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Judgment
Satyanarayana Raju, J.—The 1st defendant is the appellant in this appeal which arises out of the final decree proceedings in O. S. No. 1 of 1948 on the file of the Court of the Subordinate Judge, Kurnool.
The 1st plaintiff was the brother of defendants 1 to 5. The 1st plaintiff having died during the course of the final decree proceedings, his sons and widow were added as plaintiffs 2 to 6 and they are respondents 1 to 5 in this appeal. The 6th defendant is the undivided son of the 1st defendant. Defendants 7 to 10 were impleaded as pro forma defendants to the suit on the ground that they had some interest in the plaint mentioned businesses before they were wound up.
The circumstances which have culminated in this appeal are somewhat peculiar and it is necessary to state them in some detail. On June 16, 1945, the 1st plaintiff instituted O. S. No. 27 of 1945 on the file of the District Court, Kurnool (which was subsequently transferred to the Sub Court and there re-numbered as O. S. No. 1 of 1948), for the issue of a mandatory injunction directing defendants 1 to 6 to produce into Court the account-books relating to the money-lending business conducted by the 1st defendant and the businesses carried on in the four firms mentioned in the plaint; for rendition of accounts of the said businesses, and for a decree for his 1/6th share in the ascertained amounts.
Defendants 1, 3 and 5 resisted the suit inter alia on the grounds that they were not liable to render an account; that all the family properties had already been partitioned in 1939; and that the plaintiff was not entitled to any share in any of the plaint schedule properties. The 6th defendant adopted the contentions of the above defendants. Defendants 2 and 4 practically supported the plaintiff''s case and claimed their shares in the suit properties.
On December 14, 1946, the Court framed issues. Sometime later, on January 6, 1947, certain additional issues were framed. Thereafter the suit made a leisurely progress. Eventually, on January 28, 1949, the trial of the suit commenced with the examination of the plaintiff as P. W. 1 and the 1st defendant as D. W. 1. The suit was then adjourned to February 3, 1949, as it was reported that the parties were contemplating settlement of the suit. On the last mentioned date, the 1st plaintiff and defendants 1 to 8 filed a compromise petition under O. 23, R. 3, of the Code of Civil Procedure. According to the terms of the compromise, the parties agreed that accounts relating to the money-lending business and to the four firms mentioned in the plaint should be taken from December 2, 1936, and that R. C. Subbaiah, Advocate should be appointed Commissioner to look into the accounts and ascertain the assets and liabilities of the money-lending business and the firms. The controversy in the appeal really turns upon the construction of clause 2 of the compromise petition, and we will refer to it later. The compromise petition prayed that the Court should pass a preliminary decree in its terms.
On February 7, 1949, the Court passed the following order on the petition:
Defendants 3, 2 and 8 admit the execution and terms of the compromise. Recorded.''''
The rest of the story can be told quite shortly. On February 22, 1949, the learned Subordinate Judge pronounced a formal judgment recording findings on all the issues in terms of the compromise. The operative portion of the judgment ran as follows:
Mr. R. C. Subbaiah, Advocate, Kurnool, is appointed Commissioner to take an account of the assets and liabilities or profit and loss of the abovenamed money-lending business belonging to the family and in the above mentioned four concerns from 2-12-1936 onwards, by looking into the account books relating to the said concerns and moneylending business, and to divide the same into six equal shares............The Commissioner is directed to submit his report within one month from this date... The parties will be at liberty to apply for the passing of a final decree after the Commissioner submits his report into Court after ascertaining the assets and liabilities of the concerns.
The preliminary decree which was drawn up provided inter alia for the appointment of the Commissioner and gave liberty to the parties to apply for passing a final decree after the Commissioner submitted his report. Nearly four years later, on April 8, 1953, the Commissioner filed his report. After adjusting the several amounts due and payable as between the plaintiff and defendants 1 to 5 inter se, he found that the assets available for division were Rs. 33,496/-. Both parties filed objections to the said report. When on November 30th, 1956, the matter came up for hearing, plaintiffs 2 to 5 raised a preliminary objection that having regard to clause 2 of the compromise petition, the parties were not entitled to file objections to the Commissioner''s findings. Holding that the parties were bound by the terms of the compromise which did not give any scope for any of them to attack the correctness of the findings of the Commissioner, the trial judge accepted the findings and passed a final decree in pursuance of the Commissioner''s report. Against the said final decree, the last defendant has preferred this appeal.
In support of the appeal, it is contended that the trial Judge had recorded findings on all the issues framed in the suit: that the preliminary decree passed by him did not incorporate the clause in the memorandum of compromise whereby the parties had agreed to abide by the findings of the Commissioner; and that, therefore, it was incumbent upon the lower Court to consider the appellants objections to the Commissioner''s report.
After this appeal was heard in part, plaintiffs 2 to 6, the legal representatives of the 1st plaintiff, defendants 2 and 3 and the 11th defendant, the widow of the 4th defendant, filed a fresh application, C. M. P. No. 6502 of 1961 for amendment of the preliminary decree. In the affidavit of the 3rd defendant filed in support of the petition, it is alleged that under the compromise recorded by the Court, the parties agreed that a decree should be passed pursuant to the findings of the Commissioner, that the said compromise was lawful, and that by way of abundant caution they were advised to file an application for amendment to bring the preliminary decree in conformity with the terms of the memorandum of compromise which was recorded by the Court.
