NIYAMAT ALI MOLLA v. SONARGON HOUSING CO-OPERATIVE SOCIETY LTD. & ORS

Citation: [2007] 11 S.C.R. 346

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

NIYAMAT ALI MOLLA v. SONARGON HOUSING CO-OPERATIVE SOCIETY LTD. & ORS.pdf

Judgment text

\ i .... NIYAMAT ALI MOLLA v. SONARGON HOUSING CO-OPERATIVE SOCIETY LTD. & ORS. OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ) Code ofCivil Procedure, 1908; Ss. 151 & 152 and0. 21 Rr. 97 & 99: Amendment ofpleading/judgment/decree-Declaratory suit- Decreed by trial Court-On appeal, affirmed by High Court and Supreme Court-Execution ofdecree-Applicationfor amendment of plaintfor change in the description ofthe property filed by decreeholder-Rejectedby Executing Court-Affirmed by High Court-On appeal, Held: Section 152 CPC empowers the Court to correct its own error in a judgment, decree or orderfrom accidental slip/omission- ·~. Provision under Civil Procedure Code recognizes inherent power of Court which is not confined only to amend its own judgment etc. but also in general-Theprovision, however, should not be construed in a pedantic manner-Thus, a decree could be correctedby the Court in exercise ofits power either under s. 151 or s.

152 ofthe Code-By allowing the amendment defendant would not be misled nor any p substitution ofproperty would take place-Only because some blanks in the schedule ofthe property have been allowed to be filled in by such amendment, that by itselfmay not be a ground to deprive the respondentfrom fruit ofthe decree. Application for impleadment-Maintainability of-Held: Not maintainable, since applicants being notparties to suit, therefore, not bound by the decree. Doctrines: OPERATIVE SOCIETY LTD. ' "Doctrine ofactus curiae nemenim gravabit "-Applicability of Respondent No. 1 filed a suit for declaration and possession of certain property as also for damages in the Court ofCivil Judge. An ex-parte decree was passed against the appellant He did not prefer any appeal against the judgment and decree passed by the trial Court. The decree was affirmed by the High Court and also by this Coutt.

An 4 application for amendment ofthe plaint as also ofthe decree containing y' the Schedule describing the said property was, however, filed by the respondent before the Executing Court. An objection filed thereagainst by the appellant was rejected by the Court The said orderwas upheld by the High Court. Hence the present appeal. Later, in this appeal an application for impleadment has been filed by one 'N' on the ground that the he was not impleaded as a party in the proceedings although he had been in possession of the property in question. In the said application, it was claimed by the applicant that he had been in . possession ofthe said property. Respondent-Judgment creditor has also filed an application in the suit for grant ofinjunction. Appellant contended that having regard to the fact that the sisters of defendant No.

1 who were owners of the property had not been impleaded as parties in the suit and an ex parte decree was obtained by the respondent against the appellant, an irreparable injury would be caused to him ifthe application for amendment ofplaint is allowed. Respondents submitted that the court's power to amend a decree is not only confined to a clerical or arithmetical error but also the ~ - pleadings ofthe parties, ifa mistake had occurred in the pleadings and the same is continued. Dismissing the appeal and also application for impleadment, the Court HELD: 1. 1. Section 152 ofthe Code ofCivil Procedure empowers 14the Court to correct its own error in a judgment, decree ororderfrom any accidental slip oromission. The principle behind the said provision is actus curiae nemenim gravabit, i. e. , nobody shall be prejudiced by an act ofcourt. [Para 18) [356-E) 1. 2. Code ofCivilProcedure recognizes the inherent power ofthe court.

Itis notonly confined to the amendment ofthe judgment or decree as envisaged under Section 152 ofthe code but also inherent power in general. The courts also have duty to see that the records are true and present the correct state ofaffair. There cannot, however, be any doubt whatsoever that the court cannot exercise the said jurisdiction so as to review its own judgment. It cannot, however, exercise its jurisdiction when no mistake orslip occurred in the decree ororder. This provision should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the Court both inexercise ofits power under Section 152 as also under Section 151 ofthe Code ofCivil Procedure. Such a power ofthe court is well recognized. [Para 19) [356-F-H; 357-A) Samarendra Nath Sinha & Anr. v. Krishna KumarNag, [1967] 2SCR 18; Bela Debi v. Bon Behary Roy & Ors. , AIR (1952) Cal. 86; Lakshmi Ram Bhuyan v. Hari PrasadBhuyan & Ors. , AIR(2003) SC371; Pratibha Singh & Ors. v.

