bighas 2 Kathas 15 lechas of land under periodic patta No. 4 covered by Dag No. 588 (1B-4K-1L), 590 (2B-3K-6L), 591 (1B-3K-10L), 632 (1B-OK-3L), 634 (7B-1K) at Bokakhat Town, Mouza-Bokakhat, district Golaghat (Assam). 4. The suit was contested by the opposite party defendants. However during the pendency of the suit the plaintiff/ petitioner and the opposite party Nos. 1 to 4 entered into a compromise and filed a joint compromise petition before the learned trial Court with a prayer to pass a decree in accordance with the terms and conditions of the compromise. The relevant paragraphs of the compromise petition, amendment of which has given rise to the present controversy are set out as hereunder:- "2. 1 to 4 entered into a compromise and filed a joint compromise petition before the learned trial Court with a prayer to pass a decree in accordance with the terms and conditions of the compromise. The relevant paragraphs of the compromise petition, amendment of which has given rise to the present controversy are set out as hereunder:- "2. Land measuring 2 Bighas and 3 Lechas covered by periodic patta No. 4 and Dag No. 632 of Bokakhat Town under Bokakhat Mouza will be equally shared by dividing equally will be taken by both the parties but the plaintiff from his own share of the said land of the said dag one Katha land will deliver to the defendants in excess. The said land i.e. 1 Katha of the said Dag will be given from the western boundary. In the said dag at present some rented house of the defendants are situated and if the said rented houses are comes in the share of plaintiff, the defendants will deliver the same to the plaintiff. And since the date of taking rents are the remaining rents will be given to th$ plaintiff. 3. Land measuring 8 Bighas 2 Kathas and 13 Lechas covered by periodic patta No. 4 and Dag No. 634 of Bokakhat Town under Bokakhat Mouza will be equally divided and equally taken by both the parties. The said land will be equally divided as per the previous position by calling the local Lat Mandal within one month from/today under the said dag land measuring 3 Kathas and 10 Lechas have already been sold to some persons by the decease/d father of the defendants. For that reason the defendants will get land measuring 3 Kathas and 10 Lechas lesser than the saled l/2 share." 5. Accordingly the learned trial Court on 11.4.97 drew up a compromise decree acting on the said compromise petition mentioning inter-alia therein that the parties would take effective steps to implement the terms and conditions incorporated in the compromise petition which formed a part of the decree within one month from the date thereof. 6. Pursuant to the said decree, the learned trial Court, in Title Execution Case No. 7/98, instituted by the present petitioner to execute the same, by order dated 5.12.98 issued the writ of execution fixing 16.12.98 for the report of the Nazir of the Court. 6. Pursuant to the said decree, the learned trial Court, in Title Execution Case No. 7/98, instituted by the present petitioner to execute the same, by order dated 5.12.98 issued the writ of execution fixing 16.12.98 for the report of the Nazir of the Court. The case of the petitioner is that accordingly the civil Nazir of the Court of the Civil Judge,. Senior Division, Golaghat visited the suit land on 15.12.98 and executed the decree after the land was measured by the Lat Mandal in consultation with the map and Chitha book and khas possession of the land was delivered to him. The civil Nazir also on 16.12.98 submitted a report to the learned executing Court to the above effect. 7. While the matter rested at that, the opposite party No. 1 to 4 filed an application under Sections 151/152 of the civil Procedure Code before the learned executing Court on 23.12.98 praying for an amendment of the compromise decree. According, to them some mistakes had crept into the compromise petition which if not rectified would result in serious loss and prejudice to them. The mistakes pointed out by them, can be briefly summarised as hereunder:- i) The area of land in Dag No. 634 mentioned in paragraph 3 of the compromise petition and shown as 8B 2K 3L should infactbe 8B IK 13L. ii) IB of land covered by Dag No. 632 and 634 out of the land measuring 2B OK 3L and 8B IK 13L respectively was sold to Satya Narayan Agarwal, the opposite party No. 9 who thereafter had sold IK 9'/2L thereof to opposite party No. 12 and therefore the petitioner decree holder was not entitled to claim the said land under the compromise. iii) IB of land covered by Dag No. 632 and 634 out of 2B OK 3L and 8B IK 13L respectively was sold to one Nemi Chand Jain who subsequently sold the same to Fariuddin Ahmed, the father of opposite party No. 1 to 4 and therefore this land as well cannot be claimed by the petitioner decree holder under the compromise. iv) The petitioner decree holder was not entitled to claim the above land and that he was aware of the same as well which is apparent from the description of the land in Schedule-A to the plaint where the area of land under Dag No. 632 and 634 is much less than 2B OK 3L and 8B 2K 13L as recorded in the compromise petition. 