J. Abid Hussain Petitioner v. Mrs. R.K Paul And Another

This revison petition is against the orders of the District Munsif, Gooty, passed in I.A No. 119 of 1957, filed in O.S No. 448 of 1931, allowing an amendment of a compromise decree purporting to act under section 152, Civil Procedure Code. On behalf of the petitioner herein, objection is taken to the exercise of the discretion vested in the Court under section 152 as admittedly the interests of the third party have intervened, The question that arises for decision is about the nature of the power vested in a Court to corect or amend a decree so as to bring it in conformity with the judgment or the record of compromise, even though the rights of third parties have intervened in the meantime.

2. The following are the relevant facts: One S. Paul filed O.S No. 448 of 1931 in the District Munsif's Court, Gooty, against S.G Phillips, and it was compromised. The memo of compromise contained the terms agreed between the parties. The dispute in the main related to the closing of a sluice and for the removal of a newly construction latrine in the site of plaintiff Paul. The compromise found a solution to the satisfaction of the contestants. But the decree based upon it omitted the direction that the defendant Phillips should extend his wall up to the wall of one Durgamma, though the terms of compromise contained it. The compromise, which was entered into in 1931, and as entered in the decree was in force and acted upon by the partiei without let or hindrance; and it may be mentioned, the omission of this direction was not questioned at any time thereafter. While matters stood thus, the petitioner herein, Abid Hussain, acquired the rights from the legal representatives of the said Phillips. The petitioner also reconstructed the house without any obstruction or objection raised by any of the legal representatives of Paul though he did not extend the wail upto that of Durgamma. It is only in 1955 that the respondents instituted O.S No. 265 of 1955 on the file of the District Munsiff, Gooty, wherein they prayed for closing of ventilator and the removal of the latrine and for perpetual injunction for letting water into the lane by the petitioner herein. To substantiate their claim to the reliefs prayed for, these respondents have further taken the step of filing I.A No. 119 of 1957 under section 152, Civil Procedure Code, for carrying out the correction or causing the amendment of the decree. This the present petitioner objected to; but since the prayer of the respondents has been granted, this revision is preferred by defendant No. 5 in O.S No. 265 of 1955.

3. It may at once be stated that the power of the Court to correct a decree under section 152. Civil Procedure Code, at any time is not questioned before me. But Mr. A. Krishnayya, for the petitioner, questions the scope even when interests of third parties intervened; and secondly, the learned counsel urged that the conduct of the person applying for the amendment when he is guilty of laches has a bearing on the exercise of the discretion by a Court.

4. In support of the first point, the learned counsel for the petitioner relied upon two decisions of the Madras High Court. Narayana Iyer v. Biyari Bivi . 1922-43 M.L.J 559 is a case where the exercise of power under section 152, Civil Procedure Code, was considered by Old field and Ramesam, JJ. when rights of third parties who acted in good faith have intervened. The Division Bench relied upon the report of the House of Lords in Hatton v. Harris . L.R 1892 A.C 547., and ruled that even though no period of limitation is provided for application for the exercise of the discretion under section 152, an application for amendment should be rejected as too late if the rights of the third parties, acting in good faith, have intervened. In Butchiah v. Tayar Rao Naidu . 1931-60 M.L.J 721, another Division Bench consisting of Beasley, C.J and Walsh, J., were considering the amendment of defective decree though it was ordered when the decree was passed that it should be in terms of the compromise between the parties. When the decree was sought to be amended, the Division Bench refused to allow the amendment observing:

“……………………In any case, once third parties Intervene, an amendment should not be allowed so at to affect such third parties”.

5. In arriving at this conclusion, the decision in Hatton v. Harris, has again been relied upon by that Court. The principle regarding the exception to a general rule that a correction may be made at any time is enunciated in Hatton v. Harris, in the following words at page 558.

“…………………………there may possibly be cases in which an application to correct an error of this description would be too late. The rights of third parties may have intervened, based upon the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous, so as to disentitle the parties to the suit or those interested in it to come at so late a period and ask for the correction to be made. There might be a ground of that description which would induce the Tribunal to say “No; although this is a………….. slip, and one which would have been corrected at the time, you have delayed so long that you have allowed rights to grow up which it would now be unjust to prejudice, and it is impossible to make the correction”.

