1. This revision petition is filed against an order passed in April, 1937, amending under Section 152, Civil Procedure Code, a decree of April, 1919. The judgment, from which this decree proceeds, was passed on the consent of the lawyers representing both parties. The Judge who passed the decree and the leading counsel who represented both sides are all said to be dead. The facts are a little complicated but the essential points may be summarised briefly.
2. The petitioner here was the first defendant in a partition suit and the preliminary decree declared the petitioner and the respondent each to be entitled to half of the family properties. At the final decree stage there were difficulties in working out what were the rights and liabilities of the parties. The trial Court passed its final decree on the report of a commissioner who amongst other things found that the first defendant was liable for four sums making up a total of Rs. 1,888-14-10 in respect of debts due to the family which he had collected. In appeal the learned District Judge passes a judgment the first paragraph of which runs as follows:
'The parties have agreed about the amount of debts due by the family and about the amount of debts due to the family which were allowed by the first defendant to become time-barred. The amount which plaintiff has to pay under Ex. 49' (that is, debts due by the family) 'is Rs. 4,043-10-0 and the amount to be deducted for his share of barred debts is Rs. 1,253-13-5. The net amount which plaintiff has to pay is Rs. 2,789-12-7.'
3. The learned Judge then goes on to deal with the various subsidiary items on which the parties are agreed and then mentions that the questions with regard to these matters had been discussed in Court with the Vakils on both sides and an agreement had been reached and ends by saying that the final decree will be revised accordingly.
4. When the decree was drafted, it prescribed that the plaintiff should pay 'Rs. 2,789-12-7 as agreed by the parties about the amount of debts due by the family and about the amount of the debts due to the family.' The decree is silent about the first defendant's liability in respect of debts actually collected.
5. It is contended that the omission of any reference to the fact that this sum of Rs. 2,789-12-7 is merely the net result of subtracting the liability of the defendants for time-barred debts from the amount of the plaintiff's liability for debts due by the family, has resulted in an omission to give to the plaintiff a decree for these four items making up Rs. 1,888-14-10 which were taken into account in the lower Court's decree and which the appellate Court did not intend in any way to disallow.
6. Apparently the parties did not realise that there was anything wrong with this decree and the plaintiff in execution claimed this sum of Rs. 1,888-14-10 under the decree as amended. He succeeded in two Courts but in second appeal Mr. Justice Jackson held that though this sum might well be really due to the plaintiff, the parties having allowed an agreed statement to be embodied in the decree that the plaintiff do pay so much, they could not afterwards ask the executing Court to recast the amount and amend the decree. This judgment was confirmed in Letters Patent Appeal.
7. After the plaintiff had failed to get the decree interpreted as covering this claim for Rs. 1,888-14-10 he filed an application before the learned District Judge under Section 152 of the Civil Procedure Code, asking that the decree passed some 18 years previously should be amended by the insertion of words making the first defendant liable for Rs. 1,888-14-10. The learned District Judge has held that clearly this amount was due, that it was omitted from the decree by error and has ordered the amendment of the decree, but has disallowed costs on the ground that the amendments should have been applied for nearly 0 years previously.
8. It is contended that the remedy, if the order of the learned District Judge is wrong, should be by way of appeal against the amended decree and not by way of revision, the authority being Viswanathan Cheity v. Ramanathan Chetty I.L.R.(1901) 24 Mad. 646. I may point out this objection was not taken, as it should have been, until after this rather troublesome case had been argued on the merits at full length. Indeed it seems to me that assuming the decision in Viswanathan Chetty v. Ramanathan Chetty I.L.R.(1901) 24 Mad. 646 to be good law (and I may remark that it seems to run contrary to the general lines of decisions of other High Courts) the petitioner should not be non-suited merely because he has filed a revision petition, but should be permitted to pay the court-fee on the amount decreed against him and his revision petition should be treated as an appeal, it having been filed within time for an appeal. But I doubt very much whether there is any prohibition against the Court entertaining a revision petition in very special circumstances against an order passed without jurisdiction by reason of the fact that an appeal might have been filed against the amended decree resulting therefrom. Granted that the rule in Viswanathan Chetty v. Ramanathan Chetty I.L.R.(1901) 24 Mad. 646 may be a sound rule for general guidance, there is the authority for the view that in special circumstances this Court can interfere by way of revision against an order passed without jurisdiction, even when there is a possibility of questioning the correctness of the order by way of a regular appeal. The decision in Viswanathan Chetty v, Ramanathan Chetty I.L.R.(1901) 24 Mad. 646 was considered in somewhat similar circumstances to those before me by the learned Judge who decided Bhagirathi Nethiar Amma v. Minakshi Nethiar Amma : (1916)31MLJ438 , in which revision was allowed against an order to amend the decree on the grounds that the amendment was by the trial Court of an appellate decree and was therefore without jurisdiction. This decision seems to postulate that the rule in Viswanathan Cheity v. Ramanathan Chetty I.L.R.(1901) 24 Mad. 646 is not an absolute rule for, surely, it would have been open in this case also to file an appeal against the decree as amended.
9. The correct view must be that ordinarily this Court will not entertain a revision petition when a remedy by way of appeal is available; but that in very special circumstances if there is a clear error relating to jurisdiction, it may at its discretion do so. In the circumstances of the present case, I do not think it necessary to call upon the petitioner to pay the court-fee requisite to convert this petition into an appeal. The circumstances are to my mind very unusual. The learned District Judge has exercised powers under Section 152, Civil Procedure Code, 18 years after the decree was passed, when the decree itself was one passed on the consent of parties and the persons who were able to speak to the terms of that consent are dead. In my opinion, Section 152 does not empower a Court to rectify a decree merely because that decree is wrong or unfair or because the parties have not realised their rights and put them before the Court in such a way as to enable a correct decree to be passed. The powers given under this section only relate to arithmetical mistakes or errors arising from an accidental slip or omission. It seems to me impossible to hold long after the event that when there is an apparent omission of an important term from a judgment proceeding on the consent of parties, this term has been omitted by an accidental slip. No one knows what took place when the learned District Judge, who is now dead, discussed the rights and liabilities of the parties with the two learned Counsel, who are also dead. It is not impossible that Counsel may have given up one claim in order to secure another claim. To my mind there can be no certainty that the omission of this term from the final decree as amended by the late District Judge was due to any mere error. Assuming that it was due to an error, there is still less certainty that the error was an accident for which the Court itself was responsible and that it was not due to lack of diligence on the part of one of the parties. It is a dangerous thing to add terms to a consent decree and I doubt very much whether the Court has jurisdiction to do so under Section 152, at any rate without the consent of those who agreed to the original order. The presumption is that this judgment and the decree drafted in accordance therewith were scrutinised by the learned gentlemen with whose consent the judgment was passed. 'It is,' as Jackson, J., observes:
not right when the parties have allowed an agreed statement to be embodied into a decree that the plaintiff do pay so much, to ask the executing Court to recast the amount and amend the decree.
10. The objection is to my mind just as forcible when the request is made at a very late stage to the trial Court under Section 152, as when it was made to the executing Court. In this view I must hold that the learned District Judge had no jurisdiction under Section 152 to add a term to what is in fact a consent decree without the consent of both parties. The Civil Revision Petition is therefore allowed with costs here and in the Court below and the amendment to the decree will be expunged.