6. Learned Senior Advocate appearing for the defendant no. 3 submits
that the issue as to whether the decree can be modified or anything
can be added to such decree dated May 22, 1997 stands finally
decided. He refers to the sequence of events including the orders
passed from time to time right up to the Hon'ble Supreme Court.
He principally relies upon the order dated August 30, 1999 passed
by the Division Bench. He submits that a Special Leave Petition
(SLP) was carried against the judgment and order dated August 13,
1999 which was admitted. The Civil Appeal was dismissed by the
Hon'ble Supreme Court by an order dated August 12, 2009.
Therefore, according to him none of the parties can add to or alter
or modify the decree dated May 22, 1997.
7. Referring to the pleadings filed from time to time, before the High
Court as also before the Hon'ble Supreme Court learned Senior
Advocate for the defendant No.3 submits that, the data given in the
supplementary affidavit affirmed by the defendant no. 1 on
February 10, 2026 were available before the High Court as also
before the Supreme Court. Despite the same the Hon'ble Supreme
Court did not permit modification or addition to the decree dated
May 22, 1997. Application filed for such purpose by the defendant
no. 1 stood rejected right up to the Hon'ble Supreme Court. In
order to reemphasize such point he refers to the order of the
Division Bench dated August 30, 1999 and the order of the Hon'ble
Supreme Court in the Civil Appeal directed against the order dated
August 12, 2009.
8. Learned Senior Advocate appearing for the defendant no. 2 refers to
the judgment and order dated April 3, 2019. He submits that, the
description of the immovable property can only be culled out from
the various orders which formed basis of the decree. He contends
that neither the pleadings nor the orders passed by the High Court
from time to time gives the particulars which now sought to be
introduced by the defendant no 1.
9. Relying upon (2000) 6 SCC 359 (Kunhayammed & Ors. Vs State
of Kerala & Anr.) learned Senior Advocate appearing for the
defendant no.2 submits that, in view of the doctrine of merger, the
judgment and order dated August 30, 1999 of the Division Bench
merged into the judgment and order dated August 12, 2009 passed
by the Hon'ble Supreme Court in the Civil Appeal.
10. Once a similar relief as prayed for by the defendant no.1 was
rejected, the same cannot be reopened. In support of such
contention, learned Senior Advocate appearing for the defendant
No.2 relies upon (2001) 1 SCC 73 (State Bank of India Vs. Ram
Chandra Dubey & Ors.)
11. Learned Senior Advocate appearing for the defendant no.3
submits that, the defendant no.1 is essentially trying to improve
upon the prayers made in the application. He refers to the
application under consideration. He also refers to the
supplementary affidavit. Relying upon (2003) 4 CompLJ 333 (Cal)
(Bharat Bhari Udyog Nigam Ltd. & Ors. vs. Jessop and Co. Ltd.
Staff Association & Ors.) learned Senior Advocate appearing for
the defendant no.3 submits that, the case of the defendant no.3
cannot be improved by way of a supplementary affidavit. Learned
advocate appearing for the defendant no.3 adopts the submissions
made on behalf of the defendant no.2.
12. Learned senior advocate appearing for the appellant also adopts
the submissions made on behalf of the defendant no.2.
13. The civil suit in which ultimately the decree dated May 22, 1999
was passed, was initially dismissed under Order VII Rule 11 of
Code of Civil Procedure, 1908 by the learned Trial Judge. In an
appeal carried therefrom, the suit was decreed by consent on May
22, 1997.
14. Consent decree contemplates that, the properties involved will be
divided between the parties to the suit on the basis the "Mittal
Settlement". Mittal Settlement gives a brief description of the
properties involved. Technical details of such immovable properties,
however, are not provided in the "Mittal Settlement".
15. On the Department finding it difficult to draw up and complete
the decree since the such details were not provided, defendant No.