8. The opposite party Nos. 1 to 4 further contended therein that the Nazir of the Civil Court on 15.12.98 partitioned the entire land measuring 2B 3L under Dag No. 632 and that the said mistakes came to their notice only on that day. They further prayed for modification of the compromise decree by correcting the mistakes set out in the petition. 9. A written objection was filed by the petitioner/decree holder contending inter-alia that the petition filed by the opposite party Nos. 1 to 4 was not maintainable in law and on- facts as the compromise decree had already been executed. He further contended that the opposite Party Nos. 1 to 4 were educated persons and had entered into the compromise with full knowledge and consent and that there was no scope for any mistake on their part as sought to be represented by them. He took a stand that the decree having been executed on 15.12.98 and he having taken possession of his portion of the land in terms of the compromise, the learned executing Court had no jurisdiction to allow the correction of compromise petition and further make any alteration in the compromise decree. 10. The learned executing Court however, by the impugned order, allowed the application filed by the opposite No. 1 to 4 and ordered tttat in paragraph 2 of the compromise decree the area of land covered by Dag No. 632 should be amended as 3K 1AL in place of 2B OK 3L and the area of land in paragraph 3 of the compromise decree should read as 7B 3K 10l/2L in place of 8B 2K 13L. 11. 11. The learned trial Court came to the said conclusions by taking note of the fact inter alia that in Schedule-A to the plaint the suit land was shown as 1B-3L in Dag No. 632 and 7B-1K in Dag No. 634 and that therefore even according to the plaintiff, he did not accept 2B-3L of land under Dag No. 632 and 8B-2K-13L under Dag No. 634, available for partition. It further deserved that while drawing up the compromise petition, the parties though had consulted the jamabandi, they had overlooked the fact that the name of Satya Narayan Agarwal and Nemii Chand Jain had been mutated in respect of IB of land each under Dag No. 632 and 634 and that further there was a mutation in respect of IB of land in the said dags in the name of Fariuddin Ahmed and Meherunnissa on repurchase of the said land from Nemi Chand Jain. It therefore proceeded on the basis, that the aforesaid 2B of land sold to Satya Narayan Agarwal and Nemi Chand Jain could not be partitioned between the parties. The learned executing Court further observed that the petitioner/decree holder was silent on that aspect of the matter which according to it, indicated his admission of the said fact. With regard to the execution of the compromise decree, the learned executing Court held that the report of the Nazir showed the signature of the petitioner/decree holder only and the report was not accepted by the Court in view of the objection raised by the judgment debtors. According to the learned trial Court, there was therefore an accidental slip or arithmetical error and therefore if the decree was amended it would not prejudice the petitioner/decree holder. It held that matters extraneous and beyond the scope of the suit may be included in a compromise petition, but it would be the duty of the Court to restrict the operative portion of the decree to the subject matter of the suit. Observing that the Court had jurisdiction to correct the decree in conformity with the pleadings. It held that as there was an arithmetical error in the compromise petition, the compromise decree in the instant case could be amended to bring it in conformity with the compromise petition. 12. Observing that the Court had jurisdiction to correct the decree in conformity with the pleadings. It held that as there was an arithmetical error in the compromise petition, the compromise decree in the instant case could be amended to bring it in conformity with the compromise petition. 12. The learned counsel for the petitioner has argued that the parties to the suit having entered into a compromise and the compromise decree having been passed on the basis of the said compromise and further as the said decree had already been executed, no amendment and/or alteration in the compromise decree was permissible in exercise of power under Sections 1517 152 of the C.P.C. He contended that assuming without admitting that there were some mistakes in the compromise petition as indicated by the opposite party/ judgment debtor, considering the nature of mistakes, the same could not be said to be either clerical or arithmetical or of the type arising out of accidental slip or omission and therefore the decree of the Court could not be amended taking note of such mistakes in exercise of power under Section 152 of the Code. He emphatically submitted that the impugned order has been passed in illegal exercise of jurisdiction and is therefore liable to be set aside by this Court. He has further argued that if at all the opposite party is serious about getting the so-called mistakes rectified, it is open for them to pursue any other remedy available to them in law but the application under Sections 151/152 CPC was clearly not maintainable in law. The learned counsel has sought to draw sustenance from the following authorities:- (2001)4 SCC181 (Jayalakshmi Coelho-Vs-Oswald Joseph Coelho (2000)9 SCC 345 (SomDutt (Dead)-Vs-Govind Ram) AIR 1972 SC1371 (Bhavan Vaja and others-Vs-Solanki Hanuji Khodaji Mansang and Another) AIR 1993 SC 1628 (Ameena Bi-Vs-Kuppuswamy Naidu and others) AIR 1916 Calcutta 446 (Wajit Alt and another, plaintiff/petitioner- Vs-KhursedAssam & others, defendants/opp. parties) AIR 1993 Gau 56 (Babul Ali-Vs-Smt Khirada Dutta and others). 