1. The first point raised in this second appeal is that no suit lies to rectify a mistake in a compromise decree. It was held by Napier and Krishnan, JJ. in S.A. No. 62 of 1920 that a decree is an instrument within the meaning of Section 92 of the Evidence Act. If a compromise decree is an instrument in writing, it is difficult to see how Section 31 of the Specific Relief Act does not apply to it. The contention of Mr. Narasimha Aiyangar is that a suit does not lie to rectify a mistake in a compromise decree,, but that the decree could only be set aside in toto and the parties relegated to the position in which they were before the compromise was entered into. Section 31 of the Specific Relief Act provides for a suit to rectify a mutual mistake in an instrument in writing. The opening words of Section 31 are
When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representatlve-in-interest may institute a suit to have the instrument rectified.
2. Mr. Narsimha Aiyangar relies upon Ram Lag an Sahu v. Ram Birich Koeri (1919) 4 Pat L J 205 as supporting his contention. No doubt, in that case the learned Judges observed
Once the decree has been passed and signed, then the remedy is, except in cases to which Section 152 of the Civil Procedure Code applies, to institute a suit to set aside that decree on one of the grounds aforesaid.
3. They rely on Wilding v. Sanderson (1897) 2 Ch D 534 for their position. In that case it was held that if the Court was satisfied that a mistake was committed in a compromise decree, the Court was competent to amend the decree to bring it in conformity with the intention of the parties. It is therefore clear that when a mistake has been committed in drawing up a compromise petition and that mistake finds place in the decree embodying the terms of the compromise, it is open to the Court to have that rectified in a subsequent suit. Reference may also be made to Tiruvambala Desikar v. Manickavachaka Desikar I.L.R. (1915) M 177 .
4. The next contention is that the Lower Courts have not correctly construed the compromise decree. What was divided between the plaintiff and the defendants was 32 acres 98 cents. The defendants were given 20 acres exclusive of the rocky portion and the plaintiff was given 12 acres 98 cents exclusive of the rocky portion. It is not suggested that there was any fraud played by one party on the other at the time of the compromise. From the plan and report of the commissioner, it is clear that the rocks are dotted all over with fields, and the extent of the rocky portion is between 2 to 3 acres. It that is deducted from the total extent, the parties cannot possibly have 20 acres, and 12 acres and 98 cents. The Tamil expression used is with regard to both the plaintiff's portion and the defendants' portion. Evidently what was intended to be meant was ' inclusive of the rocky portion' and not 'exclusive of the rocky portion.' Both the Courts have come to the conclusion that it was a bona fide mistake committed by both the parties at the time of drawing up the compromise petition and it does not appear to be anything other than a mistake committed by both the parties at the time.
5. Mr. Narasimha Aiyangar's complaint is that no oral evidence was adduced, and therefore the Courts were not in a position to determine what the nature of the mistake was. It was for the appellants to have adduced oral evidence to show the nature of the mistake but they have not done so. Both the parties have not adduced any oral evidence. It does not lie in the mouth of the appellants now to complain that no oral evidence was adduced. Both the Courts have taken into consideration all the circumstances and have come to the conclusion that the mistake was a mutual and bona fide one and that the intention of the parties was that both of them should have the extents assigned to them inclusive of the rocky portions. I hold that both the Courts have rightly held that this is a case for rectification.
6. In the result, the second appeal fails and is dismissed with costs.