Shanti DeviPrasad& Anr. , AIR (2003) SC 643 and State ofPunjab v. Darshan Singh, AIR (2003) SC 4179, referred to. 1. 3. It is not a case where the defendants could be said to have been misled. Itis now welI settled that the pleadings ofthe parties are to be read in their entirety. They are to be construed liberally and notin a pedantic manner. It is also not a case where by reason of an amendment, one property is beingsubstituted by the other. Ifthe Court has the requisite power to make an amendment ofthe decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule ofthe property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit ofthe decree. [Para 26) [362-H; 363-A-B] ~·· 2.

So far as the application for impleadment ofthe applicants is ' concerned, applicants being not parties to the suit are not bound by the decree. They would, thus, be entitled to take recourse to such remedies +' ~ which areavailable to them in lawincludingfiling ofan application ~der Order21 Rules 97 and 99 ofthe Code ofCivil Procedure,ifany occasion arises therefor. As and when the said applicants take recourse to law, the same has to be determined in accordance with law. [Para 27] [363-D-EJ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 48i16 of 2007. 4 t From the Judgment and final Order dated 16. 05. 2006 ofthe High Court ofCalcutta in Revision Application being C. O. No. 1622 of2006. Chinmoy Khaladkar, Bimal Chakroborty and Rukhsana Choudμury for the Appellant. Jaideep Gupta, RaufRahim, Dipak Bhattacharya, S. Ray, B. K. Paul and Suruchi Agarwal for the Respondents. The Judgment ofthe Court was delivered by S. B. SINHA, J. I. Leave granted. 2. Respondent No.

I filed a suit for declaration and possession as also for damages in the Court ofCivil Judge (Senior Division) at Baruipur, 24-Parganas (South) in the State of West Bengal. An ex-parte decree was passed against the appellant herein who was arrayed as defen~ant No. 6 in the suit. In the plaint, the suit property was described as under: "That within the township area 2. 09 acres comprising ofR. S. Dag Nos. 340, 341, 342, 343 and 344 ofMouza Tegharia morefully ).. ~ described in the Schedule "A" hereunder written and hereinafter referred to as the suit property, is situated. " 3. Plaintiff claimed title over the suit property on the basis of purchases made under two registered deeds of conveyances dated 27. 1. 1968 comprising of 12 shares of Plot No. 340, 341, 342 and 343 ofMouza Tegharia admeasuring 1. 39 acres from defendant No. l anp his - I three sisters.

However, in the Schedule of Property, described in the schedule to the plaint, it was stated : "All that acres of land now developed for Housing Township •. i . ,. -(' appertaining to Rs. Dag No. under Khatian Nos. of Mouza Tegharia, J. L. No. 6, lying and situate within Sonargaon Park, P. S. Sonarpore, District South 24 Parganas (South). " 4. A decree was passed wherein again the same Schedule of Property was described as the property involved in the suit. It was directed: ~ "The plaintiffdo get a decree for declaration oftitle and permanent iajunction against the defendants in respect ofthe suit property. 1 It is declared that the plaintiffhas right, title and interest in the suit property. Defendants are restrained by an order ofpermanent injunction ' from disturbing or interfering with the peaceful possession ofthe plaintiff over the suit property in any way or in any manner whatsoever.

The other prayer ofthe plaintiffis refused in view of my discussion made in the body ofjudgment. " +-· 5. Appellant herein did not file any written statement in the said suit. He, however, examined himselfas a witness. He did not prefer any appeal against the said judgment and decree. The said decree indisputably has been affirmed upto this Court. 6. An application for amendment ofthe plaint as also ofthe decree containing the Schedule describing the said property was, however, filed on 27. 6. 2000, inter alia, stating: "That both parties went on trial and adduced both oral and i-documentary evidence in respect ofthe suit property and there was never any dispute as to the identity ofthe suit ofthe suit property. That at the time ofdrafting ofthe plaint through inadvertence the total area of the Land, R. S. Plot Number and Khatian Number have not been mentioned in the Schedule of the Plaint through inadvertence. +, That it is an accidental error.

