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Judgment
The petitioners in this writ petition have raised a question as to whether the Court below has correctly exercised jurisdiction under Section 152 of
the Code of Civil Procedure, 1908 (C.P.C) while disposing of application filed by the petitioners for correction of decree passed on compromise pursis
filed by the parties.
The petitioners had filed Regular Civil Suit No. 136 of 1989 for partition and separate possession of their share in ancestral properties of Bhaurao
Kombe, being the wife and daughter of the said person. The respondents (original defendants) appeared before the Court below and filed their written
statements. The petitioners had described the suit property in paragraph 3 of the plaint which included agricultural fields and house property. During
pendency of the suit, an application for amendment was moved on behalf of the petitioners to include some other house properties to be made subject
matter of the suit. Although this application for amendment was opposed by the respondents, the application was allowed and the said properties were
shown in paragraph nos. 3(A) and 3(B) in the plaint.
After issues were framed by the Court on 09.02.1994, the respondents filed a pursis stating that they had no objection for passing preliminary
decree of 1/7th share in the properties mentioned in the plaint. Accordingly on 25.02.1994, the Court below decreed the suit specifically recording that
the plaintiffs had 1/7th share in the suit property as described in paragraph 3 of the plaint. Accordingly, a preliminary decree was directed to be drawn.
The petitioners filed Regular Darkhast No. 34 of 1995 for the execution of the said decree wherein an objection was raised on behalf of the
respondents stating that the petitioners had sought to place on record a manipulated copy of the plaint and it did not match with the original decree
dated 25.02.1994 passed by the Court. On 18.02.2011, the Court below, in the said execution proceedings called upon the petitioners (decree holders)
to satisfy the Court as to how the execution was maintainable in view of the objection raised by the respondents regarding the decree put to execution
not being the same as the original decree. Thereafter, the Court below passed an order in the execution proceedings on 03.08.2011 recording that
steps were not being taken by the petitioners in compliance with the earlier orders and indicating that in case of failure of compliance, further order
would be passed. Thereafter, on 29.08.2011 the Court below dismissed the execution petition noting that considerable opportunities had been given to
the petitioners but they had failed to show compliance.
Thereafter, on 18.03.2012, the petitioners filed M.J.C.No. 21 of 2012 before the Court below under Section 152 of the C.P.C. praying for
correction of the decree by removing unamended plaint copy and replacing the same by amended plaint.
In the meanwhile, respondent no.6 filed a Regular Civil Suit No. 101 of 2010 for declaration and permanent injunction against the petitioners praying
for a decree of declaration that field properties mentioned in the amended plaint of R.C.S.No. 136 of 1989 at paragraph nos. 3B(C) and 3C were not
liable to be partitioned and also prayed for a decree of permanent injunction against the petitioners for excluding the said properties from the execution
proceedings vide Regular Darkhast No. 34 of 1995 filed by the petitioners. The said respondent no.6 was original defendant no.2 in R.C.S.No.136 of
1989.
The said R.C.S.No.101 of 2010, which was filed on 25.05.2010, was decided on 23.05.2016 by the Court below decreeing the suit and granting the
declaration and injunction as prayed in the said suit. It is relevant that the said suit was contested by the petitioners, who were the defendants therein
and detailed evidence was led by the parties. Upon appreciation of the evidence on record, the Court below came to a conclusion in the said suit that
the compromise entered into between the parties in R.C.S.No.136 of 1989 concerned only properties mentioned in paragraph 3 of the plaint of R.C.S.
No. 136 of 1989.
Thereafter, on 28.05.2016, the Court below passed the impugned order rejecting the application for correction of decree filed by the petitioners in
R.C.S.No.136 of 1989 on the basis that in view of judgment in subsequent R.C.S.No. 101 of 2010, the said application did not survive. The said order
is subject matter of challenge in the present writ petition.
Ms. Aruna Khare, learned counsel appearing for the petitioners submitted that the Court below erred in rejecting the application for correction of
decree because the original decree dated 25.02.1994 passed by the Court below in R.C.S.No.136 of 1989 suffered from a mere clerical error in the
form of non-inclusion of the amended paragraphs in the plaint describing the properties that were subject matter of the suit filed by the petitioners. It
was the contention of the learned counsel that such a mistake was obviously an accidental slip and omission which could be corrected by the Court
below by exercising powers under Section 152 of the CPC. It was further submitted that when the amendment sought by the petitioners had been
specifically allowed by the Court below, in view of the pursis filed by the respondents, the decree ought to have been concerning all the properties
mentioned in the amended plaint. It was submitted that the Court below committed a grave error in rejecting the application without giving any reasons
and merely relying upon the judgment in the subsequent suit bearing R.C.S.No. 101 of 2010.
On the other hand, Mrs. Vaishali Khadekar, learned counsel appearing for respondent no.6, submitted that the alleged error in the decree sought to
be corrected by the petitioners was nothing but an attempt to go beyond the decree dated 25.02.1994 passed by the Court below, which could not be
permitted under Section 152 of the C.P.C. It was submitted that a perusal of the aforesaid decree dated 25.02.1994 would show that only property
described in paragraph 3 of the plaint was made subject matter of the decree. If properties beyond those described in paragraph 3 were to be
included, it would have been specifically mentioned in the decree dated 25.02.1994. It was submitted that the respondents had agreed in the
compromise pursis only for properties described in paragraph 3 of the plaint and that if the petitioners claimed to the contrary, it was a question
required to be decided on merits, which could not be done under Section 152 of the C.P.C. It was further submitted that respondent no.6 had
specifically filed a separate subsequent suit bearing R.C.S.No. 101 of 2010, wherein specific prayers had been made pertaining to the said decree
passed in R.C.S.No.136 of 1989, contending that properties mentioned only in paragraph 3 of the plaint in R.C.S.No. 136 of 1989 were subject matter
of compromise. The said subsequent suit had been contested on merits by the petitioners and a decree had been passed against them, which was now
a subject matter of appeal filed by the petitioners that was pending. It was submitted that in these circumstances the Court below was justified in
passing the impugned order.
Before considering the rival contentions raised on behalf of the parties, it would be relevant to appreciate the scope of Section 152 of the C.P.C.
The said provision reads as follows:-
“152. Amendment of judgments, decrees or orders:- Clerical or arithmetical mistakes in judgments, decrees 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.â€
The said provision obviously has limited application and in circumstances where the Court finds that there are some clerical or arithmetical
mistakes in decrees or errors that have occurred due to accidental slip or omission. In such limited circumstances, the Court can exercise powers
under Section 152 of the C.P.C. for making correction in decree. In the case of JJayalakshmi Coelho .vs. Oswald Joseph Coelho- (2001) 4 Supreme
Court Cases 181, in the context of the aforesaid provision, the Hon’ble Supreme court has held as follows:-
“14. As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the
provisions contained under Section 152 CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something
which the court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only
advance the ends of justice to enable the court to rectify such mistake. But before exercise of such power the court must be legally satisfied and
arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise, that is to say, while passing the
decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the
decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended
by the Court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands
added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the
matter and to find that a better order or decree could or should be passed. There should not be reconsideration of merits of the matter to come to a
conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second
thought the court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its
rectification in exercise of the court's inherent power as contained under Section 152 CPC. It is to be confined to something initially intended but left
out or added against such intention.â€
In the case of Srihari .vs. Syed Maqdoom Shah - (2015) 1 Supreme Court Cases 60 7after quoting the aforesaid provision, the
Hon’ble Supreme Court held has follows:-
“13. From the language of Section 152 of the Code, as quoted above, and also from the interpretation of the section given in State of Punjab V.
Darshan Singh, the section is meant for correcting the clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein
from any accidental slip or omission. It is true that the powers under Section 152 of the Code are neither to be equated with the power of review nor
can be said to be akin to review or even said to clothe the Court under the guise of invoking after the result of the judgment earlier rendered. The
corrections contemplated under the section are of correcting only accidental omissions or mistakes and not all omissions and mistakes. The omission
sought to be corrected which goes to the merits of the case is beyond the scope of Section 152. In Bijay Kumar Saraogi also it has been reiterated
that Section 152 of the Code can be invoked for the limited purpose of correcting clerical errors or arithmetical mistakes in judgments or accidental
omissions.â€
The aforesaid position of law makes it clear that the Court has to exercise power under Section 152 of the C.P.C. sparingly and that the Court
cannot go into the merits of the case to alter or add to the terms of the original decree or to give a finding in the body of the judgment which was
sought to be corrected. The said position of law needs to be applied to the facts of the present case.