6. Thus while making it clear that the position is different when the rights of third parties come into existence, a certain stress has been laid, viz., that those rights should have been acquired in ignorance of any circumstances which would tend to show that the decree was erroneous. To the same or similar effect are the rulings of some of the other High Courts. The Calcutta High Court in C.K Mukhopadhya v. S.B Debi, recognises that vast as the powers of a Court to make a correction under section 152 are, the refusal of the discretion to make the amendment, where the exercise of that power offends against the principles of equity, should be taken as a recognised exception. The basis for this again has been that decision of the House of Lords. In the case reported in Bela Debi v. Bon Behary Roy, the impropriety of allowing an amendment to a decree after a long lapse of time, where laches could be attributed to a party applying for the amendment, has been pointed out. Emphasis is laid in Kiskori Mohan v. Changa Lal, that it is however an equally well-established fact that no amendment should be allowed if third parties had acquired rights, and/or where it would be inequitable or unjust to allow the rectification. Laches, under the particular circumstances of a case, might disentitle a party to relief under this section. It may be noted that in this Calcutta case, the amendment was sought for after ten years and the third party had acquired rights in the meanwhile, A decision of the Full Bench of the Oudh High Court indicates their inclination to agree with this principle though they had not to decide the same.

7. From the above, the following emerge: firstly, that though a correction could be made under section 152, Civil Procedure Code, at any time, such a thing is possible only as long as interests, of third parties do not intervene secondly, any inertia on the part of a person asking for the amendment should not be tolerated when the third parties acquire interests, though it is necessary that the third parties should have acted in good faith without the knowledge of the defective decree. When these elements could be found in a case, there is no gainsaying that, on the principles of equity, an exception to the rule contained in section 152, Civil Procedure Code, has been made operative by judicial dicta. It may, therefore, be said that the power of correction or amendment conceded by section 152, Civil Procedure Cede, is not so oblivious of considerations of equity arising in the case of third persons who have acquired rights.

8. Mr. R. Subba Rao for the respondents raised the contention that the cases relied upon by the other side have no bearing in regard to a compromise decree. He relied upon the decision in Jagat Singh v. Sangat Singh . 1940-2 M.L.J 769. He urged that the terms of compromise not correctly recorded in a decree do not give effect to the compromise as entered into between the parties and mistakes which have crept into the decree should be allowed to be rectified, not only at any stage but even after the third parties acquired any rights. He pointed out that what is sought to be enforced is the compromise as entered into and not a defective or mutilated one which has come into existence as a result of the inadvertence in drafting the decree. Indeed, support is found for this proposition in that decision of the Judicial Committee, as also on another decision of the Calcutta High Court reported in Muttiar Rahman v. Harendra Natk Mukherjee . 1913-21 I.C 115.. But they are clearly distingushable; for as in the instant case, what really matters is the ambit of power exercisable under section 152, Civil Procedure Code, even after the third party has acquired an interest and not the construction of the terms of the compromise as between the parties to the compromise. It is next urged that it is incumbent upon the 5th defendant, the petitioner herein, to have shown or made out how his rights are affected; for, otherwise, according to the learned counsel it may be taken that in objecting to the correction of the decree, the third party is not seeking a remedy of his own, but merely assuming an attitude of obstruction. But the facts here lead to the inference that is not so in the instant case. On the other hand, it is evident that the respondents have sought the amendment of the decree in O.S No. 448 of 1931 with a view to make use of it in O.S No. 265 of 1955 as against the present petitioner. Such being the case, no further proof as to how the right of the petitioner is affected need be insisted upon.

9. As has already been pointed out in the narration of facts, the petitioner has acquired the rights in the suit properties and has reconstructed the house. O.S No. 265 of 1955 filed by the respondents herein is to question the petitioner's right to have the ventilator and the latrine. The petitioner has also made an allegation that the respondents herein kept-by while the reconstruction of the building was going on. It is also evident from faces that from 1931 to 1957 the respondents did not move their little finger to have the decree in O.S No. 448 of 1931 amended. While so, there is, in my view, little doubt that the requirements necessary to bring the case under the exception of section 152 as recognised by judicial dicta have been made out in the instant case.

10. The result is that the correction or amendment by the lower Court should be set aside. This petition is therefore allowed with costs.

Revision allowed.