1951 (5) TMI 24 - HC - Indian Laws

Application Dismissed: Rectification Impermissible Due to Fundamental Error and Delay; Costs Imposed on Petitioner.

Bela Debi Versus Bon Behary Roy and Ors.

The court dismissed the application, ruling that rectification under Section 152 CPC was impermissible due to the fundamental nature of the error and the ... - Issues Involved:1. Rectification of the schedule in the plaint, consent decree, and agreement.2. Appointment of a surveyor to survey the premises.3. Execution of the conveyance in accordance with the correct schedule.4. Applicability of Section 152, Civil Procedure Code (CPC) for rectification of errors.5. Whether the application is barred by the doctrine of laches.Detailed Analysis:1. Rectification of the Schedule in the Plaint, Consent Decree, and Agreement:The application sought correction and/or amendment of the schedule in the plaint, the consent decree dated 5-6-1939, and the agreement dated 1-12-1933 by inserting the correct schedule as mentioned in paragraph 20 of the petition. The issue arose due to discrepancies in the description of the property, specifically the holding number and the amount of revenue payable. The petitioners argued that the boundaries were correct but the holding number should be '85, 85/A and a portion of 86' instead of '84', and the revenue payable should be 'Rs. 2-12-9 in respect of holding Nos. 85 and 85/A' and 'Rs. 0-3-4 in respect of holding No. 85' (sic).2. Appointment of a Surveyor to Survey the Premises:The application included a prayer for the Registrar to appoint a surveyor to survey the premises No. 69/1, Cossipore Road, Calcutta, after amendment and to execute the conveyance in accordance with the correct schedule.3. Execution of the Conveyance in Accordance with the Correct Schedule:The consent decree provided for a decree of specific performance in favor of the plaintiff, requiring Bon Behari Roy to sell the premises free from all encumbrances at Rs. 325 per cotta. The land was to be surveyed by the defendant's surveyor in the presence of the plaintiff's engineer, and if any party failed to execute the conveyance, the Registrar would do so on their behalf.4. Applicability of Section 152, Civil Procedure Code (CPC) for Rectification of Errors:The primary legal issue was whether the errors or omissions could be rectified under Section 152 CPC. The court examined various precedents and legal interpretations. It was noted that Section 152 allows for the rectification of clerical errors or accidental slips in judgments, decrees, or orders. However, the court concluded that the kind of dispute presented-where the mistake originated in the agreement for sale and involved substantial discrepancies in property description-could not be resolved under Section 152. The court emphasized that such rectifications should be sought through appropriate proceedings under the Specific Relief Act.5. Whether the Application is Barred by the Doctrine of Laches:The court also considered the delay in seeking rectification. The decree for specific performance was made in 1939, but the plaintiff did not follow up by paying the money and getting a conveyance for nearly ten years. During this period, the value of the land appreciated significantly, leading to the dispute. The court noted that there was no excuse for the petitioner's delay and that the nature of the contiguous properties and municipal numbers had changed, making it inequitable to allow the rectification.Conclusion:The court dismissed the application, holding that the rectification sought was not permissible under Section 152 CPC due to the fundamental nature of the mistake and the need for further evidence. The court also found the application barred by laches due to the petitioner's inexcusable delay. The court clarified that nothing in the judgment should prejudice either party in a properly instituted action or affect any application made to carry out the terms of the consent decree strictly in terms thereof. The application was dismissed with costs.