TaxTMI 
TaxTMI 
2007 (10) TMI 616
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....rty, described in the schedule to the plaint, it was stated : All that acres of land now developed for Housing Township appertaining to Rs.Dag No. under Khatian Nos. of Mouza Tegharia, J.L. No.6, lying and situate within Sonargaon Park, P.S. Sonarpore, District South 24 Parganas (South). 4. A decree was passed wherein again the same Schedule of Property was described as the property involved in the suit. It was directed: The plaintiff do get a decree for declaration of title and permanent injunction against the defendants in respect of the suit property. It is declared that the plaintiff has right, title and interest in the suit property. Defendants are restrained by an order of permanent injunction from disturbing or interfering with the peaceful possession of the plaintiff over the suit property in any way or in any manner whatsoever. The other prayer of the plaintiff is refused in view of my discussion made in the body of judgment. 5. Appellant herein did not file any written statement in the said suit. He, however, examined himself as a witness. He did not prefer any appeal against the said judgment and decree. The said decree indisputably has been a....
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....for the appellant, would submit that having regard to the fact that the sisters of the defendant No.1 who were owners of the property had not been impleaded as parties in the suit and an ex parte decree was obtained by the respondent against the appellant herein, an irreparable injury would be caused to him if the application for amendment is allowed. 12. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the respondents, on the other hand, submitted that the court s power to amend a decree is not only confined to a clerical or arithmetical error but also the pleadings of the parties, if a mistake had occurred in the pleadings and the same is continued. Reliance in this behalf has been placed on Bela Debi v. Bon Behary Roy & Ors. [AIR 1952 Cal. 86]. It was furthermore urged that the suit being for enforcing a sale deed, the Dag and Khatian number stated in the plaint was determinative as regards identification of the property. J.L. number, it was urged, has nothing to do with the identification of the property or the village in which it is situated. It was pointed out that the plots in question had also been ordered to be mutated in favour of the respondent. Even an ....
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....ffice Sonarpur, Pargana Medanmalla, at Mouza Teghari, village, included in Touzi No.294 Re.Sur No.126, J.L. No. 52 having Ryoti Mokarari right under Khatian No.80, out of 1.36 decimals of land in our jama bearing annual rent of Rs. 5- 10-10 pies 34 decimals of land bearing proportionate rent of Re.1.42 paise owner West Bengal Govt. There is no other cosharer. In dag no.340 three hundred forty .79 decimals N other Mouza In dag No.342 three hundred forty two .24 decimals N Farez. In dag no.341 three hundred forty one .33 decimals N Alta Bibi Total 1.36 one Acre thirty six decimals Out of that in 4 annas share .34 thirty four decimals of land. 2. In the said Police Station, at the said Mouza, included in the said Touzi under the said owner, having Ryot Stitiban Right, under part Khatian land bearing annual rent of .25 paise. There is no other cosharer. In dag No.343 three hundred forty three .49 decimals Danga land out of that in 4 annas share 12 decimals of land under two khatians total 46 decimals forty six decimals Particulars of property mentioned in Schedule kha In the D....
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....ag No.342, .12 dec in Dag No.343 and .24 dec in Dag No.344 total being 1.72. d) Subsequently, said Dilbahar Molla died leaving behind one son and two daughters through the first wife, Second wife and three sons and two daughters through the second wife. Thus out of remain 1.02 dec of Dilbahar, the second wife Malekjan Bibi had 8th each son had 7/48th and each daughter had 7/96. The cosharers of the said property have never partitioned the same and they are in joint possession thereof. 17. What was, therefore, denied and disputed was the claim of the plaintiffs-respondents in respect of purchase of the property from Niyamat Ali and others. Similar statements were also made in the written statement. From a perusal of the judgment passed by the Assistant District Judge, 24 Parganas, Baruipur in Title Suit No. 144 of 1993, it appears that the possession and title of defendant No.4 had been taken into consideration therein. No issue was framed in regard to identification of the said property. The learned Judge held : On perusal of the same, I am of the view that the plaintiff has title as well as possession in the suit property and the defendants have failed to prove thei....
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....p; mesne profits instead of net profits . In fact the use of the words mesne profits came to be made probably because while narranting the facts, those words were inadvertently used in the judgment. 21. The question came up for consideration before the Calcutta High Court in Bela Debi (supra), wherein it was held It will thus be seen that there is a diversity of judicial opinion as to how far a Court can go in rectifying its own decree. Where, of course, the amendment is in order to carry out its own meaning, there is no doubt about the power of the Court in effecting such corrections (see In re St. Nazaire Co., (1879) 12 ch. D. 88; Preston Banking Go. v. Allsop, (1895) 1 Ch. 141). Nor can it be disputed that it has power to rectify mistakes which are of a ministerial kind (see Mellor v. Swire, (1885) 30 Ch. D 239). But the difficulty arises when it is found that the mistake is not one of the Court but is a mistake of the parties themselves. Mistakes in the description of properties in deeds, is illustrative of this kind of mistake. It is the parties who have made the mistake, and the mistake is continued in the pleadings and the decree. Accordi....
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....order. It cannot go into any disputed questions. If there is a particular description of a property in a deed, and a suit has been instituted on the strength of that description, and a decree passed, it is not permissible in proceedings under section 152 to go into disputed questions as to what property was intended to be dealt with, by the parties in the deed. I agree with Gentle C. J. that such a question can only be dealt with, in appropriate proceedings under the Specific Relief Act (see T. M. Ramakrishnan Chettiar v. G. Ramakrishnan Chettiar, A. I. R. (35) 1948 Mad. 13). But it may so happen that the mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed its judgment, decree or order. For example, suppose in a conveyance a property is described as '24 Chowringhee Road, Bhawanipur'. It would be clear to everybody what property was meant, and it cannot be seriously doubted that in abating that the property was in 'Bhawanipur', the parties had committed an 'accidental slip or omission'. In such a case, I would not go to the extent of holding that the Court has no power to correct t....
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....ws that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the Court by couching the reliefs to which the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the Court to vary its judgment so as to give effect to its meaning and intention. Power of the Court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when the order was made was upheld by Bowen L.J. in re Swire; Mellor V. Swire, (1885) 30 Ch. D. 239, subject to the only limitation that the amendment can be made without in justice or on terms which preclude injustice. Lindley L.J. observed that if the order of the Court, though drawn up, did not express the order as intended to be made then "there is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to House of Lor....
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....w or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of Code even after passing of effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original jud....