13. Per contra, Mr Goswami, learned senior counsel for the opp. party/judgment debtors has argued that in the present case, the compromise decree, though had been drawn up by the Court on the basis of the compromise petition, the compromise petition is not a part of the decree. parties) AIR 1993 Gau 56 (Babul Ali-Vs-Smt Khirada Dutta and others). 13. Per contra, Mr Goswami, learned senior counsel for the opp. party/judgment debtors has argued that in the present case, the compromise decree, though had been drawn up by the Court on the basis of the compromise petition, the compromise petition is not a part of the decree. Drawing the attention of the Court to the difference in the contents of the compromise petition and the compromise decree, the learned senior counsel submitted that it is therefore not a case where a decree can be executed in terms of the compromise petition and thus it is not open to interpreting the compromise petition he argued. It is the compromise decree which has to be construed and according to him a reading of the compromise decree makes it clear that the same was not executable in the form in which it had been drawn up. The learned senior counsel further argued that in the instant case, the report of the Nazir showed that the signature of the petitioner/ decree holder was only available on it and as the Court had not accepted the said report, it cannot be said that the execution proceedings had terminated in law. He argued, that it was thus open for the executing Court to amend and or correct the decree if justice demanded, the learned senior counsel has drawn the attention of this Court to Schedule-A to the plaint to emphasis his point that even the petitioner-plaintiff was aware that the entire land measuring 2B-3L and 8B IK 13L under Dag No. 632 and 634 respectively were , not available for partition between the parties. Supporting the findings of the learned executing Court, learned senior counsel argued that a look into the revenue records, clearly establish that land measuring 2B in Dag No. 632 and 634 was mutated in the name of Satya Narayan Agarwal and Nemi Chand Jain and therefore any compromise effected between the parties involving the land of the above named two persons without making them part to the compromise was exfacie illegal and not binding on them. He argued that in any case, there are patent mistakes in the compromise decree and it was thus open for the learned executing Court in exercise of its power under Sections 151/152 CPC to correct the said mistakes and accordingly amend the compromise decree. He argued that in any case, there are patent mistakes in the compromise decree and it was thus open for the learned executing Court in exercise of its power under Sections 151/152 CPC to correct the said mistakes and accordingly amend the compromise decree. He has further submitted that the impugned order does not suffer from any error of jurisdiction and therefore the same is not liable to be interferred with in revision under Section 115 CPC. He wound up his argument by submitting that when the effect of setting aside the impugned order would be to revive the illegalities sought to be cured by it, this Court would in the greater interest of justice upheld the impugned order. The learned senior counsel placed reliance on the following decisions in support of his submissions:- AIR 1967 SCI 440 (Samarendra Nath Sinha andAnother-- Vs-Krishna Kumar Nag). AIR 1981 Gau 41 (The Assam Tea Corporation Ltd.-Vs-Narayan Singh and another). (1983)2 GLR 309 (On the death of Aribam Gourahari Sharma, through his Legal Heirs Aribam Ashutosh Sharma and others-Vs-Smt Elangbam Ningol Potsangbam Ongbi Radhe Devi and others). (1999) 8 SCC 60 (General Insurance Corporation of India- Vs-Commissioner of Income Tax) 14. In Jayalakshmi (supra), the Apex Court has dealing with the scope of Section 152 of the code. In that case, an agreement was filed by the husband and wife for dissolution of their marriage with a prayer for a decree of divorce. After the consent decree was passed, an application was filed by the wife that the consent decree was silent about the other reliefs mentioned in the agreement and prayer for modification of the earlier decree. The Apex Court in that background held that a Court, in exercise of power under Section 152 CPC can rectify a mistake where it is clear that something which the Court intended to do but was left out accidentally and that any mistake had crept in, due to clerical or arithmetical error and that such rectification would advance the ends of justice. The power of rectification does not empower the Court to have a second thought over the matter, and to find out that better order or decree could or should be passed. It observed that the exercise of power under that provision of law is to be confined to something initially intended but left out or added against such intention. 