Tripura High Court
Shri Raiharan Datta vs Page 1 Of 7 on 10 January, 2017
Author: S.C. Das
Bench: S.C. Das
THE HIGH COURT OF TRIPURA
AGARTALA
IA NO.1453 OF 2016
IN RFA NO.01 OF 2011(D/O)
1. Shri Raiharan Datta,
S/o. Late Ramesh Chandra Dutta,
2. Shri Bhupal Majumder,
S/o. Shri Nakhatra Majumder,
- both residents of chanban,
P.O. and P.S. Radhakishorepur,
Udaipur, District- South Tripura.
3. Shri Kalyan Chandra Chowdhury,
S/o Late Jitendra Lal Chowdhury,
4. Shri Jantu Das,
Son of Shri Sukumar Das
-both residents of Fulkumari No.i,
P.O. Udaipur Court, P.S. Radhakishorepur,
Udaipur, District South Tripura.
5. Shri Deshapremik Roy,
S/o. Late Jatindra Mohan Roy
6. Shri Manash Kanti Roy,
S/o-Late Promode Ranjan Roy,
Both residents of Dakbanglow Road,
P.O. Udaipur Court,
P.S. Radhakishorepur, Udaipur,
District- South Tripura.
7. Shri Dilip Kumar Saha,
Son of late Gopal Krishna Saha
Resident of Kailarmath,
P.O. Udaipur Court, P.S Radhakishorepur,
District South Tripura.
8. Shri Nani Gopal Dey,
S/o. Late Dakshina Ranjan Dey of
West Bank of Dhanisagar,
P.O. Udiapur Court,
P.S. Radhakishorepur,
Udaipur, District South Tripura
................ Plaintiff Appellants.
- VS -
Page 1 of 7
IA NO.1453 OF 2016
IN RFA No.1 of 2011(D/O)
1. Shri Parimal Chandra Baidya,
Son of Late Jatindra Kumar Baidya of
Udaipur Town (near Inspector of Schools, Udaipur)
P.S. Radhakishorepur, Udaipur.
District South Tripura.
2. Shri Prasanta Saha,
Son of late Jogesh Chandra Saha of
Badarmokam, P.S. Radhakishorepur,
Udaipur, District South Tripura.
3. Shri Suranjan Das,
Son of Late Nagendra Chandra Das of
Vadarmokam, P.S. Radhakishorepur,
Udaipur, District South Tripura.
.................... Defendant-Respondents.
BEFORE THE HON'BLE MR. JUSTICE S.C. DAS For the Appellant- Petitioners : Mr. A.K. Bhowmik, Sr. Advocate.
Mr. R. Dutta, Advocate.
For the Respondent No.1 : Mr. S.M. Chakraborty, Sr. Advocate.
Ms. B. Chakraborty, Advocate.
For the Respondent Nos.2 & 3 : Mr. K.K. Pal, Advocate.
Date of hearing & delivery of
Judgment & order : 10.01.2017.
Whether Fit for Reporting : Yes.
JUDGMENT & ORDER(ORAL)
Heard learned senior counsel, Mr. A.K. Bhowmik assisted by learned counsel, Mr. R. Dutta for the appellant-petitioners, learned senior counsel, Mr. S.M. Chakraborty assisted by learned counsel, Ms. B. Chakraborty for respondent No.1 and learned counsel, Mr. K.K. Pal for the respondent Nos.2 & 3.
Page 2 of 7 IA NO.1453 OF 2016 IN RFA No.1 of 2011(D/O)
2. The petitioners as appellants preferred RFA No. 1 of 2011 against the respondent-OPs challenging judgment and decree dated 26.04.2011, passed by learned Civil Judge (Senior Division) South Tripura , Udaipur in Case No. T.S. No.19 of 2009. That appeal preferred by appellant- petitioners was partly allowed by this Court by judgment dated 24.07.2014, followed by appellate decree dated 29.08.2014. The appeal was disposed of with the following observations and decisions of this Court:-
"27. Out of the suit land, the defendant No.1 already sold .117 acres of land to defendant Nos. 2 and 3 by dint of Exhibit-5 and 6 and by dint of Exhibit-7 another .022 acres of land has been given by the defendant No.1 to defendant Nos.2 and 3 as path way. So in total the defendant No.1 already disposed of .139 acres of land in favour of the defendant Nos. 2 and 3 out of total .240 acres of suit land. The defendant No.1 is, therefore, bound to execute sale deed for the rest area of . 101 acres of suit land in favour of the plaintiffs retaining Rs.8,83,750/- out of the advanced amount of Rs.18,65,000/- and the rest amount of Rs.9,81,250/- the defendant No.1 is bound to return to the plaintiffs with interest thereon.
28. The suit is accordingly partly decreed. The defendant No.1 is directed to execute the registered deed of sale in favour of the plaintiffs for .101 acres of the remaining suit land within 45 days from the date of appellate decree failing which the plaintiffs will be entitled to get the sale deed executed through Court as per law. The Defendant No.1 is further directed to return the remaining amount of Rs.9,81,250/- with 10% interest thereon from 13.11.2008 to the plaintiffs within 45 days from the date of appellate decree failing which the plaintiffs will be entitled to recover the amount from the defendant No.1 in due process of law.