1, , applied under Sections 151 and 152 of the Code of Civil
Procedure, 1908 for alteration of the decree. Such application was
dismissed by the judgment and order dated August 30, 1999 by the
Division Bench. Special Leave Petition directed against the
judgment and order dated August 30, 1999 was admitted and the
Civil Appeal was dismissed by the Hon'ble Supreme Court on
August 12, 2009.
16. Primary ground for rejection of the request of the defendant no.1
by the Division Bench on August 30,1999 as affirmed on August
12, 2009 is that the request was not falling within the parameters
of Section 152 of the Code of Civil Procedure, 1908.
17. Refusal to invoke Section 152 of the Code of Civil Procedure,
1908 to alter the decree as error within the meaning of Section 152
of the Code of Civil Procedure, 1908 was involved would not
prevent the parties to enjoy the fruits of the decree. Consequently
the defendant no.1 applied for drawing up and completion of the
decree.
18. The issue of failure of the Department to draw up and complete
the decree came up for consideration before another coordinate
Bench which disposed of the same by a judgment and order dated
April 3, 2019. Parties informed the Court that such judgment and
order dated April 3, 2019 was not challenged before the Hon'ble
Supreme Court.
19. Relevant portion of the judgment and order dated April 3, 2019 is
as follows:
"13) We have considered the submissions made from the
Bar, the judgments relied upon and the facts of the case in
details. Admittedly there is a judgment dated 22nd May,
1997. The judgment in its last paragraph has clearly set out
the reliefs granted after thread bare discussion on each of
the issues raised by the parties. The last paragraph of the
judgment, therefore, fulfils the requirements as to the
"contents of decree" as prescribed in Rule 11 of Chapter 16 of
the Original Side Rules of this Court. This also fulfils the
requirements of Order 20 Rule 6 of the Code of Civil
Procedure, 1908. Rule 1 of Chapter 16 of the Original Side
Rules of this Court as also Rule 6A of Order 20 of the Code of
Civil Procedure, 1908 mandates the drawing up of the decree
on the judgment being pronounced if a decree follows. Rule
11 of Chapter 16 of the Original Side Rules of this Court also
provides that the decree shall not contain any recitals other
than such short ones as the Registrar or the Master may
think necessary. The judgment dated 22nd May, 1997 in
Clause 3 under the heading reliefs clearly holds that a
decree is passed in terms of orders dated
15.09.1993,14.10.1993,18.11.1993,17.12.1993 and
20.12.1993 in partial modification of the Mittal Settlement
being Annexure-G to the plaint. The said orders clearly
indicate which property is to go to whom. The suit was
primarily one inter alia for declaration and cancellation in
respect of a document being Annexure-G to the plaint (Mittal
Settlement). In such a suit, the question of putting in the
description of immovable properties in the plaint did not arise
as the document (Mittal Settlement) was annexed. A
description of the immovable properties can only be curled
out from the various orders which formed the basis of the
decree. It is not known as to why the Master in his minutes
dated 16th March, 1998 wanted the plaintiff's advocate to
include a consolidated list of properties mentioned in
Annexure-G to the plaint. The applicant (defendant no.
1/respondent no. 1) had made an attempt to include such
consolidated list which has turned down right up to the Apex
Court. As such, there is no opportunity left to improve upon
the particulars of the immovable properties mentioned in the
judgment dated 22nd May, 1997. The applicant has made
all endeavours as directed by the learned Master but has
failed providing better particulars of the immovable
properties. The applicant, therefore, cannot be hauled up for
any fault. It is the Court which has passed the judgment and
applicant had no control over the contents of the same. A
party cannot, in such a situation, be left to be remediless
without being able to enjoy the fruits of the decree. The
Original Side Rules and also the Code of Civil Procedure,
1908 mandates the drawing up of a decree. The judgment
has been pronounced and as such, the decree in terms
thereof has to be drawn up. A decree cannot be left undrawn
once a judgment has been pronounced as the last paragraph
of judgment is allowed to be treated as the operative part of
the decree till the decree is drawn up. The department,
therefore, should make all endeavour to draw up and
complete the decree in terms of the judgment and order
dated 22nd May, 1997. The department can add on short
recitals as permissible under the Rule 11 of Chapter 16 of
the Original Side Rules of this Court by collecting particulars
from the pleadings and materials on record. Parties before
us, therefore, accepted the judgment and order dated April 3,
2019 which recognized that the department can add on short
recitals as permissible under Chapter XVIA Rule 11 of the
Original Side Rules by collecting particulars from the
pleadings and materials on record."