~ That it is a clear case ofmisdescription ofthe suit property and no prejudice will be caused to the defendant ifthe plaint and the decree are amended at this stage. " 7. On the said averments, the proposal for amendment which was made is as under : "In the Schedule ofthe Suit Property described in the plaint in the ~ 1st line after the word "All that" the figure "2. 09" shall be inserted. 7 In the schedule ofthe suit property described in the plaint in the 2nd line after the word "R. S. Dag Number" the following plot number 340, 341, 342, 343 and 344" shall be inserted. In the schedule ofthe suit property described in the plaint in the 3rd line after the word "Khatian Numbers" following Khatian Number shall be inserted "80, 310, 83". " 8.

An objection was filed to the said application for amendment by the appellant, inter alia, contending : "Whereas after decree in the suit, plaintifffiled an application under Section 151 ofCPC stating that the plaintiffclaimed title on the basis of two deeds of conveyances by purchase from heir of Dilbahar Molla and Malekjan Bibi wife ofDolbahar Molla with the prayer to add different Schedule ofproperty with a new case, which is not permissible in law. As such plaintiffs application is liable to be dismissed summarily. " 9. It was urged that the application for amendment, ifallowed, would __r give rise to substitution ofone property in place ofanother, particularly, having regard to the change in the J. L. number. 10. The said objection ofthe appellant was, however, rejected by the learned Executing Court. The said order has been upheld by the High Court. ,.. ;+- 11. Mr.

Chinmoy Khaladkar, learned counsel appearing for the appellant, would submit that having regard to the fact that the sisters of the defendant No. I who were owners of the property had not been ,,.. -( impleaded as parties in the suit and an ex parte decree was obtained by the respondent against the appellant herein, an irreparable injmy would be caused to him ifthe application for amendment is allowed. 12. Mr. Jaideep Gupta, learned senior counsel appearing on behalf ofthe respondents, on the other hand, submitted that the court's power to amend a decree is not only confined to a clerical or arithmetical error but also the pleadings of the parties, if a mistake had occurred in the tpleadings and the same is continued. Reliance in this behalfhas been placed ~ on Bela Debi v. Bon Behary Roy & Ors. , AIR(l 952) Cal. 86.

It was furthermore urged that the suit being for enforcing a sale deed, the Dag and Khatian number stated in the plaint was determinative as regards identification ofthe property. J. L. number, it was urged, has nothing to do with the identification of the property or the village in which it is situated. It was pointed out that the plots in question had also been ordered to be mutated in favour of the respondent. Even an Advocate- Commissioner had also been appointed who has also submitted a report. 13. In this appeal an application for impleadment has been filed by +one Niyamat Ali Molla. It has been contended therein that the said applicant was not impleaded as a party in the proceedings although he had been in possession ofthe property in question. It was submitted that the applicant has been seriously prejudiced by reason ofthe impugned order as he had acquired lawful interest in J. L. No. 52 appertaining to R. S. Khatian No. 80, R. S. Dag No.

340, 341 and 342 which had been recorded in his name in the finally published revisional survey settlement record ofrights. In the said application, it has also been claimed that the applicants had been in possession ofthe said property. -~- 14. Respondent is said to have purchased the property by reason of two sale deeds of sale dated 27. 1. 1968. Properties described in the first deed ofsale are as under : " 'ka' schedule particulars ofthe property +- .. ; \ 1. In the District of24 Pargana is under Police Station and subregistry office - Sonarpur, Pargana - Medanmalla at Mouz. a Teghari, village, included in Touzi No. 294 having Ryoti -~ 1. In the District of24 Parganas under Police Station and sub registry office - Sonarpur, Pargana - Medanmalla, at Mouza - Teghari, village, included in Touzi No. 294 Re. Sur No. 126, J. L. No. - 52 having Ryoti Mokarari right under Khatian No. 80, out of 1. 36 decimals ofland in ourjama bearing annual rent of Rs.

