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Allah Dia and anr. Vs. RahimuddIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All520; 78Ind.Cas.166
AppellantAllah Dia and anr.
RespondentRahimuddIn and ors.
Excerpt:
civil procedure code (act 7 of 1909) section 152 - amendment of decree--clerical error--mistake due to party, whether can be corrected. - - a mistake in the final form of an order may well be due to an original mistake made by the party or his lawyer in making the application. we take it that the learned judge was satisfied that there had been a mistake......of the kind which may be described as clerical, or due to an oversight between a decree nisi and a decree absolute, are in the majority of cases the mistake or slip of the party who sets the court in motion. the application made to the learned judge was a very ordinary one for amendment, and it ought to have been decided on the merits. we take it that the learned judge was satisfied that there had been a mistake. he says that if there was one, it was in the application, which looks as though he thought there was one. the result was that the order which followed the application was in a mistaken form, and the decree which followed the order, -followed the same mistake. it might happen in a suit that a claim for rs. 100,000 in a plaint was said to be rs. 200,000 by a slip of the pen, which.....
Judgment:

1. We think that this application in revision ought to succeed. We do not think that the learned Judge was justified in rejecting the application on any ground, and he certainly was not justified in rejecting it on the ground which he has given. A mistake in the final form of an order may well be due to an original mistake made by the party or his lawyer in making the application. That is not a reason for refusing to correct a mistake, otherwise there would be no object in the legislature giving the Courts jurisdiction to correct mistakes. Mistakes of the kind which may be described as clerical, or due to an oversight between a decree nisi and a decree absolute, are in the majority of cases the mistake or slip of the party who sets the Court in motion. The application made to the learned Judge was a very ordinary one for amendment, and it ought to have been decided on the merits. We take it that the learned Judge was satisfied that there had been a mistake. He says that if there was one, it was in the application, which looks as though he thought there was one. The result was that the order which followed the application was in a mistaken form, and the decree which followed the order, -followed the same mistake. It might happen in a suit that a claim for Rs. 100,000 in a plaint was said to be Rs. 200,000 by a slip of the pen, which nobody noticed and which is carried throughout the whole suit from the plaint down to the decree. Nobody can doubt, and it has been decided over and over again, that a mistake of that sort begun in the plaint and carried right through the proceedings without being discovered, can be corrected in the decree. We, therefore, think that the learned Judge ought to have made the amendment. We are not prepared ourselves to make it, because in addition to the verbal alterations necessary, we are asked to direct a resale. A resale seems necessarily to follow from what we are directing to be done. But to prevent any possibility of further mistake, we prefer to indicate what we think ought to be done, and leave the Court below to do in the presence of anybody who chooses to come and object. If the purchasers, as we are told, themselves asked for a correction of the decree, they cannot be heard to object to it now. But the Court, before making any order for resale, ought to give the purchasers an opportunity of being heard. We direct the case to be returned to the lower Court and to be taken up forthwith as a miscellaneous application after notice to the parties, and we direct the lower Court to entertain the application for inserting into the decree absolute the names of Hoshyar Singh and Chhajju Mal so as to bring the decree in this respect into conformity with the decree nisi. Secondly, to strike out one of the 2-3rds. That is to say, to direct in the decree absolute that 2-3rds of the property, and not 2-3rds of 2-3rds shall be sold, as recorded in the new khewat No. 25, and, lastly, to make such order for resale as appears to the Court below to be right, and to be such as the Court below would have made, if it made the decree absolute in the form which we now direct it to be made. The applicant must have the costs of these proceedings in the Court below up to the present date and of the proceedings which we have directed further to be taken.


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