P L D 1960 (W (PLP)

(c) Civil Procedure Code (V of 1908)

Ss. 151 & 152‑Decree in accordance with judgment‑Application under Ss. 151 & 152 to correct mistakes not competent. A conscious judgment followed by a decree, which is in accordance with the judgment, could not be described to be in the realm of clerical or arithmetical mistakes or err6rs or acciden tal slip or omission. (d) Civil Procedure Code (V of 1908)

S. 96‑Decree not in accordance with compromise of parties‑Appeal competent‑Separate suit to set aside decree also competent. Said Akbar for Petitioners. Muhammad Bashir for Respondent. Date of hearing : 18th February 1960. This petition is directed against the order dated the 4th of October 1958, passed by the Senior Civil Judge, Rawalpindi, on an application presented to him under sections 151 and 152 of the Code of Civil Procedure in a Civil Suit No. 243 of 1954. 2. The relevant facts are that Muhammad Ibrahim brought a suit against Qaim Din and Mst. Zaineb Bi petitioners. Mst. Zaineb Bi is sister of Muhammad Ibrahim and Qaim Din is husband of Mst. Zaineb Bi. The suit was for a declaration that the house in dispute belonged to him and the defendants petitioners were occupying the premises on sufferance and would not vacate the house on being asked and a decree for possession was sought against them. The suit was decreed by the trial Court. On appeal (Regular First Appeal No. 93 of 1955), this Court upset that decision on the finding that the custom was not the rule of decision, on the basis of which the claim had been decreed by the trial Court. The case was accordingly remanded, for another sister of Muhammad Ibrahim, Mst. Aishah was not a party to the case. She was, under orders of this Court, to be impleaded as a party and Muhammad Ibrahim was permitted, if so advised, to have his plaint amended so as to claim possession by partition. On remand, the plaint was amended and Mst. Aishah was added as a party. Mst. Aishah did not appear in spite of service and proceedings were ex‑parte against her. The parties barring Mst. Aishah, against whom proceedings were ex‑parte, compro mised and according to the compromise one‑half of the house was to be decreed in favour of Muhammad Ibrahim plaintiff and to the extent of the other half it was to be dismissed. The Court gave effect to the compromise by decreeing the claim to the extent of one‑half in favour of Muhammad Ibrahim respondent, but directed that the other half was to be divided between the remain ing two sisters of Muhammad Ibrahim plaintiff, who were defen dants on the record. Mst. Aishah, after the decree, moved for separate possession by the division of her share as well. Muhammad Ibrahim respondent subsequently moved that Mst. Aishah had transferred her share in his favour and that three fourths instead of one‑half of the house should be partitioned in his favour and the possession delivered to him. The decree in this case was passed on the 31st of January 1958, when the state ments of the parties were recorded and then the decree passed in terms of the compromise. The separation of Muhammad Ibrahim's share was ordered on the 3rd of February 1958. This led to an application by the petitioners for amendment of the decree on the ground that it was not in accordance with the terms of the compromise. By his order dated the 4th October 1958, the learned Senior Civil Judge dismissed that application. Ire found that he had committed no error and what he understood on the parties' statements was that one‑half of the house was to go to Muhammad Ibrahim respondent and on the pleadings it was implicit that the right of the other two sisters to share equally in the remaining half was recognized. On that finding, the learned Senior Civil Judge rejected the application. He, found that the remedy, if any, of the petitioners lay in filing an appeal and not to have moved him for amendment of the decree under sections 151 or 152 of the Code of Civil Procedure. 3. The first difficulty in the way of the learned counsel for the petitioners is that no revision is competent in this case. Section 115 of the Code of Civil Procedure confers right. of revision only in those cases where otherwise an appeal does not lie. The learned counsel for the petitioners has conceded that on the facts presented by him, as the decree travelled beyond the terms of compromise, an appeal was competent. Section 96 of the Code of Civil Procedure shuts out appeals against decrees which give effect to the consent of the parties but not where the gravemen of the charge is that it has travelled beyond consent. There was, therefore, no bar of section 96 to the entertainment) of the appeal in the present case if the petitioners had pursued that remedy; That not having been done, this Court has no jurisdic tion in revision to interfere with this order. 