5-10-10 pies 34 decimals of land bearing proportionate rent of Re. 1. 42 paise owner - West Bengal Govt. There is no other cosharer. In dag no. 340 three hundred forty . 79 decimals N - other Mouza . , -{ ...... _ ,;. In dag No. 342 three hundred forty two . 24 decimals N - Farez. Khatian No. - 81 In dag no. 341 three hundred forty one . 33 decimals N -Alta Bibi Total 1. 36 one Acre thirty six decimals Out ofthat in 4 annas share . 34 thirty four decimals ofland. 2. In the said Police Station, at the said Mouza, included in the ~ said Touzi under the said owner, having Ryot Stitiban Right, under part Khatian 310 from Khatian No. 200 twelve decimals of land bearing annual rent of . 25 paise. There is no other cosharer. In dag No. 343 three hundred forty three .

49 decimals Danga land out ofthat in 4 annas share 12 decimals ofland under two khatians total 46 decimals forty six decimals Particulars ofproperty mentioned in Schedule 'kha' In the District of24 Parganas, under Police Station and sulrregistry - Sonarpur, Pargana - Medan Malla, at Mouza - Teghari village included in Touzi No. - 294, J. L. No. 52 Re. Sur No. 126, having Korfa possessory Right, in one jama under Khatian No. - 83, . 24 twenty four decimals ofland bearing annual jamaofRs. 14. 00 owner West Bengal Government. There is no other cosharer. (- In dag No. 344 three hundred forty four Danga 24 twnty four " i-decimals N. Sudhir and others. In two schedules total land . 70 seventy decimals. ! 1--- The Society will bear the cost ofRegistration ofthis Deed ofSale. " 1- 16. Respondent herein had filed an application in the said suit for ,. ,_, injunction. An affidavit in opposition thereto was filed therein by the ~ ' defendant No.

4 stating it was stated: ~ ' "That before dealing with the plaintiff's allegation paragraphwise, ; these defendants state the facts ofthis case as follows : (a) That . 79 dee. in <lag No. 340, . 33 dee, in Dag No. 341, . 24 dee, in Dag No. 342 . 49 dee in Dag No. 343 originally belonged to Alta Bibi and the same has been correctly recorded in C. S. R. 0. R. from her the same was inherited by Bibijan Bibi wife ofDilbahar Molla, During his life time said Bibijan -+ Bibi transferred . 79 dee in Dag No. 340, . 24 in Dag No. 342 ! and . 33 in Dag No. 341 by an oral Heba in favour ofDilbahar Molla and in terms with the said oral Heba, the possession of the said properties were delivered in favour ofsaid Dilbahar Molla, remain in possession of the said properties as the absolute owner thereofdenying everybody else's right, title and interest thereon. In the R. S. R. O. R. , the said Dilbahar Molla has been recorded as Rayat Mokrari Sattiban. In respect of . 49 dee in Dag No.

343, said Dilbahar inherited from said Bibijan Bibi his wife on her demise 1/4th share under the -t Mohammedan law and thus said Dilbahar became owner in respect of . 12 dee. The same is also correctly recorded in R. S. R. O. R. (b) That in Dag No. 344 said Dilbahar Molla had . 24 dee, land and the same is also correctly recorded in R. S. R. O. R. (c) That after the demise ofBibijan Bibi, the first wife ofDilbahar, said Dilbahar married Malekjan Bibi and by a registered deed of conveyance said Dilbahar Molla transferred . 70 dee. in r- favour ofhis wife Malekjan Bibi out ofhis total property, i. e. - . 79 dee in Dag No. 340, . 33 dee in Dag No. 341, . 24 dee in Dag No. 342, . 12 dee in Dag No. 343 and . 24 dee in Dag No. 344 total being 1. 72. rr4 (d) Subsequently, said Dilbahar Molla died leaving behind one son !! I( and two daughters through the first wife, Second wife and three ,J- sons and two daughters through the second wife. Thus out of remain 1.

02 dee ofDilbahar, the second wife Malekjan Bibi had 8th each son had 7/48th and each daughter had 7/96. The cosharers ofthe said property have never partitioned the same ,4 [2007] 11 S. C. R. 'f" and they are in joint possession thereof. " 17. What was, therefore, denied and disputed was the claim ofthe plaintiffs-respondents in respect ofpurchase ofthe property from Niyamat Ali and others. Similar statements were also made in the written statement From a perusal ofthe judgment passed by the Assistant District Judge, 24 Parganas, Baruipur in Title Suit No. 144 of 1993, it appears that the possession and title ofdefendant No. 4 had been taken into consideration therein. No issue was framed in regard to identification ofthe said property. "! '' The learned Judge held : "On perusal ofthe same, I am ofthe view that the plaintiffhas title as well as possession in the suit property and the defendants have failed to prove their possession and title in the suit property.