A perusal of the decree dated 25.02.1994 shows that decree has been granted and it has been declared that the petitioners (original plaintiffs) have
1/7th share in the “suit property described in paragraph 3 of the plaintâ€. It is significant that only paragraph 3 of the plaint has been specifically
mentioned in the aforesaid decree dated 25.02.1994 passed by the Court below in R.C.S.No. 136 of 1989 filed by the petitioners. It is also important
that the said decree was passed on a pursis filed by the respondents and that essentially it was a compromise decree. In the execution proceedings
filed by the petitioners, the Court below had specifically called upon the petitioners to satisfy as to why the objection raised on behalf of the
respondents concerning the decree put to execution not being similar to the original decree, was not to be sustained. The petitioners failed to satisfy
the executing Court regarding the same leading to the eventual dismissal of the execution proceedings.
In the meanwhile, the respondent no.6 had already filed subsequent suit bearing R.C.S.No. 101 of 2010 seeking specific declaration and injunction
against the petitioners as regards the aforesaid decree being limited only to paragraph 3 of the plaint in R.C.S.No. 136 of 1989. The said suit was filed
on 25.05.2010 wherein the petitioners as defendants appeared and contested the same. It was during pendency of the said suit that the petitioners on
09.03.2012 filed an application under Section 152 of the C.P.C. in R.C.S.No. 136 of 1989 for correction of decree.
The above mentioned subsequent suit bearing R.C.S. No. 101 of 2010 was contested by the petitioners wherein evidence was recorded. By
judgment and order dated 23.05.2016, the Court below decreed the suit against the petitioners thereby granting declaration and injunction as sought by
the respondent no.6. It is undisputed that the said judgment and decree passed by the Court below has been challenged by way of appeal by the
petitioners and that the said appeal is pending.
In this situation, the Court below passed the impugned order holding that the application for correction of decree filed by the petitioners under
Section 152 of the C.P.C. does not survive in view of judgment of the said Court in the subsequent R.C.S.No.101 of 2010 and on this basis the
application of the petitioners was rejected. The facts on record show that the “correction†of decree sought by the petitioners in the present case
is not merely a clerical mistake or an error on the basis of an accidental slip or omission and that it certainly goes to the merits of the matter. The
question as to whether the respondents had agreed for compromise only in respect of properties stated in paragraph 3 of the plaint in R.C.S.No. 136
of 1989 or that they agreed for compromise in respect of properties described in subsequent paragraphs added by amendment of the plaint, is a
question that touches upon merits of the case. The decree dated 25.02.1994 passed by the Court below in R.C.S.No. 136 of 1989 specifically states
that the decree was being passed regarding 1/7th share of the petitioners in respect of suit property described in paragraph 3 of the plaint, also making
a reference to the pursis filed on behalf of the respondents. Thus, the decree specifically restricted itself to properties described in paragraph 3 of the
plaint in R.C.S.No. 136 of 1989 and, therefore, any attempt at inclusion of other properties necessarily raised a question as to whether the respondents
had agreed for compromise with respect to properties other than those described in paragraph 3 of the plaint. This clearly concerns merits of the
decree and it cannot be said to be a mere clerical error, accidental slip or an omission in the original decree.
In this backdrop, filing of the subsequent suit bearing R.C.S.No. 101 of 2010 which was contested on merits by the petitioners and decree passed
against the petitioners assumes great significance. The very issue which touches upon the extent of decree passed in R.C.S.No. 136 of 1989 has been
decided in the aforesaid subsequent suit, which is now a subject matter of challenge in appeal filed by the petitioners. This is an additional factor
indicating that the claim of the petitioners that there was only a clerical error, accidental slip or omission in the original decree dated 25.02.1994 passed
by the Court below in R.C.S.No. 136 of 1989, is wholly unsustainable.
Therefore, applying the position of law pertaining to Section 152 of the C.P.C. to the facts of the present case, it becomes clear that no error was
committed by the Court below in rejecting the application filed by the petitioners for correction of decree.
In these circumstances, the writ petition is found to be without any merits and it is dismissed.