4. In order to meet this case, the learned counsel for the peti tioners has contended on the authority of Rab Nawaz and another v. Zaman and others (I L R 9 Lah. 176), Tirath Ram v. Deoki and others (A I R 1929 Lah. 254 (1)), Ganesh Das and others v. Kaki Bai (A I R 1929 Lah. 400), Sahadeo Gir v. Deo Dutt Misir and others (I L R 37 All. 323), Karimunnisa Begum v. Kaji Mir Jamaluddin and others (A I R 1937 Bom. 457) and Gajanand Sha and others v. Dayanand Thakur (A I R 1943 Pat. 127), that a revision is competent in the circumstances of this case. It becomes necessary on the arguments, as presented, to examine these' authorities. In Rab Nawaz and another v. Zaman and others, the facts were that there was a compromise before the learned District Judge, according to which the defendants were to make a payment of Rs. 100 within four months of the date of the com promise and on that happening the plaintiffs' suit was taken to be dismissed and in case they failed to make the payment the suit was taken to be decreed. The condition with respect to the payment of Rs. 100 was omitted from the decree, which followed the compromise. The learned District Judge, on being moved under section 151, corrected the omission. An appeal was taken against that order. An objection was taken to the appeal, for the decree in the amended form was according to the compromise and could not have formed the subject‑matter of the appeal. It was prayed that it may be treated as a revision and was urged that the Court had no jurisdiction to amend as it did. This plea was repelled and it was found that under section 152 of the Code of Civil Procedure the Court had the necessary jurisdiction and the order of the learned District Judge amending the decree was upheld. This is no authority for the proposition which is before me, namely, that when an appeal does lie whether a revision could still have been entertained. This authority on the last analysis goes against the proposition advanced by the learned counsel for the petitioners for there can be no mistaking about the fact that if an appeal is competent on the clear language of the statute, no revision could have been entertained. In Tirath Ram v. Deoki and others, the trial Judge, who had been moved for amendment, without going into the merits, said that he had no jurisdiction under section 152. A revision was directed against that order, for the Court had declined jurisdiction, which in truth vested in it under the law Similarly in the case reported as Ganesh Das and others v. Kaki Bai, the amendment of the decree was sought, which was passed by the predecessor of the Judge who was called upon to determine it and on the facts stated he said that he had no jurisdiction to under section 152, Code of Civil Procedure. On the facts stated, the jurisdiction was there and it was ruled that his refusal to examine the merits was affected by an error of jurisdiction. In Sahadeo Gir v. Deo Dutt Misir and others, the refusal was by the trial Court on the erroneous assumption that It had no jurisdiction. In Karimunnisa Begum v. Kaji Mir Jamaluddin and others, on the facts found by the trial Court, again it was found that the refusal by the trial Court to assume jurisdic tion was on an erroneous construction of the law and in Gajanand Sha and others v. Dayanand Thakur, the Court declined to examine the merits on the ground that it bad no jurisdiction to amend the decree. It is clear, therefore, that a Court of revision is seized of jurisdiction to interfere with an order passed under section 151 or section 152 of the Civil Procedure Code if the Court had declined jurisdiction on the erroneous assumption that B it had no jurisdiction on the admitted facts to grant him the necessary relief. This is a view of the law with which I am in respectful agreement. In the present case, however, the trial Judge committed no error which could fall either within the admit of section' 152 of the Code of Civil Procedure. He gave a judgment which reflected truly what he intended to give and the decree is in accordance with the judgment. He has supported his decree by reasons which prompted him to pass the order that he did. A conscious judgment followed by a decree, which is in accord ance with the judgment, could not be described to be in the realm of clerical or arithmetical mistakes or errors or accidental slip or omission. The order, subject‑matter of revision, itself is a complete answer to the present petition for the learned Senior Civil Judge says that he took the decision which is incorporated in the decree and still considers that to be the only correct decision. This should be enough to dispose of this petition, for the true remedy of the petitioners was in going up in appeal against the original order or perhaps by collateral attack by means of a o separate suit founded on the plea that it travelled beyond the terms of the compromise. There is no force in this petition, which is dismissed with costs. K.M.A. Petition dismissed,