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Bishnu Charan Das Vs. Dhani Biswal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 99 of 1975
Judge
Reported inAIR1977Ori68; 42(1976)CLT1057
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 and 152 - Order 20, Rule 6
AppellantBishnu Charan Das
RespondentDhani Biswal and anr.
Advocates:P. Kar, Adv.
DispositionRevision allowed
Cases Referred(Sagua Barik v. Bichinta Barik
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........p. c. against an order of the munsif, second court, cuttack refusing to amend the khata no. of the suit land in the schedule of property appended to the decree.2. the following few facts need mention:the plaintiff-petitioner filed title suit no. 200 of 1970 for declaration of title and for other consequential reliefs. in the original plaint the suit land was wrongly described as appertaining to khata no. 249. when the mistake was detected, an application was filed for correction of the khata number as 949 by way of amendment of the plaint. no objection having been raised by the defendant-opposite partita the prayer for amendment was allowed on 14-12-1970 and the plaintiff was directed to file an amended copy of the plaint by 23-12-1970. no amended copy of the plaint was filed by the.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This is a revisional application filed under Section 115, Civil P. C. against an order of the Munsif, Second Court, Cuttack refusing to amend the khata No. of the suit land in the schedule of property appended to the decree.

2. The following few facts need mention:

The plaintiff-petitioner filed Title Suit No. 200 of 1970 for declaration of title and for other consequential reliefs. In the original plaint the suit land was wrongly described as appertaining to Khata No. 249. When the mistake was detected, an application was filed for correction of the Khata number as 949 by way of amendment of the plaint. No objection having been raised by the defendant-opposite partita the prayer for amendment was allowed on 14-12-1970 and the plaintiff was directed to file an amended copy of the plaint by 23-12-1970. No amended copy of the plaint was filed by the plaintiff but an endorsement 'see amendment petition' was made in red ink on the last page of the plaint. Although no amended copy of the plaint was filed the trial proceeded on the basis of the amended plaint and the suit was decreed in favour of the plaintiff on 29-4-1972. But in the decree prepared by the office of the learned Munsif the suit land was described as appertaining to khata No. 249. On discovering the mistake the plaintiff filed an application for amendment of the decree by way of substitution of khata No. 949 in place of Khata No. 249. The learned Munsif rejected the prayer observing as follows:

'Since the amended plaint was not filed as per direction of the Court withina period of 14 days as provided under Order 6, Rule 18, Civil P. C. or at any date prior to tine passing of the decree, the amendment shall be deemed to have been rejected.'

It is urged in this Civil Revision that the decree not having been drawn up in accordance with the judgment the amendment should have been allowed under the provisions of Section 152, Civil P. C.

3. As indicated earlier, the amendment was allowed and the parties went to trial with the understanding that the suit land appertains to khata No. 949. The Settlement record-of-rights in respect of Khata No. 949 comprising the suit land was exhibited at the trial. The Court referred to Khata No. 949 at several paragraphs of the judgment. In paragraph 2 of the judgment it was mentioned as follows :

'Admittedly, the suit lands appertain to Khata No. 949... ... ... ...'

Thug it is clear that the suit was decided in respect of the lands under Khata No. 949.

4. Section 152, Civil P. C. is based on two important principles. The first of them is the maxim that an act of the' Court shall prejudice no party and the other that the Courts have a duty to see that their records are true and that they represent the correct state of affairs. In proceedings for amendment of a decree, the inquiry is confined only to seeing whether the decree correctly expresses what wag really decided and intended by the Court. Order 20, Rule 6 clearly provides that the decree shall agree with the judgment. If the decree is not in harmony with the judgment the Court has no alternative but to rectify the mistake which has been committed. As the power to amend is exercised for the promotion of justice, it should be exercised liberally so as to make the decree conform to the judgment on which it is founded. I am fortified in this view by an earlier decision of this Court reported in AIR 1966 Ori 225, (Sagua Barik v. Bichinta Barik) wherein it was held on a review of the authorities that if the decree is not in conformity with the judgment it must be allowed to be amended under Sections 152 and 151 to bring it in line with the judgment and that in exercising the power under Sections 151 and 152 the Court merely corrects the mistake of its ministerial officer by whom the decree was drawn up.

5. In the present case the ministerial officer who prepared the decree didnot open his eyes to the judgment which was passed in respect of the lands under khata No. 949. While preparing the decree the machanically reproduced the schedule of properties given in the original plaint and did not refer to the order allowing amendment though there was an endorsement at the last page of the plaint to the effect: 'See amendment petition'. The decree was prepared in respect of the lands under Khata No. 249 which is not in accordance with the judgment. After a careful consideration of all the facts and circumstances of the case, I come to the unhesitating conclusion that this is a clear case where the provisions of Section 152 should apply and the mistake could be rectified by the Court, as otherwise grave injustice will be caused to the plaintiff by depriving him of the fruits of victory.

6. For the aforesaid reasons, I would allow the Civil Revision, set aside the order of the learned Munsif and direct that the decree be amended by substituting the Khata No. as 949 in place of 249. There will be no order as to costs.


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