29. The appeal is accordingly partly allowed with costs through out."
3. After the aforesaid appellate judgment and decree was passed, the appellant-petitioners presented one petition under Order 6 Rule 17 read with Section 151 of CPC seeking amendment in the cause title of the memorandum of appeal, which was registered as IA No. 1561/2016 and sought for correction of the father's name of appellant No. 1 and the name of appellant No.6. It was stated in that petition that the father's name of Page 3 of 7 IA NO.1453 OF 2016 IN RFA No.1 of 2011(D/O) appellant No.1 was actually 'Ramesh Chandra Dutta' but it was inadvertently typed as 'Himesh Chandra Dutta' and that the name of plaintiff-appellant No.6 was 'Manash Kanti Roy' but it was inadvertently written as 'Naresh Kanti Roy'.
4. That petition seeking amendment to the memorandum of appeal in the title head was allowed by this Court by order dated 16.11.2016 in IA No.1561 of 2016 and, accordingly, necessary corrections have been made by the Registry in the memorandum of appeal.
5. Simultaneously, the present application was also filed by the appellant-petitioners seeking correction of the decree drawn on 29.08.2014 in respect of the father's name of appellant No. 1 and in respect of the name of appellant No.6. Further the appellant-petitioners prayed for insertion of schedule of the land given in the plaint to the appellate decree.
6. According to learned senior counsel, Mr. Bhomwik, the errors in respect of father's name of appellant No.1 and name of appellant No.6 were errors apparent on the face of the record and it was simply a typographical errors, which escaped the notice of the advocates while presenting the memorandum of appeal. Considering that submission, the prayer for amendment in respect of the names have already been allowed in IA No.1561 of 2016.
7. Section 152 of CPC reads as follows:-
" Amendment of judgments, decrees or orders- Clerical or arithmetical mistakes in judgments, decree 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."
8. In view of the above provision correction of error in the judgment/decree arising from accidental slip or omission may be made at Page 4 of 7 IA NO.1453 OF 2016 IN RFA No.1 of 2011(D/O) any time by the Court either on its own motion or on application of the parties.
9. The appellate judgment and decree has been passed by this Court but the litigation has not yet completed since the execution of the decree has not been made. It is a settled position of law that the suit continues till the decree is finally executed. The Supreme Court in the case of Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. & Ors reported in AIR 2008 SC 225 in para 19 of the judgment observed:-
" Code of Civil Procedure recognises the inherent power of the Court. It is not only confined to the amendment of the judgment or decree as envisaged under Section 152 of the Code but also inherent power in general. The Courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the Court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion , should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the Court both in exercise of its power under Section 152 as also under Section 151 of the Code of Civil Procedure. Such a power of the Court is well recognized."
10. This Court in the case of Sukhendu Bikash Lashkar Vs. Narayan Chandra Bhowmik reported in 2012 (3) GLT 899 in para 40 and 59 of the judgment observed thus:-
"40. On proper survey of Section 152 of the CPC, it appears that the said provisions has authorized a Court to amend not only the clerical error committed by the Court itself, but also the error may have occurred on the ground of mistake of the parties in their pleadings as well as the mistake in the decree occurred due to such error in the plaint being copied such mistake by the Court."
59. In view of the above position of law stated by the Apex Court as well as various High Courts, there is no hesitation in the mind of this Court that the mistake committed by the plaintiff while giving the description of the plot number in the schedule to the plaint is an accidental slip or typographical error and the said error cropped up in the decree can be corrected even after the decree was passed without first amending the plaint in exercising Page 5 of 7 IA NO.1453 OF 2016 IN RFA No.1 of 2011(D/O) of power under Section 152 CPC, particularly, when the suit property is identifiable for avoiding injustice and doing substantial justice. More so, a court is also clothed with inherent power under Section 151 of CPC to face such a situation."
11. Since the prayer of amendment in respect of the memorandum of appeal has already been allowed, I find no reason at all to refuse the prayer of amendment to the decree passed by this Court which was pursuant to the judgment passed by this Court.
12. The Registry is, therefore, directed to make correction in respect of the father's name of appellant No.1 as 'Ramesh Chandra Dutta' in place of 'Himesh Chandra Dutta' and the name of appellant No.6 as 'Manash Kanti Roy' in place of 'Naresh Kanti Roy'. Since the memorandum of appeal has already been corrected the decree also may be amended accordingly.
13. Learned senior counsel, Mr. Bhowmik also prayed for incorporating the schedule of the land as described in the plaint of the appellate decree. Learned counsel, Mr. Pal for respondent Nos.2 & 3 has submitted that this Court has given a clear finding that the land sold to respondent Nos.2 & 3 by the respondent No.1 are not to be disturbed and that those sale by respondent No.1 to respondent No.2 & 3 were correctly made. So, if the entire land as described in the schedule of the plaint is incorporated in the appellate decree, the executing Court may be mis-led while executing the decree.
14. Learned counsel, Mr. Pal has further submitted that the decree passed by the Trial Court, according to law merged with the decree passed by the appellate Court. So, it is automatic that the decree will be executed according to the decision of this Court and that the sale made by defendant-respondent No.1 to the defendant-respondent Nos.2 & 3 cannot be attracted by the decree for execution. So, mentioning or non-mentioning Page 6 of 7 IA NO.1453 OF 2016 IN RFA No.1 of 2011(D/O) of the land described in the schedule of the plaint in the appellate decree is of no consequence.
15. I, therefore, find no justification at all to direct that in the appellant decree the schedule of the land as described in the plaint should be inserted. So, that part of the prayer made by learned senior counsel, Mr. Bhowmik is not entertained.
16. The Interlocutory Application accordingly stands disposed of and the Registry is directed to make correction of the decree accordingly.
JUDGE suhanjit Page 7 of 7 IA NO.1453 OF 2016 IN RFA No.1 of 2011(D/O)