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Chandra Kumar Mukhopadhya Vs. Sm. Sudhansu Badani Debi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1924Cal895
AppellantChandra Kumar Mukhopadhya
RespondentSm. Sudhansu Badani Debi and ors.
Cases ReferredHenry William Hatton v. Hugh Harris
Excerpt:
- .....that may be' after the direction about the keeping of a road 2 cubits broad from plot no. 7 northwards over the eastern limit of plot no. 8. these words should also be inserted.5. this rule is accordingly made absolute. in the circumstances of this case we make no order as to costs.graham, j.6. i agree with my learned brother that this rule should be made absolute. it has not been disputed that the decree is not in conformity with the judgment. under order 20, rule 6 of the code the decree must be in conformity with the judgment and it is the duty of the, court to see that there is such agreement. no question of limitation arises and under section 152, c.p.c., an omission of this mature in the decree can be corrected by the court at any time. there are reported cases in england where.....
Judgment:

Suhrawardy, J.

1. This Rule was issued on the opposite party to show cause why the decree passed in suit No. 41 of 1919 in the Court of the first Subordinate Judge of Dacca should not be amended as prayed in the petition. The suit was a partition suit and on the 10th April, 1919, the Subordinate Judge of Dacca passed a decree in it. There was an appeal to the District Judge by a party other than the petitioner and the defendant No. 7. The decree of the first Court was affirmed on the 7th August, 1920. There was a second appeal to this Court which was dismissed under Order 41, Rule 11 on the 14th March 1921. The decree was executed and possession was delivered to the different parties on the 8th February, 1922. It is stated that the petitioner at that time discovered the mistake, namely, the omission of a certain direction in the decree and he applied on the 18th July, 1922, to the Court of the Subordinate Judge of Dacca for its amendment. The application remained pending till the 9th June, 1923, when it was dismissed on the ground that the application should have been made to this Court, the original decree having merged in the decree of this Court in the second appeal. Hence the petitioner moved this Court and obtained the present Rule. The defect in the decree complained of is this. The petitioner was the defendant No. 8, in the Court below. In the partition suit a Commissioner was appointed; and the parties by mutual consent agreed to the allotments made by him. The real dispute in the present matter lies between defendant No. 8 who is the petitioner and the defendant No. 7 who is the contesting opposite party. The two plots allotted to these two defendants are contiguous. It was agreed that defendant No. 8 (the petitioner) should give a road over his plot No. 8 to defendant No. 7; and in exchange get a 2 feet wide strip of land from east to west being the northern portion of plot No. 7 which was allotted to defendant No. 7. All these terms are embodied in the judgment. The decree, however, though it mentions that a way will be kept over plot No. 8 for access to plot No. 7, from the north, does not mention the 2 cubits wide strip of land to be allotted to defendant No. 8. The defendant No. 8 has accordingly applied to have that clause inserted in the decree and thus make it conform to the judgment.

2. It is not seriously disputed that there has been this omission; but it is argued by defendant No. 7 that the amendment should not be allowed at this stage, first, because it is not proved that he had consented to the giving up of this strip of land and secondly, because his right to appeal from the amended decree will now be barred. I do not think that these considerations ought to prevail against a. plain duty of the Court. The real question that arises in this case is, that, conceding that the decree is at varia ice with the judgment, whether it is in the discretion of the Court, considering the length of time after which the application for amendment is made and the other circumstances, to refuse to bring it into conformity with the judgment. The learned Vakil for the petitioner contends that when it is discovered that the decree does not agree with the judgment it is the duty of the Court to amend the decree so as to bring it into conformity with the judgment. In my judgment that is the true view of the law. A decree has been defined in Section 2 of the Code of Civil Procedure as the formal expression of an adjudication which completely determines the right of the parties with regard to the matter in controversy in the suit. This formal expression of adjudication means that the decree is a concise statement of the adjudication of rights of the partied by the Court as expressed in the judgment. A decree, therefore, does not and cannot travel beyond or short of the judgment and must follow it. The law with regard to amendment of decree was expressed in Section 206 of the Code of 1882. That section was in these terms : 'If the decree is found to be at variance with the judgment or if any clerical or arithmetical error be found in the decree, the Court shall of its own motion or on that of any of the parties amend the decree so as to bring it into conformity with the judgment or to correct such error'. It made it obligatory on the Court, if there is any variance between judgment and decree, to bring them into conformity. That section in the old Code was split up and its several parts embodied in different sections of the new Code. The first portion of the section made it obligatory that the decree should conform to the judgment and is reproduced in Rule 6, Order 20. The latter portion of the old section is re-enacted in Section 152 of the present Code. The power of the Court to amend the decree is not confined to provisions of Order 20, Rule 6 or to Section 152, for it is a matter within the inherent jurisdiction of the Court and it may be exercised under Section 151 which how ever does not restrict the illimitable inherent jurisdiction of the Court as is observed in the cases of Brijratan v. Jay Narain [1910] 37 Cal. 649 and Barhamdeo Singh v. Harmoga Narain [1913] 20 C.L.J. 18.