In the counter-affidavit filed by him, the appellant averred that there had in fact been no consent to the clause providing that the parties should be bound by the findings of the Commissioner and that, in any event, there had been a waiver of the clause as could be seen from the fact that it was not embodied in the preliminary decree. This particular averment in the counter-affidavit that there had been a waiver was not, however, eventually pressed by the learned counsel for the appellant. That apart, there is little substance in this averment because there is nothing on record to justify it.
Mr. Somasundaram, has, however, argued that this is not a case in which the respondents could invoke the provisions of S. 152 of the Code of Civil Procedure. On the other hand, it is contended by Mr. Krishna Rao, learned counsel for the respondents that the lower Court had in fact, incorporated clause 2 of the compromise petition in the preliminary decree making the findings of the Commissioner final and binding on the parties. Alternatively it is submitted that in case the conclusion is reached that there is an error arising from an accidental omission, this Court should amend the preliminary decree so as to bring it in conformity with the terms of the compromise petition.
On the above contentions, two questions arise for decision in this appeal:
Whether clause 2 of the compromise petition, which provided that the parties should be bound by the findings of the Commissioner, was embodied in the preliminary decree passed by the Court?
Whether this Court has jurisdiction to amend the preliminary decree so as to bring it in conformity with the terms of the compromise petition?
With regard to the first of the questions, it will be useful at the outset, to set out the provisions of Order 23, Rule 3 of the CPC which are as follows:
Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.
The terms of Order 23, Rule 3 are imperative and the Court if statisfied that the suit has been compromised, is bound to pass a decree in terms thereof. The jurisdiction of the Court, therefore, is to record the agreement between the parties and to adopt it as its own decree in so far as it relates to the suit. It has, however, the power and is bound to consider the question whether file compromise is a lawful one.
The basis of a compromise decree is, of course, a contract between the parties to the litigation because, where it is proved to the satisfaction of the Court that there is a lawful compromise, the Court does not itself decide the disputes between the parties. It only embodies the decision of the parties themselves and make their decision its own "giving it the force and solemnity of its own adjudication". The arrangement between the parties is adopted by the Court and acquires all the solemnity of a judicial pronouncement. The parties to the decree cannot, therefore, put an end to it at their pleasure in the manner that they could rescind a mere contract.
From the terms of Order 23, Rule 3, it is clear that where a decree is passed by consent of parties, it should always so appear on the face of the decree when drawn up. Now, in the present case, the compromise petition filed by the parties invited the Court to pass a preliminary decree in terms of the compromise, for the ultimate paragraph in the petition expressly stated thus:
It is therefore prayed that the Hon''ble Court be pleased to pass a preliminary decree in the above terms.
The question then is whether clause 2 of the compromise partition was embodied in the preliminary decree passed by the Court. Clause 2 of the compromise petition provided as follows:
That in pursuance of the report and the findings submitted by the Commissioner after looking into the accounts as aforesaid, ''the Court be pleased to pass a decree in terms of the said findings,'' and the Commissioner and the parties be at liberty to apply to the Court for directions; that in regard to costs of this suit, it is agreed between the parties that the plaintiff and defendants 1 to 5 should bear in equal proportion the amount of the Court-fee paid on the plaint (Italics (here in) ours).
Clause 7 of the preliminary decree was as follows:
that the parties shall be at liberty to apply for the passing of a final decree after the Commissioner submits his report after ascertaining the assets and liabilities of the concerns.
It is important to note that Rule 3 of Order 23 does not require that the decree passed by the Court should set out the compromise verbatim. It is enough if the terms of the compromise are indicated with sufficient clearness. It is to be observed that the above clause in the decree does really incorporate clause 2 of the compromise petition. This is, however, disputed, but on a fair reading of the decree, it is clear that though clause 7 did not embody clause 2 of the petition verbatim, it was necessarily involved in and was the basis of what was embodied in the decree. On this conclusion, it must be held that the preliminary decree precluded the appellant from urging objections to the Commissioner''s report and the lower Court was right in embodying the findings of the Commissioner in the final decree.
Mr. Somasundaram, learned counsel for the appellant reargued that the trial Judge, however, observed a formal Judgment recording findings an all the issues and that the preliminary decree nowhere recited that it was drawn up pursuant to the terms of the compromise. The learned Counsel is no doubt right in this submission. There was no need for the trial Judge to have recorded formal findings on all the issues though it is true that those findings were in terms of the memorandum of compromise. Indeed the omission of the lower Court to adhere strictly to the terms of Order 23, Rule 3 has resulted in the present litigation.
