YERRAMILLI SATYANARAYANA RAO Vs. KANDUKURI PURNAYYA

JUDGEMENT

(1.) This is a petition to revise the order of the Subordinate Judge of Narsapur dismissing an application under Section 152, Civil Procedure Code, to amend a preliminary decree obtained by the petitioners as plaintiffs in a suit upon a mortgage executed by the ancestors of defendants 1 to 5. The only other person whom it is necessary to refer to is the 7 defendant, the only contesting respondent to this petition, who was added as defendant, because he had purchased some of the mortgaged properties subject to the mortgage sued upon. Defences were raised on the merits by defendants 1 to 5., The 7 defendant pleaded that the properties purchased by him should not be proceeded against until the other mortgaged properties had been sold. There was an issue arising from the plantiffs allegations that the survey numbers of two of the properties, items 6 and 8 in the plaint schedule, were wrongly entered in the mortgage deed. All these contentions were disposed of by the findings of the learned Judge. On the last question he found that there had been an error in the mortgage deed and he ordered that the right survey numbers should be put into the decree. The present petition arose because the petitioners discovered after the preliminary decree was passed that erroneous survey numbers had crept into the plaint schedule in respect of five other properties, namely, items 2, 3, 9, 11 and 12. To take only one as an instance, for item 2 the survey number given in the mortgage deed was 187. It was so copied into the plaint and therefore it was copied into the preliminary decree. The right number, it appears, is 187-1. The other errors are alleged to be similar. The plaintiffs thereupon filed a petition to correct these errors in the decree. Their ground was that the errors were due to mistake or inadvertence, that they were strangers to the village in which the properties lay and that the numbers as stated in the mortgage deed were furnished by the mortgagor and the karnam. They therefore asked that the mistake should be rectified. The only opposing party appears to have been the 7 defendant. His objections were (1) that the petition was incompetent because a suit for rectification was the only remedy open to the petitioners in the circumstances, (2) that the mistake was neither due to inadvertence nor recently discovered as the petitioners alleged, (3) that the alleged mistakes were not mistakes at all, and (4) that his interest as bona, fide purchaser would be prejudiced by the proposed corrections. The learned Judge did not go into the merits of the application. He dismissed it on the ground that it was incompetent. The present petition is concerned only with that opinion.

(2.) For the purpose of this petition, it has to be assumed that the petitioners will be able to establish their allegations that the wrong survey numbers were entered because of mistake or inadvertence, that they became aware of the errors after the preliminary decree and lastly that the errors are really errors by which is meant that there is or can be no dispute as to the identity of the properties mortgaged. It does not now arise whether in that case the 7 defendant's plea of bona fide purchaser will avail to defeat a mortgage subject to which he bought. The question is, whether, if these facts can be established, the petitioners could have their remedy by way of amendment or were bound to resort to a suit for rectification, or, as the learned Judge puts it, to a petition for review. In coming to this conclusion the learned Judge has relied upon three cases: Fakaruddin Mahomed Ahsan V/s. The Official Trustee of Bengal (1884) I.L.R. 10 C. 538, Munuswami Filial V/s. Mahdi Flussain Khan Sahib (1925) 59 M.L.J. 655 and Fathambi V/s. Mytheen Bibi (1901) 12 M.L.J. 96. I have referred to them They have no application to the case. The learned Advocate for the respondents also does not place much reliance upon them. In all these cases, what was decided was, that a decree could not be amended after satisfaction of it had been entered up and it had consequently become dead. That is not the case here. The preliminary decree in this case is not only fully in force but the final decree has not even been passed. But the learned Advocate for the respondents has urged that a petition for amendment under Section 152 is only available in cases where the mistake or error arose for the first time in the plaint or after the institution of the suit and that it is not available where the mistake originated in a document which has been copied into the plaint or at some date anterior to the plaint. Section 152 itself says nothing about the time when mistakes or errors that may be corrected under it arose. All it says is that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. On the words of the section it is difficult to see why this limit of time as to the origin of the error should have any significance. The words generally are "any accidental slip or omission". The practical working of the distinction urged by the respondents will be that if a vakil's clerk wrongly copies a mortgage deed into a plaint and the mistake by inadvertence goes from there up to the decree, such a mistake may be corrected. But if that clerk correctly copies the mortgage deed into the plaint and the writer of the mortgage deed had carelessly committed the error of writing a wrong survey number and that mistake is repeated in the plaint and onwards to the decree, such a mistake cannot be corrected by the Court. Why there should be such a distinction according to the sense of the thing I fail to see. The object of empowering the Court to correct decrees and orders is to correct errors and if it may be shown that an alleged mistake falls within the class of errors dealt with by Section 152, it seems to put an unnecessary hindrance upon the power to do justice which the section gives to say that the only mistakes of which the Court can take cognizance are those made either in the plaint or in subsequent documents in Court. But, of course, if such a distinction has been upheld by decisions which are binding on me, I am undoubtedly bound to follow them. The learned Advocates have referred to a large number of decisions on this point, but it is curious that there is none which directly decides it, although there are a number of cases which have a more or less indirect bearing on it. In our own Court, in Nurayanasivami V/s. Natesa (1892) I.L.R. 16 M. 424, when the old Civil Procedure Code was in force, a decree-holder applied for amendment of the description of hypothecated property in order to bring it into conformity with that contained in the hypothecation bond. Apparently that case was one where the vakil's clerk had wrongly copied the hypothecation bond into the plaint. The District Munsif allowed the amendment. Parker, J., set aside the order of the Munsif as made without jurisdiction under the then Section 206, which limited the power of amendment to cases where there was a discrepancy between the judgment and the decree. On appeal from Parker, J., Best and Muthuswami Aiyar, JJ., set aside that decision although on different grounds. Best, J., said: It is thus seen that the alteration ordered was necessary to rectify a palpable error, without which correction the decree was in executable. The error is in fact in the plaint, but it is so palpable that to disallow its correction would be simply to put an obstacle in the way of plaintiff's executing his decree.

(3.) Muthuswami Aiyar, J., on the same point referred to the decision of the Privy Council in Bissessur Loll Sahoo V/s. Maharajah Luchmessur Singh (1879) L.R. 6 I.A. 233 to the effect that in execution proceedings the Court will look at the substance of the transaction and will not be disposed to set aside an execution upon mere technical grounds when they find that it is substantially right: It seems to me that this principle may be kept in view in the exercise of the discretionary power conferred upon the High Court by Section 622, especially when the order revised...rendered the decree which would otherwise be incapable of execution capable of execution.