Yerramilli Satyanarayana Rao and Others vs Kandukuri Purnayya and Others

Krishnan Pandalai, J.—This is a petition to revise the order of the Subordinate Judge of Narsapur dismissing an application u/s 152, Civil

Procedure Code, to amend a preliminary decree obtained by the petitioners as plaintiffs in a suit upon a mortgage executed by the ancestors of

defendants 1 to 5. The only other person whom it is necessary to refer to is the 7th defendant, the only contesting respondent to this petition, who

was added as defendant, because he had purchased some of the mortgaged properties subject to the mortgage sued upon. Defences were raised

on the merits by defendants 1 to 5., The 7th defendant pleaded that the properties purchased by him should not be proceeded against until the

other mortgaged properties had been sold. There was an issue arising from the plantiffs'' allegations that the survey numbers of two of the

properties, items 6 and 8 in the plaint schedule, were wrongly entered in the mortgage deed. All these contentions were disposed of by the findings

of the learned Judge. On the last question he found that there had been an error in the mortgage deed and he ordered that the right survey numbers

should be put into the decree. The present petition arose because the petitioners discovered after the preliminary decree was passed that

erroneous survey numbers had crept into the plaint schedule in respect of five other properties, namely, items 2, 3, 9, 11 and 12. To take only one

as an instance, for item 2 the survey number given in the mortgage deed was 187. It was so copied into the plaint and therefore it was copied into

the preliminary decree. The right number, it appears, is 187-1. The other errors are alleged to be similar. The plaintiffs thereupon filed a petition to

correct these errors in the decree. Their ground was that the errors were due to mistake or inadvertence, that they were strangers to the village in

which the properties lay and that the numbers as stated in the mortgage deed were furnished by the mortgagor and the karnam. They therefore

asked that the mistake should be rectified. The only opposing party appears to have been the 7th defendant. His objections were (1) that the

petition was incompetent because a suit for rectification was the only remedy open to the petitioners in the circumstances, (2) that the mistake was

neither due to inadvertence nor recently discovered as the petitioners alleged, (3) that the alleged mistakes were not mistakes at all, and (4) that his

interest as bona, fide purchaser would be prejudiced by the proposed corrections. The learned Judge did not go into the merits of the application.

He dismissed it on the ground that it was incompetent. The present petition is concerned only with that opinion.

For the purpose of this petition, it has to be assumed that the petitioners will be able to establish their allegations that the wrong survey numbers

were entered because of mistake or inadvertence, that they became aware of the errors after the preliminary decree and lastly that the errors are

really errors by which is meant that there is or can be no dispute as to the identity of the properties mortgaged. It does not now arise whether in

that case the 7th defendant''s plea of bona fide purchaser will avail to defeat a mortgage subject to which he bought. The question is, whether, if

these facts can be established, the petitioners could have their remedy by way of amendment or were bound to resort to a suit for rectification, or,

as the learned Judge puts it, to a petition for review. In coming to this conclusion the learned Judge has relied upon three cases: Fakaruddin

Mahomed Ahsan v. The Official Trustee of Bengal ILR (1884) C. 538, Munuswami Filial v. Mahdi Flussain Khan Sahib (1925) 59 M.L.J. 655

and Fathambi v. Mytheen Bibi (1901) 12 M.L.J. 96. I have referred to them They have no application to the case. The learned Advocate for the

respondents also does not place much reliance upon them. In all these cases, what was decided was, that a decree could not be amended after

satisfaction of it had been entered up and it had consequently become dead. That is not the case here. The preliminary decree in this case is not

only fully in force but the final decree has not even been passed. But the learned Advocate for the respondents has urged that a petition for

amendment u/s 152 is only available in cases where the mistake or error arose for the first time in the plaint or after the institution of the suit and

that it is not available where the mistake originated in a document which has been copied into the plaint or at some date anterior to the plaint.

Section 152 itself says nothing about the time when mistakes or errors that may be corrected under it arose. All it says is that 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. On the words of the section it is difficult to see why this limit of time

as to the origin of the error should have any significance. The words generally are ""any accidental slip or omission"". The practical working of the

distinction urged by the respondents will be that if a vakil''s clerk wrongly copies a mortgage deed into a plaint and the mistake by inadvertence

goes from there up to the decree, such a mistake may be corrected. But if that clerk correctly copies the mortgage deed into the plaint and the

writer of the mortgage deed had carelessly committed the error of writing a wrong survey number and that mistake is repeated in the plaint and

onwards to the decree, such a mistake cannot be corrected by the Court. Why there should be such a distinction according to the sense of the

thing I fail to see. The object of empowering the Court to correct decrees and orders is to correct errors and if it may be shown that an alleged

mistake falls within the class of errors dealt with by Section 152, it seems to put an unnecessary hindrance upon the power to do justice which the

section gives to say that the only mistakes of which the Court can take cognizance are those made either in the plaint or in subsequent documents in

Court. But, of course, if such a distinction has been upheld by decisions which are binding on me, I am undoubtedly bound to follow them. The

learned Advocates have referred to a large number of decisions on this point, but it is curious that there is none which directly decides it, although

there are a number of cases which have a more or less indirect bearing on it. In our own Court, in Nurayanasivami v. Natesa ILR (1892) M. 424,

when the old CPC was in force, a decree-holder applied for amendment of the description of hypothecated property in order to bring it into

conformity with that contained in the hypothecation bond. Apparently that case was one where the vakil''s clerk had wrongly copied the

hypothecation bond into the plaint. The District Munsif allowed the amendment. Parker, J., set aside the order of the Munsif as made without

jurisdiction under the then Section 206, which limited the power of amendment to cases where there was a discrepancy between the judgment and

the decree. On appeal from Parker, J., Best and Muthuswami Aiyar, JJ., set aside that decision although on different grounds. Best, J., said:

It is thus seen that the alteration ordered was necessary to rectify a palpable error, without which correction the decree was in executable. The

error is in fact in the plaint, but it is so palpable that to disallow its correction would be simply to put an obstacle in the way of plaintiff''s executing

his decree.