Mr. Krishna Rao has contended that there is no doubt that the Court intended that the terms of the compromise petition should be embodied in the preliminary decree but if for any reason it is held that there was a defect in the frame of the decree, this Court should amend the same in the exercise of its powers u/s 152, C. P. C. It is laid down in Section 152 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. The scope of the section has been considered in several cases, of which it will be sufficient to cite M. Rahman v. Harendra Nath, 21 Ind Cas 115 (Cal). That case, like the present one, was concerned with a litigation which had been adjusted by a compromise between the parties. A decree was drawn up which failed to give effect to the terms of the compromise and the plaintiffs came to Court praying that the decree might be amended and brought into conformity with the compromise. The following observations of the learned Judges are opposite in the present context
If S. 152 does not authorise a Court to remedy, as far as it can, errors in the formal expression of its order occasioned by its own indolence, it is difficult to appreciate the use of the section. Here there is no doubt what the compromises were. Nor is there any doubt that the Court intended those compromises to be embodied in the decree. The fact that they were not so embodied was due to the gross negligence but it cannot be supposed that the decree was drawn up in this form and accepted by the Court and the pleaders intentionally. Its form, therefore, may reasonably be regarded as unintentional and accidental and therefore, capable of correction u/s 152.
This decision was followed in Gulab Chand Ranka and Another Vs. Musammat Kalabati Sarkarin,
But it is argued by Mr. Somasundaram that the preliminary decree passed by the Court not having been appealed from and become final, it is not now open to the respondents to seek an amendment of the decree in accordance with the terms of the compromise petition. The learned counsel relied upon the decision of the Privy Council in Piyaratana v. Wahareke, 54 Cal WN 568 (PC) as supporting his contention that this is not the type of case which falls within the ambit of Section 152 of the Code of Civil Procedure. That decision was rendered by the Privy Council in an appeal arising from a judgment of the Judicial Committee at Ceylon. There their Lordships had to interpret the terms of Section 189 of the CPC (Ceylon) which is in pari materia with the provisions of Section 152 of the Code of Civil Procedure, 1908. In order to understand the precise scope of that decision it is necessary to scrutinise the facts of that case. That litigation originally started in the District Court of Kandy. The question at issue related to the ownership and right to possession of a monastic building known as "Meda Pansala" as appurtenant to a larger monastic temple known as "Degaldoruwa Vihare". The plaint did not describe the property claimed, by metes and bounds or by reference to any plan. The District Judge held that the plaintiffs had proved their title to the Meda Pansla but that such title was barred by limitation. Accordingly he dismissed the action. On appeal, the Supreme Court agreed with the District judge in thinking that the plaintiffs had proved their title but differed from him on the question of limitation and remanded the suit for fresh disposal to the District Judge.
Subsequent to the remand it was agreed between the parties that a commission should be issued to a surveyor named Spencer to make a plan of the Meda Pansala. The Commissioner prepared a plan in which he showed the Meda Pansala as consisting of buildings and some open land which was edged green on the plan. The District Judge granted a decree declaring that the plaintiffs were entitled to possession of the Meda Pansala as an appurtenance and endowment of the Degaldoruwa Vihare. There was an unsuccessful appeal against the decree of the District Judge. Subsequently an application was presented to the District Court praying that the decree be amended by including in the declaration of the plaintiffs'' title the right to the land edged green in Spencer''s plan. The basis of the petition was that there was a variance between the judgment and the decree. The District Judge granted the amendment. In appeal the Supreme Court set aside the order of the District Judge. Their Lordships of the Privy Council reached the conclusion that there was no clerical error or accidental omission in the decree and that the decree embodied the declaration which the Judge expressed himself as prepared to make. On this conclusion, it was held by their Lordships that the case did not fail within the scope of Section 189 of the Code of Ceylon. The ratio of the decision of their Lordships is that where a party to a decree applies for an amendment alleging variance between the judgment and the decree based thereupon, but the variation does not appear on a perusal of the judgment and the decree and the consideration of the applicant''s contention involves the construction of the judgment which is open to serious doubt, the case does not fall within the provisions of S. 189, corresponding to S. 152.
It is to be observed that the decision of their Lordships is clearly distinguishable. In the present case, clause 2 of the compromise petition did provide that parties should apply to the Court for passing a final decree pursuant to the findings of the Commissioner. As we have already held, this clause was embodied in the preliminary decree. Assuming however, that it was not so embodied, the application now presented before us seeks to bring the decree in conformity with the terms of the compromise petition. Here there is no doubt as to what the compromise was, nor is there any doubt that the Court intended the compromise to be embodied in the decree. The form of the decree may reasonably be regarded, in the words of the learned Judges in 21 Ind Cas 115 (Cal) as "unintentional and accidental and therefore, capable of correction" under S. 152 of the Code of Civil Procedure. Following the decisions in 21 Ind Cas 115 (Cal) and Gulab Chand Ranka and Another Vs. Musammat Kalabati Sarkarin, we hold that C. M. P. No. 6502 of 1961 should be allowed and it is ordered accordingly.
For the above reasons, we hold that the appellants are not entitled to question the findings of the Commissioner and that the conclusion reached by the lower Court is correct. This appeal, must therefore, fail and is dismissed with costs of respondents 1 to 7 and 14.