Skip to content


T.M. Ramakrishnan Chettiar Alias Mannar Krishnan Chettiar and ors. Vs. G. Radhakrishnan Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1948Mad13; (1947)2MLJ72
AppellantT.M. Ramakrishnan Chettiar Alias Mannar Krishnan Chettiar and ors.
RespondentG. Radhakrishnan Chettiar and ors.
Cases ReferredIn J. C. Galslaun v. Pramathanath Ray I.L.R.
Excerpt:
- - so far as the pleadings and the matters of record and the proceedings in the court are concerned, clearly there is no accidental slip or omission where it is alleged a mistake was made in the description of the property in the mortgage deed by describing the property as no. it is quite clear that the order complained of cannot possibly come within section 152, civil procedure code an amendment of this character which completely alters the plaint and the decree and also the deed on which the plaint is based cannot be said to be the correction of clerical mistake in a judgment......attachment was effected. nothing further was done for nearly three years. in 1933 the mortgagee decree-holder assigned the decree to the present first respondent who was the petitioner in the court below. at the time of the assignment, it was apparently manifest that the mortgagor had no title to property no. 1467 and there was no recourse to that property by virtue of the mortgage deed and the preliminary and final mortgage decrees in the suit. eight years later, the assignee decree-holder brought the property no. 1467 to sale in execution of the final mortgage decree, and at the sale he became the purchaser. the sale was confirmed shortly after it took place and satisfaction for the amount paid for it was entered up in the decree.2. when the assignee decree-holder purchaser went to.....
Judgment:

Frederick William Gentle, C.J.

1. This appeal arises out of an order by the learned Subordinate Judge of Trichinopoly who allowed the first respondent's application to correct a mortgage deed, a judgment, a preliminary decree and the final decree passed upon the mortgage deed. The first appellant is the original mortgagor, the other two appellants are his grandsons, and the first respondent is the assignee of the original mortgagee. The mortgage was created in 1922 in favour of one Vadivelam Pillai in respect of three items of property including one to which I will refer as No. 1467. In 1928 a preliminary decree was passed followed by the final decree in 1929. Shortly thereafter, the mortgagee discovered mat the mortgagor had no title to No. 1467 and in 1930, in E.A. No. 494 of 1939, he applied for attachment of property No. 1466 to which, it is apparently common ground, the mortgagor had a title. That application was ordered and attachment was effected. Nothing further was done for nearly three years. In 1933 the mortgagee decree-holder assigned the decree to the present first respondent who was the petitioner in the Court below. At the time of the assignment, it was apparently manifest that the mortgagor had no title to property No. 1467 and there was no recourse to that property by virtue of the mortgage deed and the preliminary and final mortgage decrees in the suit. Eight years later, the assignee decree-holder brought the property No. 1467 to sale in execution of the final mortgage decree, and at the sale he became the purchaser. The sale was confirmed shortly after it took place and satisfaction for the amount paid for it was entered up in the decree.

2. When the assignee decree-holder purchaser went to take possession, he was obstructed by one of the sons of the first appellant. An application to remove the obstruction was made at the instance of the assignee decree-holder; it was ordered by the Subordinate Judge's Court in 1943. On appeal to this Court in 1944, the appeal was allowed, and certain observations were made during the course of the judgment upon which the learned counsel for the respondent placed some reliance.

3. Shortly after the appeal was allowed--and it would follow the application of the assignee decree-holder was dismissed--the assignee decree-holder made a further application in the lower Court. It is out of that application that the present appeal arises. By that application, the assignee decree-holder sought to have the mortgage deed, plaint in the mortgage suit and the preliminary, and final decrees altered by substituting in place of property No. 1467 properties Nos. 1463 and 1466. It was argued that Section 152, alternatively Section 151, of the Code of Civil Procedure, confers upon Courts authority and power to make the alterations and corrections sought in the application.

4. The learned Subordinate Judge allowed the application and altered or corrected the instrument to which I have referred, by substituting, in the deed and decrees, properties Nos. 1463 and 1466 in place of property No. 1467 as part of the hypotheca of the mortgage deed and properties which were to be subject to the effect of the mortgage decree.

5. Firstly, as to Section 152 of the Code and whether the application lies, pursuant to that enactment. The section provides as follows:

Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

This section corresponds to Order XXVIII, Rule 21 of the rules of the Supreme Court; it is known as the ' slip rule.' The alterations, amendments or corrections which the section authorises are limited by its provisions. They are the following :- Clerical or arithmetical mistakes in judgments, decrees or orders, and, in addition, errors arising in judgments, decrees or orders from any accidental slip or omission.

6. There is no clerical or arithmetical mistake in the present instance, and therefore in order to attract Section 152, it must be shown that there is an error arising in the judgment or decree from an accidental slip or omission. So far as the pleadings and the matters of record and the proceedings in the Court are concerned, clearly there is no accidental slip or omission where it is alleged a mistake was made in the description of the property in the mortgage deed by describing the property as No. 1467 instead of as properties Nos. 1463 and 1466.