In view of the documentary evidence adduced by the plaintiff, the R. S. R. O. R. appears to be erroneous and baseless. The defendants have no right to interfere with the peaceful possession ofthe plaintiff over the suit property. To my mind, it is a fit and proper case where the plaintiffcan get decree for declaration oftitle and permanent injunction and nothing more. " 18. Section 152 ofthe Code ofCivil Procedure empowers the Court to correct its own error in ajudgment, decree or order from any accidental slip or omission. The principle behind the said provision is actus curiae nemenim gravabit, i. e. , nobody shall be prejudiced by an act ofcourt. 19. Code of Civil Procedure recognises the inherent power ofthe court. It is not only confined to the amendment ofthejudgment or decree 'ias envisaged under Section 152 ofthe code but also inherent power in general. The courts also have duty to see that the records are true and present the correct state ofaffair.

There cannot, however, be any doubt whatsoever that the court cannot exercise the said jurisdiction so as to ~ review itsjudgment It cannot also exercise itsjurisdiction when no mistake or slip occurred in the decree or crder. This provision, in our opinion, should, however, not be construed in a pedantic manner. A decree may, ~ therefore, be corrected by the Court both in exercise ofits power under Section 152 as also under Section 151 of the Code ofCivil Procedure. t- ~1 Such a power ofthe court is well recognized. 20. In Samarendra Nath Sinha & Anr. v. Krishna Kumar Nag, [1967] 2 SCR 18, this Court held : "Now it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error . B arising from an accidental slip or omission and to vary its judgment -+ so as to give effect to its meaning and intention. "Every court," said "'( Bowen L. J. in Mellor v. Swira [30 Ch.

239] "has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the court so as to carry out its intention and express the meaning ofthe court when the order was made. " In Jan/drama Iyer v. Nilakanta Iyer AIR (1962) SC 633 the decree as drawn up in the High Court had used the words "mesne profits" instead of"net profits". In fact the use ofthe words "mesne profits" came to be made probably because while narranting the facts, those words were inadvertently used in the judgment. " 21. The question came up for consideration before the Calcutta High Court in Bela Debi (supra), wherein it was held "It will thus be seen that there is a diversity ofjudicial opinion as to how far a Court can go in rectifying its own decree.

Where, of course, the amendment is in order to carry out its own meaning, there is no doubt about the power ofthe Court in effecting such corrections (see In re St. Nazaire Co. , (1879) 12 ch. D. 88; ,,. Preston Banking Go. v. Allsop, (1895) 1 Ch. 141). Nor can it be disputed that it has power to rectify mistakes which are of ministerial kind (see Mellor v. Swire, (1885) 30 Ch. D 239). But the difficulty arises when it is found that the mistake is not one of the Court but is a mistake of the parties themselves. Mistakes in the description ofproperties in deeds, is illustrative ofthis kind of mistake. It is the paiiies who have made the mistake, and the. }mistake is continued in the pleadings and the decree. According to one view, section 152 is confined to acts of the Court and, -<(' -::: therefore, mistakes ofparties made in the pleadings or deeds and d9cuments evidencing the transaction cannot be corrected {Ramchander Sarup v. Mazhar Hussain, A. I. R. 6 (1919) ALL 264).

The second view is that under this section and section 151, plaint, judgment and decree all can be amended (see Shiam Lal v. Mt. Moona Kuar, A. LR. 21 (1934) Oudh 352 at p. 354; Ram Chandra v. Jamna Prasad, A. I. R. (22) 1935 Oudh 92). A third view is that it is permissible under such circumstances to amend the decree and it is unnecessary to amend the plaint (Badri Pande y v. Chhangur Pandey, A. I. R. 20 [1933] All 102; Jamini Bala Biswas v. Bank ofChettinad Ltd, A. I. R. (22) 1935 Rang. 522 at p. 523). Lastly, there is the view, which I have already noted, which goes to the extent of holding that the Court cannot only rectify pleadings and decrees but rectify documents evidencing the transactions themselves, upon which the suit was founded. I shall now state, what in my opinion, is the true meaning ofsection 152, Civil P. C. I am not in favour ofgiving a narrow construction to section 152.

I do not agree that section 152 must necessarily f-· refer to an 'accidental slip or omission' of the Court itself, or its ministerial officers. It does not say so in the section itself, and should not be interpreted as such. Where it is the Court's o~ accidental slip or omission, or that ofits ministerial officers, there can be no doubt that the section applies. But it gives power to rectify any accidental slip or omission in a judgment, decree or order, and might include an accidental slip or omission traceable to the conduct of the parties themselves. But it must be an 'accidental slip or omission'. A mistake made by the parties in a, deed upon which ithe suit is founded, and repeated in the judgment, decree or order, may or may not be an 'accidental slip or omission. ' Where it is clear, that such is the case, then I do not see why the Court cannot set it right.

In doing so, what is going to be rectified is, the judgment decree or order, and it is not at all necessary to rectify either the pleadings or the deed. In making such corrections, however, the ~ . Court can only proceed on the footing that there could be no reasonable doubt as to what it really intended to say in its judgment t- decree or order. It cannot go into any disputed questions. Ifthere is a particular description ofa property in a deed, and a suit has been instituted on the strength ofthat description, and a decree passed, it is not permissible in proceedings under section 152 to go into disputed questions as to what property was intended to be dealt with, by the parties in the deed. I agree with Gentle C. J. that such a question can only be dealt with, in appropriate . ; proceedings under the Specific Relief Act (see T. M. y Ramakrishnan Chettiar v. G. Ramakrishnan Chettiar, A. I. R. 35 (1948) Mad. 13).

But it may so happen that the mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed its judgment, decree or order. For example, suppose in a conveyance a property is described as '24 Chowringhee Road, Bhawanipur'. It would be clear to everybody what property was meant, and it cannot be . seriously doubted that in abating that the property was in 'Bhawanipur', the parties had committed an 'accidental slip or ' ~ omission'. In such a case, I would not go to the extent of holding that the Court has no power to correct the judgment, decree or order which has repeated the. mistake. In doing so, the Court need not correct the pleadings or the document but its own decision. In my opinion, it is not necessary in such a case to amend the ..... pleadings or to rectify the deed, therefore, no question arises as to whether the Court has power to do so.

It is, however, quite clear that such cases must be of rare occurrence, and the scope thereof is severely limited. The power cannot be extended to the resolving ofcontrovertial points, and a decision as to what the , _}parties intended or did not intent to do. Apart from this exceptional case, I hold that the Court cannot correct errors anterior to the proceedings before it. For such a purpose, the proper proceeding is by way ofa suit under section 31, Specific ReliefAct. To this extent, I ~gree respectfully with the view enunciated by Gentle C. J. in T. M Ramakrishnan Chettiar v. G. Radhakrishnan ,~ Chettiar, A. I. R. 35 (1948) Mad. 13 and the view expressed by Young J. in Shujaatmand Khan v. Gobind Behari, A. I. R. 21 (1934) ALL. 100 (2). Applying these principles to the facts ofthis case, I think that the rectification asked for is impossible.

Ifthere has been a mistake in the original agreement it is a mistake which is fundamental, and it is impossible without going into evidence, to decide as to what the parties meant. There are facts in favour of the contention put forward by either party and I cannot describe it as an error (ifthere is at all any error) as can be called "an accidental slip or omission" as contemplated in section 152. In any event, such slips or omissions cannot be rectified in proceedings under section 152 or even under S. 151 of the Code. " 22. We, with respect, agree with the aforenoticed view. 23. In Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan & Ors.

, AIR (2003) SC 371, this Court opined that when a decree had been drawn up by the High Court, the Court can take recourse to Section 152 ofthe Code stating : "In our opinion, the successful party has no other option but to have recourse of Section 152 ofCPC which provides for clerical or arithmetical mistakes injudgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the Court either on its own motion or on the ... application ofany ofthe parties. A reading ofthe judgment ofthe High Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention ofthe Court by couching the reliefs to which the plaintiffs were entitled in the event oftheir succeeding in the suit. Section 152 enables the Court to vary its judgment so as to give effect to its meaning and intention.

