TMI Blog1951 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... parcel of land (which is at present covered with water) measuring about 10 cottabs of land (be it a little mere or less) bearing Municipal No. 69/1,. Cossipore Road (Baranagore) in the suburbs of Calcutta,. Holding No. 84, Division I Sub-Division II butted and bounded by on the north by Sristhidhar Lane, on the south by Girindranath Mukherjee Road, on the west by Mussamat Birajini's land, and Radheba Tauchha Bibi's land, paying Government revenue Rs. 2/4/11 per year in respect of the whole premises Holding No. 84. 4. On or about 6-8-1937, Chandrika Prasad Gupta assigned his right title and interest in the said agreement to Mussamat Bela Debi since deceased, who was the plaintiff in the suit. On or about 18-5-1938, Bela Debi filed this suit against Bon Behari Roy and Chandrika Prasad, for specific performance of the agreement for sale. It appears that two ladies, Sm.Nivanani Roy and Sm. Soilabala Mitra, claimed charges for maintenance on the property, and on or about 17-5-1939 they were added as parties to the suit, on the application of Bon Behari Roy. 5. On or about 5-6-1939, a consent decree was passed in the suit. The provisions of the consent decree are briefly as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1939, was void, nullity, and without jurisdiction. The ground made in the plaint is that the property being outside jurisdiction, the High Court could not pass such a decree. This suit has been transferred to this Court under clause 13, Letters Patent. 10. The petitioners say that they have now made inquiries and searches in the records of the Corporation of Calcutta and the Collectorate, and also referred to Smart's Survey Plan, and have come to the conclusion that the schedule in the agreement for sale was not correct, but due to Inadvertance and/or mistake, errors and omissions the description as given in the schedule to the agreement was not a correct description, it is said that the boundaries are quite correct but the holding number of the premises instead of being '84' should be '85, 85/A and a portion of 86'. The next mistake is in respect of the amount of revenue payable, which is stated to be Rs. 2-4-11 per cotta, but should be Rs. 2-12-9 in respect of holding Nos. 85 and 85/A and as Rs. 0-3-4 in respect of holding No. 85 (sic). Although no other mistakes are pointed out in the petition, it appeared at the hearing of the application that if the holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sm. Sailabala Mitra (being his sister and aunt respectively) to relinquish their charges on that, holding only. According to Roy, the holdings now claimed were heavily mortgaged and, in fact have been now sold to third parties. Also, accord to him, the two ladies abovenamed have no intention of releasing 'premises No. 1 Satchasipara Road' as it now is, from their claims for maintenance, etc. 14. This application has been made under the-provisions of section 152, Civil P. C, and the following points arise for decision : (1) Is it a kind of error or omission that can be rectified under section 152 ? (2) In an application under section 152, is it possible to, correct errors not only in the decree, but also in a deed? (3) Is the application barred by the doctrine of laches ? 15. The fact enumerated above show that if there has been any error or mistake, it originated with the agreement for sale which was executed as long ago as 1933. Since that date, the contiguous lands have developed, the municipal numbers have changed and to my mind (upon the materials before me) it is not possible to state with certainty as to what the parties intended, without going into further evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1466' should be substituted. Gentle C. J., pointed out that section 152 of the Code contemplated the rectification of a clerical error or arithmetical mistakes in judgments, decrees or orders and errors arising therein from any accidental slip or omission. He pointed out that the rectification asked for, would not only mean rectification of the decree but that of the mortgage deed itself. He said as follows: I am unable to see how section 152 gives to a Court jurisdiction and authority to modify a document, particularly documents upon which the suit is instituted. There is remedy by way of suit, and I find nothing in the provisions of section 152 which confers upon it similar powers as are conferred by section 81, Specific Relief Act, In my view, section 152 is for the purpose of correcting errors directly involved in the proceedings themselves and not for correcting errors which are anterior to the proceedings, particularly in documents upon which proceedings are brought. I am unable to see that property, wrongly described in a deed, can be included in any of the mistakes which the section allows to be corrected. It is not a clerical or an arithmetical error and I cannot see t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n khewat No. 3 but it was included in khewat No. 2. Courtney-Terrell 0. J. and Agarwalla J. held that there was no doubt as to the identity of the property but it was a case only of misdescription and the sale certificate should be allowed to be amended. In a subsequent Patna case, Ram Sankar Bandopadhya v. Khudiram Dutt A.I.R. (29) 1942 Pat. 328, Fazl Ali J. held that where the property was sold in execution of a decree, the question whether the description of the property by the khewat number, or its description by its area should prevail, cannot be dealt with, under 8. 151 or section 152 of the Code. 19. It will thus be seen that there is a diversity of judicial 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 of the Court in effecting such corrections (see In re St. Nazaire Co., (1879) 12 ch. D. 88; Preston Banking Go. v. Allsop (1895) 1 Chn. 141). Nor can it be disputed that it has power to rectify mistakes which are of a ministerial kind (see Mellor v. Swire (1885) 30 Chn. D 239). But the difficulty arises when it is found that the mistake is not one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 decree or order. It cannot go into any disputed questions. If there is a particular description of a property in a deed, and a suit has been instituted on the strength of that 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. Ramakrishnan Chettiar v. G. Ramakrishnan Chettiar A. I. R. 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 seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d parties had acquired rights, and/or where it would be inequitable or unjust to allow the rectification. Laches, under the particular circumstances of the case, might disentitle a party to relief under this section (see Kishori Mohan v. Chhanga Lal, 47 ALL. 44). In this case, it was contemplated by the terms of settlement that there should be a survey within a week, and yet nothing was done for ten years, in the meanwhile, the nature of the contiguous properties, the Municipal numbers, all had been altered; new roads seem to have come into existence, and the particular property which the petitioner now claims, has been the subject matter of sale and/or mortgage. In my opinion, there is no excuse for the laches of the petitioner in the circumstances of this case. It is alleged by the petitioners that no particulars have been given of the mortgage or sale of the disputed property. If I was in favour of the petitioners on the other points, I might have directed further particulars to be given, but inasmuch as I am against the petitioners on the main question whether it was a fit case for intervention under section 152 of the Code, I do not think that I should be justified in prolongi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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