20. As noted above, parties to the suit settled their disputes on the
basis of the consent decree dated May 22, 1997 which, inter alia,
partially modified the "Mittal Settlement". Again as noted above, the
description of the properties involved in the settlement are available
in the Mittal Settlement. Technical details of the properties involved
in the Mittal Settlement were not appearing on the face of the Mittal
Settlement and, therefore, prevented initially the drawing up and
completion of the decree and, thereafter the assessment of the
stamp duty payable.
21. Consent decree is essentially a decree for partition which also
involves immovable property. Stamp duty leviable on the aspect of
registration of such a decree will necessarily involve the issue as to
the value of the immovable property concerned in the suit. In order
to assess the valuation of the immovable property concerned in the
suit, the Department requested the Collector to assess the value of
the stamp duty payable for the purpose of preparation of the final
decree. The Collector submitted a report to the High Court dated
November 28, 2025 where he expressed his helplessness to assess
the stamp duty payable in view of the technical particulars of the
immovable property not being made available to him.
22. In the supplementary affidavit filed before as the technical
details of the immovable properties involved are provided. It is not
in dispute that such technical details do not relate to the
immovable properties involved in the Mittal Settlement. The
technical details in our view can be considered sufficient by a
Collector to assess the valuation of the immovable property
concerned.
23. In the facts and circumstances of the present case, the
contention of merger raised on behalf of the defendant Nos. 2, 3
and the appellant is of no consequence since in earlier the ground
of litigation, the coordinate Bench held that the decree was not
amenable to any change in terms of Section 152 of the Code of Civil
Procedure, 1908. Another coordinate Bench referring to the
judgment and order dated April 3, 2019 between the same parties
and in the same suit holding that the Department can add the
short recitals as permissible under Chapter XVIA Rule 11 of the
Original Side Rules by collecting particulars from the pleadings and
materials on record, directed the Department to draw up and
complete the decree. Therefore, in the factual matrix governing the
present case, Kunhayammed & Ors. (supra) is not attracted.
24. The application is for drawing up and completion of a decree. In
order to support such prayer, supplementary affidavit disclosed the
technical details of the immovable properties involved in Mittal
Settlement. Such technical details are not new as they already
existed in the pleadings filed by the parties earlier. Such
supplementary affidavit cannot be construed to mean an
improvement on the initial prayers made in the application.
Therefore, ratio laid down in Bharat Bhari Udyog Nigam Ltd. & Ors.
(supra) is not attracted.
25. In State Bank of India (supra) a prayer initially made and which
was rejected was sought to be revived. Such conduct was
disallowed. In the facts and circumstances of the present case,
initially the decree passed on May 22, 1997 was sought to be
corrected in terms of Section 152 of the Code of Civil Procedure,
1908, which failed. Today, the prayer is for drawing up and
completion and registration of the decree concerned.
26. In such circumstances, it would be appropriate to permit the
parties to the suit to file requisite form No.1 as noted in the letter of
Collector dated November 28, 2025 afresh within a period of a
fortnight from date. On receipt of such Form No.1 by the Collector,
he will proceed to assess the stamp duty payable thereon and
submit a report to the High Court within four weeks from date.
27. List the application five weeks hence.
28. Prayer for stay made on behalf of the appellant, defendant Nos.
2 and 3 are considered and rejected.
(DEBANGSU BASAK, J.)
29. I agree.
(MD. SHABBAR RASHIDI, J.)
A/s.
