Biharilal and others vs Sudha Yadav and others

Sanjay Yadav, J.—Order dated 15.3.2011 passed by Civil Judge Class II in MJC No. 1/2011 is being assailed vide this petition under Article 227 of the Constitution of India; whereby application under Sections 152 and 153 of the Code of Civil Procedure, 1908 seeking amendment in judgment and decree dated 8.9.2009 has been rejected. The suit in question was filed by the respondents herein seeking declaration of title and possession of the property bearing NB No. 27 Plot No. 37/3 and 39/1.

The suit was compromised and an order and decree on 8.9.2009 was passed in the following term:

After the suit was decreed an application under Sections 152 and 153 CPC came to be filed seeking amendment in the judgment and decree on the ground that since the trial court lacked pecuniary jurisdiction it ought not have passed compromise decree qua payment of Rs. 5,00,000/- As also on the ground that, the decree was not drawn as per compromise arrived at.

The trial court on a finding that there is no clerical or arithmetical mistake in the judgment and decree, rejected the application by impugned order. Rightly so, because Section 152 CPC provides that clerical or arithmetical mistake in judgments, decree or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. The provision thus envisages correction of clerical, arithmetical or accidental slips in the judgment and decree only and not the corrections of error the judgment and decree as for that, the forum lies elsewhere.

In Master Construction Co. (P) Ltd. Vs. State of Orissa and Another, , it is observed that an arithmetical mistake is a mistake of calculation, while clerical mistake is of writing or typing. An accidental slip or error is an error due to a careless mistake or omission unintentionally made and such mistake should be apparent on the face of the record. It should not depend for its discovery on elaborate arguments on question of law and fact.

The present is not such a case.

The parties to the suit applied for the compromise in the following terms:

The compromise decree was passed on 8.9.2009 apparently as per the provisions contained under Order 23 Rule 3 CPC which provides for:

Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule

The expression "whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit", is of wider connotation empowering the court to record the compromise and decree the suit in terms of compromise even if the subject matter incidentally exceeds the subject matter of suit. In other words though in a suit for declaration of title and of possession as compromise was arrived at between the parties for settlement of dispute on payment of Rs. 5,00,000/- the sum beyond pecuniary jurisdiction, but since the compromise is lawfully arrived at, it was within the jurisdiction of the trial court to have decreed the suit in terms of compromise. Such a decree in the considered opinion of this Court is not unlawful as would warrant its correction under Sections 152 and 153 of the CPC. The decree having been drawn on the basis of the compromise arrived at between the parties, it is binding on both the parties who cannot evade its execution.

In view of above no interference is caused, as the trial court was well within its right in rejecting the application under Sections 152 and 153 CPC. In the result petition fails and is hereby dismissed. There shall be no costs.