Ghulam Ahmad and Another vs Khizar Joo and Others

K.V. Gopalakrishnan Nair, J.—This revision is preferred against the order of the Subordinate Judge at Anantnag dismissing an application

u/s 152 of the CPC for amending a decree passed by him by substituting survey No. 1506 for the existing survey No. 1527.

The Petitioner instituted a suit against the Respondent for possession of a parcel of land which was duly described in the plaint by metes and

bounds. After obtaining a decree in his favour, the Petitioner sought to execute it but in execution proceedings he was confronted with the difficulty

that the survey number of the property mentioned in the plaint was erroneous. He, therefore, applied for amending the decree by substituting the

correct survey number. The Subordinate Judge dismissed that application, the aggrieved Petitioner has therefore come up in revision to this Court.

The learned Counsel for the Respondent judgment-debtor has strenuously attempted to support the order of the lower court. According to him,

the proper remedy of the Petitioner decree-holder is to bring a fresh suit in respect of the property covered by the survey number which he now

wants to substitute in the decree.

The learned Counsel for the Petitioner, on the other hand, has argued that this is the most appropriate case for amending the decree under the

express provisions of Section 152 of the Code of Civil Procedure. According to him, this is a simple case of misdescription of the property on

account of an accidental slip or omission which could well be rectified by the court.

On the facts of the present case, it seems to be clear that the identity of the property will not be affected by granting the amendment sought by

the Petitioner. The suit property has been described by metes and bounds, and all the necessary details have been given and the property has been

correctly delineated in the plan attached to the plaint, to establish unmistakably the identity of the property. The survey number is only one of the

details relating to the description of the property. A mere error in respect of the survey number cannot and will not alter the identity of the property.

But this error, however, has caused difficulty to the Petitioner in enforcing the decree.

He merely wants to eliminate all possibility of obstruction in execution by bringing on record the correct survey number of the property. To such a

case the terms of Section 152 will undoubtedly apply. I am inclined to go further and state that if that section cannot be applied to a case like the

present, it will be difficult to apply it to any other case.

The legal position is extremely clear on the point notwithstanding the effort made behalf of the Respondent to show to the contrary. I would refer

only to a few decisions on the point. In Jagarnath Prasad Bhagat and Others Vs. Jamuna Prasad Singh and Others, , it was held by the Division

Bench of the Patna High Court that where a property has been accidentally misdescribed in a mortgage bond and the mistake has been repeated

throughout the proceedings to enforce the mortgage out where there is no doubt as to the identity of the property mortgaged and the property sold

at auction the court has ample power to amend the decree by substituting the correct description of the property. A judgment of a Division Bench

of the Allahabad High Court in Aziz Ullah Khan and Others Vs. Court of Wards, was relied on by their Lordships.

In Katamraju v. Paripurnanandam AIR 1949 Mad 282, Rajamannar C.J. held that where a mistake had crept into the description of an item of

property in the plaint schedule and the mistake had been carried over in the decree schedule, the Court has power under Sections 152 and 153 to

correct the error in the decree even after the disposal of the second appeal. To the same effect is the decision of Krishnaswami Nayudu J. in

Appat Krishna Poduval Vs. Lakshmi Nathiar and Others, .

The facts of the present case are much more strong and simple than the facts of any of the cases referred to above.

The learned Counsel for the Respondent has relied upon Ramkrishnan Chettiar v. Radhakrishnan Chettiar AIR 1948 Mad 13. This decision is

clearly distinguishable. In that case what was sought to be corrected was an error in the document upon which the suit was brought. That error

appeared to be the result of mutual mistake of the parties. No doubt, the error was repeated in the plaint and the decree. But the court held that in

substance and reality the amendment sought was to correct an error in the deed which was quite anterior to the proceedings in court.

It was, therefore, held that the proper remedy was by way of a suit u/s 31 or the Specific Relief Act. In the case on hand, the Petitioner does not

seek to rectify any document on which he brought the suit. A suit u/s 31 of the Specific Relief Act cannot possibly lie in this case. It seems to me,

therefore, idle to invoke the authority of T.M. Ramakrishnan Chettiar alias Mannar Krishnan Chettiar and Others Vs. G. Radhakrishnan Chettiar

and Others, in this case.

The other authority relied upon by the learned Counsel for the Respondent is Shyama Kant Lal Vs. Ram Lal and Another, . This case also

does not avail the Respondent. At page 401 of the report, Harries C.J. who delivered the judgment in that case stated as follows:

In my view a question involving the identity of the property mortgaged cannot be dealt with on an application to amend, There is here a serious

dispute as to what was the subject matter of the mortgage. The mortgagors contend that it was a share in village Baralodhwe, whereas the

mortgagees contend that it was a share in a Mahal known as Baralodhwe. It appears to me that this dispute can never be decided by an

application such as that preferred by the decree-holder, and in my view the lower court was right in rejecting the application to amend.

It will be noticed that the dispute in that case centered round the very identity of the property, whereas in the instant case the identity of the

property is clear beyond reasonable doubt, and what is sought is only the correction of a mis-description relating to survey number. In Mohammad

Mustafa Ali Khan Vs. District Board and Another the amendment sought was calculated to completely alter the plaint and the decree and also the

deed on which the plaint was based, and it was held that an amendment u/s 152, CPC which would bring about such a drastic result could not be

allowed. This decision also is not relevant to the facts of the present case.

As already indicated, there cannot be the least doubt in this case as to what was the property meant in the decree and the judgment as also in

the plaint. This case does not call for a decision on the question of the identity of the property. There is no doubt as to what was the property in

respect of which the court intended to pass the decree, or in respect of which the parties were litigating. All that is asked for is to rectify a mis-

description in respect of one detail which does not in any manner affect the nature, extent or identity or the property. I am satisfied that the

Petitioner is entitled to succeed in a case like this, and the lower court failed to exercise the jurisdiction vested in it by law in dismissing the

application u/s 152 of the CPC for amendment. I may add that remedy by the way of a separate suit is clearly not available to the Plaintiff-

Petitioner. Respondent's suggestion to the contrary has no force whatsoever. In the result, the revision is allowed with costs.