15. The power of rectification does not empower the Court to have a second thought over the matter, and to find out that better order or decree could or should be passed. It observed that the exercise of power under that provision of law is to be confined to something initially intended but left out or added against such intention. 15. The Apex Court in Som Dun (Dead) by Lrs, appellant (supra) was examining the question whether it was permissible for a party to a compromise to resile therefrom. It held therein that such a party was estopped from objecting to the execution of a decree based on such compromise. 16. The decision in Bhavan Vaja and others (supra) deals with the scope of the power of an executing Court under Section 47 of the CPC. The Apex Court observed therein that though an Executing Court cannot go behind the decree, the Court, in order to find but the meaning of the words employed in a decree has to ascertain the circumstances under which those words came to be used and an omission to construe the decree is really an omission to exercise the jurisdiction vested in a Court. 17. In Ameena Bi (supra) the Apex Court was examining the question whether a person, not a party to an earlier suit could institute a suit challenging the attachment and sale of his property in execution of the decree passed in the former suit. The Apex Court observed that it was permissible under the law and such suit would not be barred under Section 47 CPC. 18. In Wajed Ali (supra) the Calcutta High Court while dealing with the scope of Section 151 CPC held that a Court has no power to vary or set aside a consent decree under Section' 151, made by it, when there is no variance between the decree and the solenamah (compromise deed). 19. This Court in Babul Ali (supra) held that in exercise of power under Section 47 of the CPC, it is duty of the Court to ascertain the correctness of the allegations if made that while taking over the property in execution of a decree excess property had been delivered. 20. 19. This Court in Babul Ali (supra) held that in exercise of power under Section 47 of the CPC, it is duty of the Court to ascertain the correctness of the allegations if made that while taking over the property in execution of a decree excess property had been delivered. 20. A review of the above decisions indicates, that a Court can exercise its power under Section 152 CPC to rectify only a clerical on arithmetical mistake in its judgment, decree or orders or mistakes/ errors arising out of accidental slip or omission, if it is satisfied that due to such mistake or errors there is a deviation from what it had intended to be incorporated in its judgment, decree or order as the case may be. The said provision of law, does not empower the Court to re-consider its decision on merits either of its own motion or on the application of any one of the parties to the proceedings. No second thought on the merits of the contention of the parties is permissible, on the ground that a better or a different judgment or decree or order ought to have been passed or should have been passed. The judicial opinion is that though it is permissible for executing Court to construe the decree to find out its correct meaning, it is not permissible for a party to a decree to resile therefrom by raising a plea touching the merits of the case decided. Section 151 of the CPC, though is the repository of the inherent power of a Court of law, it is not permissible for it to take recourse to 'that provision of law, if there are specific provisions in the Court to deal with the situation sought to be met by the exercise of such inherent power. 21. The decisions cited by the senior counsel for the opposite party/judgment debtors may now be considered. In Samarendra Nath Sinha (supra) the Apex Court held that there is an inherent power in the Court which passed the judgment to correct a clerical mistake or an error arising from accidental slip or an omission and to verify a judgment so as to give effect to its meaning and its intention. In Samarendra Nath Sinha (supra) the Apex Court held that there is an inherent power in the Court which passed the judgment to correct a clerical mistake or an error arising from accidental slip or an omission and to verify a judgment so as to give effect to its meaning and its intention. It observed that errors arising from-an accidental slip can be corrected not only in a decree drawn up by a ministerial officer of the Court but even in a judgment pronounced and signed by the Court. 22. This Court, in Assam Tea Corporation Ltd. (supra), while examining the scope of Section 152 CPC, held that whenever a mistake is committed by a Court or its officer and the shortfall is detached which may likely to cause prejudice to the party, it is the imperative duty and obligation of a Court to correct the mistake forthwith. It further observed that procedural provision should not be taken as a handle to deprive justice to a litigant. In the next decision cited by the learned senior counsel for the opposite party/judgment debtor reported in (1983) 2 GLR 309 (On the death of Aribam Gourahari Sharma, through his Legal Heirs Aribam Ashutosh Sharma and others}, this Court held that every Court has the inherent power to verify or amend its own decree or order so as to carry out its own meaning. The decree so drawn up should correctly express the judgment given by the Court. The two basic principles of Section 152 are that an Act of the Court shall prejudice no party and that the Courts have the duty to see that their records are true and they represent the correct state of affairs. 