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2015 DIGILAW 700 (ORI)

Jayanta Kumar Rath v. Pravas Kumar Rath

2015-12-14

A.K.RATH

body2015
ORDER : A.K. Rath, J. In this petition under Article 227 of the Constitution of India, the petitioners challenge the order dated 24.1.2003 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Misc. Case No.316 of 1997. By the said order, learned trial court rejected the application of the plaintiff for correction of compromise decree dated 30.6.1991. 2. The original petitioner along with opposite parties 3 to 5 instituted a suit for partition impleading opposite parties 1 and 2 as defendants in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack, which was registered as T.S No.435 of 1988. The suit was ended in compromise on 30.6.1991. While the matter stood thus, the petitioner-plaintiff no.2 filed an application under Section 152 CPC for correction of the decree. It is stated that a large number of properties was the subject-matter of the suit. While drafting the compromise petition, certain mistakes were crept in. The allotment of land at Puri town had been disputed on the ground that Khata No.298 had been inadvertently mentioned as 321. Though he got an area of Ac.0.073 dec. of land out of Plot No.68, Ac.0.185 dec. out of Plot No.69, but the same had been mentioned as Ac.0.195 dec. and Ac.0.168 dec. respectively. Similarly though he got Ac.0.87 dec. of land out of Plot No.70, the said plot had been totally omitted from Schedule Ka Lot-1. That apart, defendant no.2 has got only Ac.0.03 dec. of land out of Plot No.70, but inadvertently the entire plot had been allotted in his favour. Further, though he got an area of Ac.0.182 dec. of land out of Plot No.68, the same has been mentioned as Ac.0.101 dec. It is further stated that the respective allotments of the properties had been shown in sketch map marked in blue colour for the plaintiff and the red colour for defendant no.2, which was a part and parcel of the decree. The boundary mentioned in allotment sheet, its area and sketch map do not tally. With the factual scenario, the application was filed. 3. Defendant no.2 filed an objection to the same contending, inter alia, that the petition is not maintainable. It is stated that there is no clerical or arithmetical error in the decree. The boundary mentioned in allotment sheet, its area and sketch map do not tally. With the factual scenario, the application was filed. 3. Defendant no.2 filed an objection to the same contending, inter alia, that the petition is not maintainable. It is stated that there is no clerical or arithmetical error in the decree. Further, pursuant to the final decree, he alienated the entire land in favour of Namita Dash and Sukanti Jagdev, who have not been made parties to the petition. It is further stated that in the first petition, the petitioner claimed an area of Ac.0.62 dec. out of Plot No.70, but in the subsequent petition, he claimed an area of Ac.0.87 dec. from the said plot. In the suit bearing C.S. No.142/2001 of the court of the learned Civil Judge (Senior Division), Puri, he claimed Ac.0.082 dec. from the said plot. With regard to Plot No.69, initially the petitioner was silent, but in the subsequent petition, he claimed an area of Ac.0.185 dec. The specific case of the defendant no.2 is that the total area of the petitioner as per spot verification mentioned in the compromise petition as well as in the sketch map is Ac.0.345 dec., whereas the area allotted to him is Ac.0.185 dec. The petitioner has sought for amendment in respect of lands in Mouza-Patapur, which he abandoned later on. It is further stated that the contents of the compromise petition is fully correct but not the map. By order dated 24.1.2003, the learned trial court dismissed the application. 4. Heard Mr. S.P. Mishra, learned Senior Advocate for the petitioners and Mr. A.K. Mohapatra-I, learned counsel for the opposite party no.2. 5. Mr. Mishra, learned Senior advocate for the petitioners, argued with vehemence that the boundary mentioned in the allotment sheet, its area and the sketch map do not correspond to each other, which renders the decree ineffective and the same requires correction of the order. Criticising the order, he submitted that the conclusion of the learned trial court that the mistake committed by the petitioner cannot be termed as clerical errors, is contrary to the materials on record and, as such, the learned trial court has committed material irregularity in exercising the jurisdiction. He further submitted that under Order 7, Rule 7 CPC, the description of the properties, which is the subject-matter of the suit, must be sufficient to identify it. He further submitted that under Order 7, Rule 7 CPC, the description of the properties, which is the subject-matter of the suit, must be sufficient to identify it. If there is a dispute between the plot number, khata number and boundary, the latter will prevail. According to him, in order to quietus the issue, learned trial court ought to have exercised its power under Section 152 CPC to amend the decree. 6. Per contra Mr. Mohapatra-1, learned counsel for the opposite party no.2, supported the impugned order passed by the learned trial court. He cited the decision of this Court in the case of Papu Khan v. Fatima Babi and others, AIR 1973 Orissa 235 and the decision of the apex Court in the case of Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. & others, AIR 2008 SC 225 . 7. The seminal point that hinges for consideration of this Court is as to whether the compromise decree can be corrected by the court in exercise of the power under Section 152 CPC when the mistake has been committed by the parties ? 8. In Papu Khan (supra), this Court held that when there is no clerical or arithmetical mistake or error arising from any accidental slip or omission, Section 152 CPC has no application. 9. In Niyamat Ali Molla (supra), the apex Court held that a decree may be corrected by the court both in exercise of its power under Section 152 CPC as also under Section 151 CPC. 10. In Bishnu Charan Das v. Dhani Biswal and another, AIR 1977 Orissa 68, this Court held that if the decree is not in conformity with the judgment it must be allowed to be amended under Sections 152 and 151 CPC to bring it in line with the judgment and that in exercising the power under Sections 151 and 152 CPC the Court merely corrects the mistake of its ministerial officer by whom the decree was drawn up. Paragraph-4 of the report is quoted hereunder: "Section 152, CPC is based on two important principles. The first of them is the maxim that an act of the Court shall prejudice no party and the other that the Courts have a duty to see that their records are true and that they represent the correct state of affairs. Paragraph-4 of the report is quoted hereunder: "Section 152, CPC is based on two important principles. The first of them is the maxim that an act of the Court shall prejudice no party and the other that the Courts have a duty to see that their records are true and that they represent the correct state of affairs. In proceedings for amendment of a decree, the inquiry is confined only to seeing whether the decree correctly expresses what was really decided and intended by the Court. Order 20, Rule 6 clearly provides that the decree shall agree with the judgment. If the decree is not in harmony with the judgment the Court has no alternative but to rectify the mistake which has been committed. As the power to amend is exercised for the promotion of justice, it should be exercised liberally so as to make the decree conform to the judgment on which it is founded. I am fortified in this view by an earlier decision of this Court reported in AIR 1966 Ori 225 , (Sagua Barik v. Bichinta Barik) wherein it was held on a review of the authorities that if the decree is not in conformity with the judgment it must be allowed to be amended under Sections 152 and 151 to bring it in line with the judgment and that in exercising the power under Sections 151 and 152 the Court merely corrects the mistake of its ministerial officer by whom the decree was drawn up." 11. The case of the petitioners may be examined on the anvil of the decisions cited supra. On a bare perusal of Section 152 CPC, it is evident that 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 on its own motion or on the application of any of the parties. If clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from the accidental slip or omission has been committed by the court, then the court may correct the same on its own motion or on the application of any of the parties. It does not comprehend the correction of any error on the part of any of the litigating parties. The error must be on the part of the court. It does not comprehend the correction of any error on the part of any of the litigating parties. The error must be on the part of the court. In an application under Section 152 CPC, the Court cannot ascertain the intention of the parties making the compromise and filing the application. The said section cannot be invoked for the purpose of explaining as to what was the intention of the parties in arriving at the compromise. Since the parties have filed a compromise petition admitting the contents to be correct and thereafter the court has recorded the same, Section 152 CPC cannot be pressed into service to correct the compromise petition and decree. 12. Resultantly the petition sans merit deserves dismissal. Accordingly, the same is dismissed. No costs. Petition dismissed.