The High Court of Calcutta, while allowing a petition filed against an order passed against the order rejecting an application filed under Section 152 of the CPC, held that the test to determine whether the slip or omission is accidental or not is to judge whether the order as it stands represents the intention of the judge at the time he made it, and if it does not then a mistake in it can be treated as accidental slip or omission.
Brief Facts:
The plaintiff/respondent purchased a property jointly. She was enjoying the property jointly with the other co-share but as she was facing inconveniences in joint possession, she filed a partition suit. In the said suit, the plaintiffs prayed for a decree of declaration of his 2/3rd share in the property but in the schedule, she described the area of the property as 0.08 decimal when she was entitled to more or less 8 (7.96) decimal in the suit plot but showing the lesser quantum of land, she sought for declaration in her favor. A decree was drawn. An application under section 152 of the code of civil procedure for rectification was filed by the defendant/petitioner. The application was rejected. Hence, the present petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the wrong or mistake whatever is appearing in the decree is based on the plaint which was created by the plaintiff and defendant no. 1/petitioner was not at all responsible for the said wrong. He contended that it is established beyond doubt that the actual measurement of the property in respect of which the plaintiff sought for declaration of 2/3rd share is measuring about 8 decimals, which the learned commissioner also confirmed while making the valuation.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the petitioner herein filed an application for pre-emption long back and he never sought any correction in the schedule mentioned property and accordingly, the decree was passed and now he cannot pray for correcting the decree, since the executing court cannot go beyond the decree. He contended that the court below was justified in observing that the executing court can correct the decree where the mistake occurred due to a slip of the pen by the Court himself and not by the party in the proceeding.
Observations of the court:
The court noted that Section 152 can be invoked for the limited purpose of correcting clerical errors or arithmetical mistakes in the judgments and it cannot be invoked for claiming a substantive relief which was not granted under the decree. The wrong/mistakes whatever has been appearing in the schedule of the plaint or in the decree are on the basis of plaint created by the plaintiff and the present petitioner defendant no. 1 was not at all responsible for the said wrong/mistake.
The Court observed that the court has every power to amend its order so as to carry out the intention and express the meaning of the court at the time when the order was made. The decree made an accidental omission, and as such it is certainly within the competence and jurisdiction of the executing court under section 152 of the Code to rectify such error in the decree. The test to determine whether the slip or omission is accidental or not is to judge whether the order as it stands represents the intention of the judge at the time he made it, and if it does not then a mistake in it can be treated as accidental slip or omission.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the mistake can be corrected because it was clerical in nature and the petitioner herein was not responsible for the said typographical mistake.
Case Title: Smt. Minati Ghosh & Ors. v Chameli Mondal & Ors.
Coram: Hon’ble Justice Ajoy Kumar Mukherjee
Case No.: C.O. 1338 of 2021
Advocate for the Petitioner: Mr. Partha Pratim Roy
Advocate for the Respondent: Mr. Siba Prasad Ghosh
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