3. It is, however, urged that Section 162 gives the Court a discretion to allow or not an application for amendment of a decree. In my opinion, this is not the correct reading of the section. It no doubt says that when a clerical or arithmetical mistake is discovered in the decree, the Court may at any time correct it. The Word 'may' in the section does not make it discretionary with the Court to order the correction, but merely enlarges the power of the Court by providing that such correction can be done 'at any time'; or in other words the section simply emphasises that no lapse of time would disentitle the Court to make the correction. As has been observed the intention of the law is to make it obligatory upon the Court whenever any such mistake is discovered to correct it, and Section 152 merely emphasises that duty of the Court by saying that it may be done at any time without limitation. This view namely, that it is the duty of the Court to amend the decree when it is brought to its notice that it does not agree with the judgment, is supported by a number of cases of which reference may be made to the cases of Shivapa v. Shivpanch Lingapa [1887] 11 Bom. 284, Kalu v. Latu [1894] 21 Cal. 259, Menat Ali v. Amdar Ali [1905] 9 C.W.N. 605, Basanta Kumar Bose v. Khulna Loan Coy. [1915] 9 C.W.N. 605 and Surendra Nath Roy Choudhuri v. Girija Nath Roy Choudhuri [1912] 15 C.L.J. 658. The only exception to this general rule is that the Court will refuse to make the amendment where it offends against the principles of equity; for instance, it may not be desirable to amend the decree where the interest of a third party (who may be a bona fide transferee for valuable consideration) may be jeopardised, Henry William Hatton v. Hugh Harris [1892] A.C. 547. A reference to the reported cases on this point shows that amendment has been allowed even long after the passing of the decree without limit of time. I am, therefore, of opinion that the decree should be amended by inserting the following words : 'Defendant No. 8 will get a space 2 cubits broad throughout the entire length of plot No. 7 and contiguous to plot No. 8 in consideration of the space that he shall have to keep open for ingress and egress to and from plot No. 7 over the land of plot No. 8.'

4. Both parties further pray that another omission in the decree should also be supplied by inserting the words : 'The eastern boundary of plot No. 8 may fluctuate; but the way must always be 2 cubits broad from its eastern limit whatever that may be' after the direction about the keeping of a road 2 cubits broad from plot No. 7 northwards over the eastern limit of plot No. 8. These words should also be inserted.

5. This Rule is accordingly made absolute. In the circumstances of this case we make no order as to costs.

Graham, J.

6. I agree with my learned brother that this Rule should be made absolute. It has not been disputed that the decree is not in conformity with the judgment. Under Order 20, Rule 6 of the Code the decree must be in conformity with the judgment and it is the duty of the, Court to see that there is such agreement. No question of limitation arises and under Section 152, C.P.C., an omission of this mature in the decree can be corrected by the Court at any time. There are reported cases in England where such amendment has been made after the lapse of many years. Where property has changed hands subsequent to the passing of the decree and delivery of possession, other considerations arise. But this is not a case of that nature. I agree that the omission ought to be rectified by amending the decree so as to bring it into conformity with the judgment.


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