7. The question of the extent of the authority given by Section 152 has been the subject of decisions in this and in other Courts. In Satyanarayana Rao v. Purnayya (1930) 61 M.L.J. 805 it was held that where there was a wrong description of a mortgaged property in a mortgage deed and the mistake was repeated in the plaint and in the preliminary decree, the plaintiff mortgagee was entitled to obtain rectification throughout under Section 152 of the Code. That decision followed Maung Chit v. N.A.R. M. Chetti A.I.R. 1924 Rang. 104. In Ranga Rao Naidu v. Janaki Prasad : AIR1941Mad940(1) a decision to the same effect was expressed, but no reasons are given and the earlier decision of this Court was followed. The above three authorities were decided by Judges sitting alone and not by a bench of Judges. The same consideration came before a Division Bench of the Allahabad High Court in Shujaatmand Khan v. Govind Bekari : AIR1934All100 There, Young, J. and Thom, J., expressed the View and held that an amendment allowing a correction of the description of the property in a mortgage deed was not possible under the provisions of Section 152. At page 101, it was observed as follows:

It is quite clear that the order complained of cannot possibly come within Section 152, Civil Procedure Code An amendment of this character which completely alters the plaint and the decree and also the deed on which the plaint is based cannot be said to be the correction of clerical mistake in a judgment.

In the present instance, it is said that there is a mistake, which is a mutual mistake, that the property described by reference to the survey number was an error and in place of No. 1467, Nos. 1463 and 1466 should be substituted. It is of some significance to recall that when the original mortgagee found that the mortgagor had no title to property No. 1467 he did not take any steps to have the mortgage deed and the proceedings rectified. On the other hand, he took proceedings in order to be able to have recourse against properties Nos. 1463 and 1466 by a sale of those properties,; and for that purpose they were attached, so that in the event of the hypotheca being insufficient to satisfy the mortgage debt and personal decree being passed against the mortgagor there would be recourse, available to satisfy the personal decree.

8. Assuming, however, that the inclusion of the description of property No. 1467 in place of the other two properties is a mutual mistake the remedy is to have the mortgage deed rectified and a suit for rectification of any deed, or document, on the ground of mutual mistake, is one which is provided for by Section 31 of the Specific Relief Act.

9. I am unable to see how Section 152 gives to a Court jurisdiction and authority to modify documents, particularly documents upon which a suit is instituted. There is a remedy by way of suit and I find nothing in the provision of Section 152 which confers upon it similar powers as are conferred by Section 31 of the 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 that it is an accidental slip or an omission.

9. In the present instance, if properties Nos. 1463 and 1466 were substituted in place of property No. 1467 not only would there have to be substitution of the former numbers for the latter number but there would have to be further alterations in the description of the hypotheca by eliminating the present boundaries, which are given in some detail, and in their place substituting the boundaries of the two, properties, Nos. 1463 and 1466. It may be that those alterations are consequential, but they are alterations of substance. How that body of errors,-if they be errors can be called an accidental slip, an omission or a clerical mistake, I am unable to follow. With great respect, I am unable to subscribe to the judgments and the decisions given in the three cases, one in the Rangoon High Court and the other two in this Court, expressed by Judges sitting alone. I prefer the decision of the Division Bench in the Allahabad case. In my view, the application out of which this appeal arises does not fall within Section 152.

10. It is further argued that Section 151 of the Code applies and justifies the present application. That section provides as follows:

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

It has to be pointed out that Section 151 does not confer any jurisdiction upon this Court. It is merely declaratory that nothing shall limit or otherwise affect the Court's inherent power. If there was inherent power in the Court to make an order for rectification of a document upon an application, as was made in this case, it seems to me that there would be no need for Section 31 of the Specific Relief Act. That section gives a remedy by which a document, by reason of fraud or mutual mistake can be corrected. In J. C. Galslaun v. Pramathanath Ray I.L.R.(1929) Cal. 154 it was observed by Sir George Rankin, C.J., at page 159 that

If the relief can be properly obtained in a separate suit, it does not appear that there i any justification for invoking Section 151 at all.

11. A remedy is provided for rectification ; that is the remedy given by Section 31 of the Specific Relief Act. That being so, it seems to me that nothing in Section 151 can avail the assignee decree-holder to obtain correction of the mortgage deed which his assignor got executed and upon which he instituted the mortgage suit and a final decree was passed. When it was found that the property, therein described as No. 1467, was property to which no recourse could be had as the mortgagor had no title to it, the mortgagee did not take any step other than to obtain an attachment of the two properties which are now sought to be substituted in the mortgage deed in place of No. 1467 by rectifying the mortgage deed in that respect.

12. In my view, and for the reasons given, this appeal should be allowed, and the application made to the learned Subordinate Judge, should have been dismissed. The appellants are entitled to their costs here and below.

Happell, J.

13. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //