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HIGH COURT OF CALCUTTA
Sinha
BELA DEBI - Appellant
Versus
BON BEHARY ROY - Respondent
Application 1001 Of 1938
Decided On : MAY 23, 1951
CIVIL PROCEDURE CODE - SECTION 152 - RECTIFICATION OF DECREE - SCOPE AND LIMITATIONS - ERRORS IN DEED - AMENDMENT OF DECREE AND DEED - LACHES.
Fact of the Case:
The petitioner sought to rectify a consent decree and agreement for sale, alleging errors in the description of the property. The original agreement for sale contained an incorrect schedule, which was repeated in the consent decree. The petitioner claimed that the correct schedule should be inserted, and a survey should be conducted to determine the boundaries of the property.
Finding of the Court:
The court held that the errors in the description of the property were not accidental slips or omissions that could be rectified under section 152 of the Civil Procedure Code. The court found that the mistake originated with the agreement for sale, which was executed long before the consent decree was passed. The court also held that it did not have the power to rectify errors in the deed itself, as this would require a suit under section 31 of the Specific Relief Act.
Issues: 1. Whether the errors in the description of the property were accidental slips or omissions that could be rectified under section 152 of the Civil Procedure Code? 2. Whether the court had the power to rectify errors in the deed itself?
Ratio Decidendi: 1. The court held that the errors in the description of the property were not accidental slips or omissions that could be rectified under section 152 of the Civil Procedure Code. The court found that the mistake originated with the agreement for sale, which was executed long before the consent decree was passed. The court also held that it did not have the power to rectify errors in the deed itself, as this would require a suit under section 31 of the Specific Relief Act. 2. The court held that it did not have the power to rectify errors in the deed itself, as this would require a suit under section 31 of the Specific Relief Act.
Final Decision: The court dismissed the petitioner's application for rectification of the consent decree and agreement for sale.
( 1 ) THIS is an application for an order that the schedule to the plaint in the suit, and the consent decree dated 5-6-1939, and also of the agreement dated 1-12-1933, be corrected, and/or amended, by inserting the correct schedule as mentioned in para. 20 of the petition. There is also a prayer that the Registrar be directed to appoint a Surveyor to survey the premises No. 69/l, Cossipore Road, Calcutta, after amendment and that he should be further directed to execute the conveyance in accordance with the correct schedule.
( 2 ) THE facts are briefly as follows:
( 3 ) THE defendant Bon Behari Roy is the owner of certain plots of land situated on the Cossipore-Road. On or about 1-12-1933, Roy executed an agreement for sale in favour of one Chandrika Prasad Gupta, in respeet of the plots of land which had been described in the agreement for sale in the following matter:"all that piece and parcel of land (which is at present covered with water) measuring about 10 cottabs of land (be it a little mere or less) bearing Municipal No. 69/1,. Cossipore Road (Baranagore) in the suburbs of Calcutta,. Holding No. 84, Division I Sub-Division II butted and bounded by on the north by Sristhidhar Lane, on the south by Girindranath Mukherjee Road, on the west by Mussamat Birajini's land, and Radheba Tauchha Bibi's land, paying Government revenue Rs. 2/4/11 per year in respect of the whole premises Holding No. 84. "
( 4 ) ON or about 6-8-1937, Chandrika Prasad Gupta assigned his right title and intere8t in the said agreement to Mussamat Bela Debi since deceased, who was the plaintiff in the suit. On or about 18-5-1938, Bela Debi filed this suit against Bon Behari Roy and Chandrika Prasad, for specific performance of the agreement for sale. It appears that two ladies, Sm. Nivanani Roy and Sm. Soilabala Mitra, claimed charges for maintenance on the property, and on or about 17-5-1939 they were added as parties to the suit, on the application of Bon Behari Roy.
( 5 ) ON or about 5-6-1939, a consent decree was passed in the suit. The provisions of the consent decree are briefly as follows:
( 6 ) THERE was to be a decree for specific performance in favour of the plaintiff; Boni Behari Roy was to sell to the plaintiff or her nominee, premises No 69/l, Cossipore Road, free from all incumbrances at Rs. 325 per cotta; the defendants Sm. Nivanani Roy and 8m. Sailabala Mitra relinquished their claims or charges which they might have had in respect of the property in suit; the land was to be surveyed by the defendant's surveyor in the presence of the engineer of the plaintiff, within a week from the date of the decree; and if any party failed to execute the conveyance, the Registrar would do it on his behalf.
( 7 ) IN July 1948 Bela Debi died. On 8-3-1949, there appears to have been an order for substituting Radha Krishna Shaw, her son, in her place, with leave granted to proceed with the execution.
( 8 ) IT will therefore be observed that although the decree for specific performance was made as far back as 1939, the plaintiff in this suit had not followed it up by paying the money and getting a conveyance for a period of nearly ten years. In the meantime, land at Cossipore had tremendously appreciated in value, and this, to my mind, is the real genesis of the dispute between the parties which had resulted in this application. In May 1947, there was some correspondence between the parties, and Roy wanted Rs. 3, 500 per cotta instead of Rs. 325 per cotta as contained in the terms of settlement.
( 9 ) ON or about 29 6 1949, Chandrika Prasad Gupta filed a suit being suit No. 2283 of 1949, against the petitioners and the other parties to this suit, for a declaration that it was he, who was entitled to the benefits of the agreement for sale, dated 1-12-1933, and also of the consent decree dated 5-6-1989. Bon Behari Roy did not appear in that suit. In that suit, Radha Krishna Shaw was restrained from getting a conveyance of the property. On or
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