Power ofthe Court to amend its orders so as to carry out the intention and express the meaning ofthe Com1 at the time when the order was made was upheld by Bowen L. J. in re Swire; Mellor v. Swire, (1885) 30 Ch, D. 239, subject to the only limitation that the amendment can be made without in justice or on terms which preclude injustice. Lindley L. J. observed that ifthe order ofthe Court, though drawn up, did not express the order as intended to be made then "there is no such magic in passing and entering an order as to deprive + ~ "). the Court ofjurisdiction to make its own records true, and ifan order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to House ofLords by way ofappeal. " 24. The same Bench again in Pratibha Singh & Ors. v. Shanti Devi Prasad & Anr.

, AIR (2003) SC 643 held : -+ y "When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking ofprovisions contained in Order 7 Rule 3 ,. and Order 20 Rule 3 ofthe CPC is capable ofbeing cured. After all a successful plaintiff should not be deprived ofthe fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances of each case -which ofthe two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits ofthe case, it may be corrected under Section 152 ofthe CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description ofdecretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction ofdecree within the meaning of Section 47 CPC.

A decree ofa competent Court should not, as far as practicable, be allowed to be defeated on account ofan accidental slip or omission. In the facts and circumstances ofthe present case we think it would be more appropriate to invoke Section 47 ofthe CPC. " -( 25. In State ofPunjab v. Darshan Singh, AIR (2003) SC 4179, however, it was held : _. "Section 152 provides for correction ofclerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein ... _ from any accidental slip or omission. The exercise ofthis power ' contemplates the correction of mistakes by the Court of its Jo ministerial actions and does not contemplate ofpassing effective + ~ judicial orders after the judgment, decree or order.

The settled ·-<' position oflaw is that after the passing ofthe judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the tribunal cannot, on mere change ofview, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions odimitations provided therein. t· The powers under Section 152 of the Code are neither to be "r equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise ofinvoking after the result ofthe judgment earlier rendered, in its " entirety or any portion or part ofit. The corrections contemplated are ofcorrecting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order.

The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the }first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect ofsuch review. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151and152 of Code even after passing of effective orders in the lis pending before them. No Court can, under the ~. cover ofthe aforesaid sections, modify, alter or add to the terms of its· original judgment, decree or order. Similar view was expressed by this Court in Dwaraka Das v. State ofMadhya Pradesh and Anr. , and Jayalakshmi·Coelho v.

Oswald Joseph Coelho, [2001] 4 SCC 181. " - 26. It is not a case where the defendants could be said to have been ....... \ misled. It is now well settled that the pleadings ofthe parties are to be read in their entirety. They are to be construed liberally and not in a ~ ')pedantic manner. It is also not a case where by reason ofan amendment, one property is being substituted by the other. Ifthe Court has the requisite power to make an amendment ofthe decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body ofthe plaint have sufficiently described the suit lands. , Only because some blanks in the schedule ofthe property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. Ifthe appellant herein did not file any written ~ statement, he did so at its own peril. Admittedly, he examined himselfas' y a witness in the case.

He, therefore, was aware ofthe issues raised in the suit. It is stated that an Advocate-Commissioner has also been appointed. We, therefore, are ofthe opinion that only because the JL numbers in the, schedule was missing, the same by itselfwould not be a ground to interfere with the impugned order. 27. So far as the application for impleadment ofthe applicants are, concerned, they being not parties to the suit are not bound by the decree. They would, thus, be entitled to take recourse to such remedies which ---4 are available to them in law including filing ofan application under Order 21 Rules 97 and 99 ofthe Code ofCivil Procedure, ifany occasion arises therefor. As and when the said applicants take recourse to law, the same has to be determined in accordance with law. 28. This appeal and the application for impleadment are dismissed accordingly.

It would, however, for the Executing Court to consider at the time ofexecution ofthe decree to ascertain whether there exists any difficulty in executing the decree or not. In the facts and circumstances of · __/- the case, however, there shall be no order as to costs. S. K. S. Appeal and application for impleadment dismissed.