23. A survey of the above decisions emphasises the fact that if due to any mistake or error which is arithmetical, clerical on accidental in nature, due to which the intention of a Court is not correctly reflected in its judgment, decree or order and as a result of such mistake or an error, a party to a proceeding is likely t6 be prejudiced, it is the solemn duty of the Court to correct such mistake and or error. 24. Turning to the facts of the present case, admittedly the ,4ecree in hand was passed on the basis of a compromise petition signed by the parties incorporating therein the terms and conditions of compromise. 24. Turning to the facts of the present case, admittedly the ,4ecree in hand was passed on the basis of a compromise petition signed by the parties incorporating therein the terms and conditions of compromise. The decree was not only drawn up on the basis of the compromise petition but it also categorically mentioned that me compromise petition would form a part of the compromise decree. The said decree was duly passed and was executed. The learned executing Court has held that it did not accept the report of the Nazirin view of the objection raised by the opposite party/judgment debtors. There is nothing to indicate otherwise. The question remains, whether the amendments incorporated in the compromise decree by the impugned order are permissible in law? 25. It is apparent that the amendments made in the compromise decree has been on the basis of the application filed under Sections 151/152 CPC pointing out some mistakes in the area of land under Dag No. 632 and 634. The stand of the opposite party/judgment debtor is that land, measuring 2 Bighas in the aforementioned dags as included in the compromise decree was not available for partition on compromise as the same had been sold to others and were in their possession. In the opinion of this Court, the socalled mistakes or errors cannot be said to be clerical or arithmetical. It is also doubtful whether the same are accidental in view of the fact that both the parties had after due deliberations finalised the terms and conditions of compromise being fully aware of the property involved therein. Further, as the compromise petition has been made a part of the compromise decree and as the parties are now in difference about the terms and conditions of the compromise, in the opinion of this Court, unless the compromise petition is amended in the line of the rectifications prayed for by the opposite party, the compromise decree cannot be amended in exercise of power under Sections 151 and/or 152 of the Civil Procedure Code. This aspect of the matter was not taken into consideration by the learned executing Court. 26. There is one more aspect which needs to be noticed. This aspect of the matter was not taken into consideration by the learned executing Court. 26. There is one more aspect which needs to be noticed. The opposite party/ judgment debtors have after the decree had been passed, taken a stand that the area of land available for partition of compromise under Dag No. 632 & 634 had been wrongly shown in the compromise petition. Though it is true that the petitioner decree holder in his written objection to the petition under Section 151/152 CPC was not categorical in his denial on this aspect, it does not follow that either he has accepted the correctness of the said statement or has agreed to the rectifications prayer for by the opposite party/judgment debtor. On the other hand, by his conduct it is clear that he is not agreeable to such rectifications. 27. In that view of the matter, in the opinion of this Court it was not open for the learned executing Court to sit over the terms and conditions of the compromise in this manner and modify the same in terms of the prayer made by the opposite party/judgment debtor and consequently the compromise decree as well. The executing Court by doing so has not only reopened the compromise but also has gone behind the decree, may had modified it. This in my considered view is not permissible for an executing Court. The impugned order is vitiated by an error of jurisdiction. Such exercise of power under Section 151 CPC cannot be approved. It may be open for the party aggrieved to pursue any other remedy available in law if it seeks amendments of the terms and conditions of compromise, but such amendments cannot be effected by an executing Court under Section 151/152 CPC, once a decree on the basis of such compromise had been recorded by a competent Court. 28. For the forgoing reasons, the impugned order cannot be sustained in law and, is therefore, set aside. The revision petition is allowed. There would be no order as to costs.