Muthuswami Aiyar, J., on the same point referred to the decision of the Privy Council in (1879) L.R. 6 I.A. 233 (Privy Council) to the effect

that in execution proceedings the Court will look at the substance of the transaction and will not be disposed to set aside an execution upon mere

technical grounds when they find that it is substantially right:

It seems to me that this principle may be kept in view in the exercise of the discretionary power conferred upon the High Court by Section 622,

especially when the order revised...rendered the decree which would otherwise be incapable of execution capable of execution.

In Somasundaram Chettiar v. Veluswami Naicker (1914) M.W.N. 107 there were errors in the description of the boundaries of the properties

which made the whole description palpably erroneous and, if allowed to stand, would have made the decree absolutely, useless and unexecutable.

Their Lordships after referring to the case in Narayanaswami v. Natesa ILR (1892) M. 424 said:

Following the ruling in Narayanaswami v. Natesa ILR (1892) M. 424 we hold that the time when the clerical errors (provided they are as in this

case palpably clerical errors) were first introduced in the transactions or proceedings between the parties is immaterial and that the Court has got

power to amend such clerical errors if they are found in the decree without the necessity of having the prior pleadings in which the same errors had

formerly appeared themselves amended as a preliminary requisite to the amendment of the decree.

If the statement of their Lordships that ""the time when the clerical errors were first introduced in the transactions between the parties is

immaterial"" is to be strictly understood and applied, it amply covers this case. But it has to be noted that it does not appear from the report whether

the mistakes in that case were mistakes first introduced into the plaint or they were copied from the document sued on. These cases were followed

by another Bench in Mahaboob Begum Sahib v. Lal Begum Saheba (1921) 14 L.W. 445 . The only other cases that were cited to me were upon

the question that it is possible for plaintiffs situated as the petitioners are to bring a suit for rectification. The cases cited are Upadrashta Latchayya

Vs. Gudaparti Sitamma and Others, , Jogeswar Atha v. Ganga Bishnu Ghattack (1904) 8 C.W.N. 473 Srish Chandra Pal Chowdhry v. Triguna

Prasad Pal Chowdhry ILR (1913) C. 541 and Bala Prasad v. Kanoo (1911) 14 I.C. 407 : 8 N.L.R. 13. The decisions in these cases only go as

far as to say that even after a decree is passed with wrong descriptions of the properties, a suit for rectification may be brought to correct the

error. They do not touch the question whether such a suit is the only remedy. There are, however, two remarks in two of these cases to which

attention has been drawn. In Bala Prasad v. Kanoo (1911) 14 I.C. 407 : 8 N.L.R. 13, which was a case before the Nagpur Judicial

Commissioner''s Court, a suit was brought for rectification in which the defendants raised the question that no such suit would lie and that the

plaintiff''s remedy was by way of application for amendment u/s 152. In view of the numerous other decisions to which reference has been made

that contention was, of course, untenable; but in addition to saying so, the Acting judicial Commissioner said that Section 152, Civil Procedure

Code, applies to mistakes which had an origin not anterior to the filing of the suit. This remark was obviously not necessary for the case. Similarly,

in Ramchander Sarup v. Mashar Hussain (1919) 51 I.C. 55 a creditor against whom an adjudication had been made in the insolvency of his

debtor that the amount of the debt was only Rs. 3,000 and odd attempted to get the decree on which his claim was based amended by altering it

into one for Rs. 6,000 and based his application on the ground that he was applying for amendment of the decree. Their Lordships spoke of the

application as a hopeless case, because no decree could be amended after the claim under it had been adjudicated upon and limited to the amount

fixed by the insolvency proceedings. But at the end of the judgment there is this sentence:

Section 152 deals with amendments of clerical errors in orders or decrees of the Court itself which are drawn up not properly representing what

the Court decides.

That again was a remark which was not necessary for the decision, if from it it is intended to be drawn the inference, which I think does not

strictly follow therefrom, that Section 152 does not apply to errors caused by copying into a plaint documents which are themselves incorrect.

There is thus no decision which supports the respondents'' contention; on the contrary, there is a decision of the Rangoon High Court which goes a

long way to support the petitioners contention. In Maung Chit v. N.A.R.M. Chetty AIR 1924 Rang. 104 a mortgage deed had been so carelessly

drawn as to omit the most important of the mortgaged properties. A decree was obtained upon the defective document and after decree an

application to correct it was made. Mr. Justice Duckworth upheld the order of the District Court granting the application. He described the

omission as ""an error arising in the decree from an accidental omission,"" which in the first instance was due to the mortgagor himself. He went on to

observe:

There never was, apparently, any dispute as to the actual property mortgaged. In these circumstances, I consider that the District Court was right

in making use of the Court''s inherent power u/s 152.

After referring to the cases cited to him he wound up by saying that it would cause great hardship to the respondent if the amendment in this

instance was disallowed as it would probably necessitate a suit to rectify the decree. The net result of the authorities appears to me to be that there

is nothing which limits the power of the Court u/s 152 to correcting errors, mistakes and omissions, which arose in the suit and there is nothing

which prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into

the plaint. In my opinion, a suit for rectification although it may have been possible is not the only remedy. As for the suggestion of the Judge that a

petition for review is appropriate, I fail to see that that is an obstacle to the present application. The order of the Judge dismissing the petition must

be set aside and the petition will be remitted to the Lower Court for being dealt with on the merits.

Costs of this petition will abide and be provided for by the learned Judge in the order to be passed by him.