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Karimunnisa Begum Vs. Kaji Mir JamaluddIn Valade Mir Masum Alikhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 61 of 1936
Judge
Reported inAIR1937Bom457; (1937)39BOMLR915
AppellantKarimunnisa Begum
RespondentKaji Mir JamaluddIn Valade Mir Masum Alikhan
Excerpt:
civil procedure code (act v of 1908), section 152-consent decree or order-clerical or arithmetical mistake-jurisdiction to correct.;the 'decrees or orders' referred to in section 152 of the civil procedure code, 1908, include a consent decree or a consent order. therefore, a court has jurisdiction, under the provisions of that section, to correct a clerical or arithmetical mistake in a decree or order passed by it with the consent of the parties. - - a mistake in a contract common to both parties,-and a clerical or mathematical error can hardly fail to be that-can be rectified by an order of the court;.....that that order contains a clerical or arithmetical mistake, and an application was made to the learned judge under section 152 of the civil procedure code asking him to correct the mistake. the learned judge refused to entertain the application on the ground that section 152 does not apply to a consent order. i have been referred to no authority, and i know of none, in this country or in england, which deals with this particular point, and i must decide it on principle. a consent order is a form of contract; a mistake in a contract common to both parties,-and a clerical or mathematical error can hardly fail to be that-can be rectified by an order of the court; the method of obtaining such an order is a matter of procedure; normally a suit is necessary, but when the contract is.....
Judgment:

John Beaumont, Kt., C.J.

1. In this case a consent order was made, and it is alleged that that order contains a clerical or arithmetical mistake, and an application was made to the learned Judge under Section 152 of the Civil Procedure Code asking him to correct the mistake. The learned Judge refused to entertain the application on the ground that Section 152 does not apply to a consent order. I have been referred to no authority, and I know of none, in this country or in England, which deals with this particular point, and I must decide it on principle. A consent order is a form of contract; a mistake in a contract common to both parties,-and a clerical or mathematical error can hardly fail to be that-can be rectified by an order of the Court; the method of obtaining such an order is a matter of procedure; normally a suit is necessary, but when the contract is embodied in an order, I see no reason why the parties should not avail themselves of the simple method of correcting such mistakes in an order provided by Section 152. < In my opinion, therefore, the Judge had power to entertain the application. I must set aside the order of the lower Court and send the case back to the learned Judge with a direction to deal with it on the merits and decide whether the case does or does not fall within the terms of Section 152. If it does, I think he can make the alteration required without putting the parties to the delay and expense of filing a suit. The costs of this revisional application will be costs in the application to be dealt with by the Judge.


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