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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mian Jalal-ud-Din, J.
Amma Dar - Appellant
Versus
Aziz Dar - Respondent
Civil Revision No. 61/1976
Decided On : 06 June, 1977
CIVIL PROCEDURE CODE - SECTIONS 152/151 - RECTIFICATION OF MISTAKE - SCOPE - COURT'S INHERENT POWER - APPLICATION OF SECTION 152 TO ERRORS IN PLEADINGS - SURVEY NUMBER MENTIONED INCORRECTLY IN PLAINT - RECTIFICATION OF MISTAKE IN DECREE AND JUDGMENT - COMPETENCY OF REVISION.
Fact of the Case:
In a suit for declaration, the parties entered into a compromise and a decree was passed accordingly. However, a mistake was noticed in the description of a portion of the land, where Survey No. 70 was wrongly mentioned instead of Survey No. 465. The plaintiff-decree holder sought correction of this mistake under Sections 152/151 of the Code of Civil Procedure (CPC). The defendant-appellant resisted the application, arguing that it did not lie as it sought to amend a decree in respect of a portion of land not included in the suit.
Finding of the Court:
The court held that the revision petition was competent as the order rectifying the mistake had not merged in the amended decree and the petitioner was not assailing the amended decree and judgment but the order itself passed under Sections 152/151 CPC. The court further held that the court below was competent to rectify the mistake in the judgment and decree which had crept in due to the mistake in the plaint itself, as Section 152 CPC is not limited to errors or omissions in the judgment, decree, or order, but also applies to errors and omissions made in the pleadings of the parties which are copied in the judgment and decree.
Issues: 1. Whether the revision petition was competent against the order rectifying the mistake under Sections 152/151 CPC? 2. Whether the court below was competent to rectify the mistake in the judgment and decree which had crept in due to the mistake in the plaint itself?
Ratio Decidendi: 1. The court held that the revision petition was competent as the order rectifying the mistake had not merged in the amended decree and the petitioner was not assailing the amended decree and judgment but the order itself passed under Sections 152/151 CPC. 2. The court held that the court below was competent to rectify the mistake in the judgment and decree which had crept in due to the mistake in the plaint itself, as Section 152 CPC is not limited to errors or omissions in the judgment, decree, or order, but also applies to errors and omissions made in the pleadings of the parties which are copied in the judgment and decree.
Final Decision: The court dismissed the revision petition, holding that the court below was competent to rectify the mistake in the judgment and decree and that the rights of the petitioner in 12 Marlas of land recorded in Survey No. 465 would remain unaffected by the impugned order.
2. It appears that in a suit for declaration brought by the plaintiff-respondent against the appellant in respect of the suit land, the parties entered into compromise. A decree was passed on the basis of compromise. When the judgment and the decree were prepared a mistake was noticed therein by the respondent as regards a portion of land wrongly shown in Survey No. 70. Both in the plaint and in the compromise there was mis-description of Khewat No. 70 as survey No. 70 whereas in fact the actual survey No. was 465 in Khewat No. 70. The plaintiff decree holder thereupon sought correction of this mistake both in the judgment and the decree. This application was resisted by the appellant on several grounds, inter-alia, that the application under sections 152/151 C.P.C. did not lie in as much as the respondent, did not seek the correction of any clerical mistake but wanted amendment of a decree in respect of a portion of the land purported to have been recorded in Survey No. 70 that did not figure at all in the suit. The learned Munsiff on consideration of the matter allowed the application and ordered the rectification of the mistake. Aggrieved by this order, the defendant has come up in revision before this court.
3. A preliminary objection has been raised by Mr. Trisal, appearing for the respondent that the revision is not competent. The argument is that the order rectifying the mistake has merged in the amended decree and, therefore, the remedy available to the petitioner is to file an appeal against the amended decree and not come in revision before this court. In support of this view reliance has been placed on A.I.R. 1950 Madras, page 15 and 578.
4. This preliminary objection was met by Mr. K.N. Raina learned counsel for the petitioner by submitting that the order passed by the learned Munsiff being an order under Sections 152/151 C.P.C. it is not appealable. He has not come in revision against the amended decree but against the order allowing the application under Sections 152/151 C.P.C. which order is revisable and not appealable.
5. The proposition debated before me, it seems, has been the subject matter of some of the decisions of the Indian High Courts. The Madras High Court in A.I.R. 1950 Madras, 15 and also at page 578, has, no doubt, taken the view that when an application under section 152 C.P.C. is allowed and the amended decree is drawn up, then an appeal should be filled against the amended decree and the revision is not competent. In the words of Vishwanatha Sastri J. an order amending a decree so as to bring it into conformity with the judgment is not revisible under Section 115 of the Code as an alternative remedy in the form of an appeal against the amended decree is available. Again Horwill J in A.I.R. 1950 Madras, 15, observed that where the judgment is amended to bring it into conformity with its earlier portion and decree is also amended and brought into conformity with the amended judgment, no revision lies against the amending order as an alternative remedy of appeal against the amended decree is available. The revision petition also cannot be converted into an appeal and that the remedy of the aggrieved party is by way of filling a revision petition and not an appeal. As against this the Aallahabad High Court in RughNath Dass Versus Raj Kumar, 7, Allahabad, 276, has opined that the revision is competent. In that case Mahmood J held that the amending order would not amount to decree. He expressed the opinion that a revision petition was competent. The matter again came up for consideration before a Full Bench of the same High Court in 7, Allahabad, 876, in which the view of Mahmood J was accepted. The same view has, however, been held by the High Courts of Calcutta, Allahabad, and Bombay, that r
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