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Shahzad Khan Vs. Pt. Sheo Kumar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberAppln. No. 35 of 1951
Judge
Reported inAIR1957All133
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152
AppellantShahzad Khan
RespondentPt. Sheo Kumar
Advocates:S.D. Misra, Adv.
DispositionApplication allowed
Excerpt:
civil - power of appellate court - section 152 of civil procedure code, 1908 - court can under section 152 amend a clerical error in a decree - not necessary to amend the plaint. - .....came to the conclusion that the mistake was not of a clerical nature and, therefore, he refused to amend the decree. the applicants have come up before this court in revision and they have alleged that in the mortgage deed itself, which was filed with the plaint, the description of the plots was 25 plots within an area of 40 bighas and, therefore, the mistake in the plaint cannot be said to be anything else but merely a clerical error. nobody appears for the opposite party to oppose the application. 4. there is ample authority for the proposition that under section 152 it in open to the appellate court to correct mistakes and do justice in the case. the court can under section 152 amend a clerical error in a decree although the error may have occurred on account of a mistake of the.....
Judgment:

V.D. Bhargava, J.

1. This is an application in revision against an order under Section 152, Civil P. C, refusing to amend the decree in the suit.

2. The facts of the case are that on 26-7-1901 a mortgage deed was executed by Bhairon Khan, the predecessor-in-interest of the applicant, in favour of four persons who are now represented by the opposite parties. The plots mortgaged were 25 plots and the area of the plots given in the mortgage-deed was 40 bighas, 8 biswas and 14 biswansis and was situate in village Dhuremau, district Rae Bareli.

3. In the plaint the property was -described as 29 plots measuring 19 bighas, The suit was decreed and the entire decretal amount has been deposited and the property redeemed. It is alleged that the plaintiff is in possession of the entire mortgaged property, i.e. 40 bighas, 8 biswas and 14 biswansis. Some mistake cropped up in the decree on account of wrong description in the plaint. The application was opposed by the opposite party in the Court below and the learned Judge dismissed the application for amendment.

Though it was admitted that there was no such mortgaged property, in the entire village where the disputed property given in the plaint is situate, yet he came to the conclusion that the mistake was not of a clerical nature and, therefore, he refused to amend the decree. The applicants have come up before this Court in revision and they have alleged that in the mortgage deed itself, which was filed with the plaint, the description of the plots was 25 plots within an area of 40 bighas and, therefore, the mistake in the plaint cannot be said to be anything else but merely a clerical error. Nobody appears for the opposite party to oppose the application.

4. There is ample authority for the proposition that under Section 152 it in open to the appellate Court to correct mistakes and do justice in the case. The Court can under Section 152 amend a clerical error in a decree although the error may have occurred on account of a mistake of the parties themselves in their pleadings and this mistake in the decree was on account of its being copied from the plaint. It has further been held that in such cases it is not necessary to amend the plaint iteslf. It is enough to amend the decree.

There are some old cases of this Court such as Surajan Singh v. Wazir Singh, AIR 1923 All 349(2) (A) and Allah Dia v. Rahimuddin, AIR 1924 All 520 (B), where this Court had held that the only mistake that could be corrected under Section 152 and was a mistake of the Court itself and not any mistake of the parties. On the contrary there are decisions of the late Chief Court of Oudh in Shiam Lal v. Mt. Moona Kuar, AIR 1934 Oudh 352 (C) and Ram Chandra Sahu v. Jamna Prasad, ILR 10 Luck 496 : (AIR 1935 Oudh 92J (D). In the former case a learned Judge of the Chief Court held that besides Section 152 there was ample power to correct mistakes. The learned Judge observed:

'The Civil Procedure Code is not exhaustive, and therefore, judicial tribunals have always, when necessity arose, acted upon the assumption of their being possessed of an inherent power to act ex dabito justitiae, and to do that real and substantial justice for the administration of which alone they exist. Thus where a mistake is repeated in the judgment of the Court and the preliminary and final decree, the Court can amend the plaint, judgment and the decree under its inherent power under Sections 151 and 152.'

He further held if the Court below had refused to amend the decree in a proper case it was open to this Court in its revisional jurisdiction to make the necessary corrections, as a refusal would tantamount to a refusal to exercise a jurisdiction legally vested in the Court under the provisions of Sections 151 and 152; and the applicant would be entitled to ask the Court to amend the decree. That was very similar to the present case. There also the property as described in the mortgage deed and as described in the plaint differed, and on account of this incorrect description of the property in the plaint the preliminary and the final decrees both contained wrong particulars. The Chief Court allowed the amendment,

5. In AIR 1935 Oudh 92 : ILR 10 Luck 496 (D) a Bench of the Oudh Chief Court held :

''It is the duty of every civil Court to correct any mistake in any judgment, decree or order or errors, arising therein from any accidental slip or omission. This power is granted under Section 152 and under Section 151, the Civil Court is vested with inherent power to make such orders as may be necessary in the ends of justice. The language of Section 152 is wide enough to cover the correction of mistakes made by the parties themselves, and the power of the Court to make corrections necessary in the ends of justice is not confined only to powers exercisable under Section 152, but extensive Dowers could also be exercised under Ss. 151 and 153.'

In Badri Pande v. Chhangur Pandey : AIR1933All102 the plaintiff had applied that the plaint and the preliminary decree be amended. The learned Judge held: 'the Court has jurisdiction to amend the decree as prayed for.'

6. I accordingly allow the revision, set aside theorder of the Court below and order that the decree shall be amended as prayed for. I make noorder as to costs.


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