P L D 1964 (W (PLP)

(2) Defendant will be entitled to a decree as prayed with costs against the third party namely, Pakistan Mutual Owners Insurance Co., Ltd., under rule 171(1), Sind Chief Court Rules (O. S.) in default of appearance after proper service of third party notice. (3) In consideration of plaintiff having agreed not to file execution or otherwise claim or enforce the decretal amount and/or costs thereof against the defendant, the defendant hereby agrees to execute and recover the decretal amount of costs from the third party or at the request of the plaintiff to empower the plaintiff to recover the same." It was in these terms that a decree was passed and prepared by the Court.

3. On 9th May 1960, both appellants Nos. I and 2 filed an application for the amendment of the decree under section 152 read with section 151, C. P. C. It was stated in the accompanying affidavit that the decree for certain errors of grammatical nature is not strictly in conformity with the judgment and at the time of drawing up the decree the necessary tense used grammatically should have been changed to make it in consonance with the order of the Court but inadvertently it was not done. It was, therefore, prayed that in para. I of the Schedule in the first line the word "will" in between the words "there" and "be" be deleted. Similarly the tense used may be changed so as to incorporate the rear intention of the parties that an effective decree be passed against appellant No. 2 and the third party. The application was contested on behalf of the respondent.

4. The learned Single Judge dismissed the application. In his opinion since no decree was passed against appellant No. 2 and there was no intention to pass a decree simultaneously against the third party or had that effect, the amendment sought for is not an amendment of any error in the preparation of the decree. In this connection the learned Single Judge observed as under :‑ In the present case no decree had been passed against the defendant, nor had he sought the leave of the Court to apply for a decree against the third party before satisfying that decree, and as such I cannot hold either that it was the intention of the Court to pass a decree simultaneously against the third party on 2‑I1‑1957 or its order quoted above has that effect. I am, therefore, of the view that the amendment sought for is not an amendment of an error arising from an incidental slip or omission nor is it an error of the office in preparation of the decree I, therefore, cannot order the amendment of the decree as prayed for by the plaintiff. It will of course be open to him to apply for a decree against the third party. Appellants have challenged this order in this Letters Patent Appeal.

5. After hearing the learned counsel for the parties we are satisfied that the learned Single Judge was perfectly justified in dismissing the application for the amendment of the decree. We have, however, reached this conclusion for different reasons. The legal position in such cases is absolutely clear. It is open to the Court where a consent decree is not in accordance with the term, of the agreement to exercise its power under section 151, C. P. C for bringing it into conformity with the agreement. But it cannot be exercised in these cases in which there is no such error or variance between the decree and the terms incorporated in the compromise petition. In the present case, it is quite clear from the decree that it contains all the terms incorporated in the compromise petition. These have been reproduce verbatim in the decree and it cannot be held that any clerical error or mistake has been committed in that respect. In our view the decree cannot be allowed to be amended merely on the ground that the compromise petition did not reflect the real intention of the parties and is bad for mutual mistake of using wrong tense. For that amendment of the decree is not a proper remedy

6. It was urged by the appellant's counsel that the learned Single Judge has erred in holding that no decree had been passed against appellant No.

2. In this connection he referred us to the order recording the compromise which is as under :‑ "Decree in terms of compromise. Third party and his counsel are absent." In our view what the learned Single Judge meant was that no effective decree was passed against the defendant otherwise it is quite clear on the above order that appellant No. 1's claim has been accepted in toto and a consent decree was passed against appellant No.

2. It is further clear that on the conditions incor porated in the compromise petition the decree was not executable against him.

7. Similarly the next contention that under the compromise simultaneously a decree was passed against the respondent third party is without force. This is apparent from clause (2) of the compromise in which it is stated that appellant No. 2 will be entitled to obtain a decree under Rule 171(1) against the Insurance company in default of appearance after proper service of third party notice. Thus it cannot be said that a decree had been simultaneously passed against the third party. In fact this is not even contemplated by Rule 171(1). There seems to be some mis conception about the applicability of this rule on third party. It is quite correct that under Chapter IX of the Sind Chief Court Rules (O. S.) relating to third party procedure it is open to a defendant in a suit to apply for the third party notice against a party from whom he claims contribution or indemnity with the permission of the Court. There is no dispute that appellants No. 2's motor car being insured with the respondent insurance company for third party risk, he is entitled to claim contribution from them if any damages are awarded against him and this chapter is applicable to this case. This result is also achieved under section 96 of the Motor Vehicles Act, 1939 if a notice about the bringing of an action against the insured is given to the insurer to enable it to defend it on the grounds mentioned in section 96(2) of the Motor Vehicles Act. The only difference is that the third party procedure is solely for the benefit of the defendant whereas the above‑mentioned provision of the Motor Vehicles Act is both for the plaintiff and the defendant. Under the third party procedure, a defendant is entitled under rule 168 to apply for the third party notice against a party from whom he is entitled to contribution or indemnity with the leave of the Court. Under rule 169 the third party has a right to defend the suit upon the service of the notice. Rule 170 provides that in case the third party desires to dispute the plaintiff's claim, he must enter an appearance to contest his liability. If he fails to appear or commits default, the result would be that the third party shall be deemed to admit the validity of, and shall be bound by, the decree obtained against the defendant which may even be by consent. This is followed by rule 171 sub‑clause (1) referred to in the compromise application. It will therefore, be useful to reproduce rule 171 (1) of the Sind Chief Court Rules (O. S.), which is in the following terms "171 (1).‑Where a third party makes default in entering an appearance in the suit or delivering any pleading which he has been ordered to deliver and a decree has been passed against the defendant giving the notice by default such defendant shall, on an application made for a motion in that behalf, be entitled at any time after satisfaction of the decree against himself, or before such satisfaction by leave of the Court, to a decree against the third party to the extent of any contribution or indemnity claimed in the third party notice." It is difficult to appreciate how this rule could be applied to the facts of this case. On the plain reading of this sub‑rule, it applies only to those cases in which a decree has been passed against the defendant giving the notice to the third party by default. In other words, it would be applicable in a case where a decree has been passed ex parte against the defendant, who gave third party notice. The word "default" refers to that of the defendant and not of the third party. It would not apply to a case where a default is committed by the third party. This is quite obvious on the language of the above‑mentioned rule. We are fortified in our view by the rules of the English practice on the point, from which the relevant Chief Court Rules have derived their source. In English Practice Order XIV A, rule 6 deals with this point which is reproduced below :‑‑ "Where a third party makes default in entering an appearance or delivering any pleading which he has been ordered to deliver and the defendant giving the notice suffers judgment by default, such defendant shall be entitled at any time, after satisfaction of the judgment against himself, or before such satisfaction by leave of the Court or Judge, to enter judgment against the third party to the extent of any contribution or indemnity claimed in the third party notice, or by leave of the Court of Judge to enter such judgment in, respect of any other relief or remedy claimed as the Court or a Judge shall direct. Provided .. It would thus be noticed that in the above‑mentioned rule the language used is more clear than that used in rule 171(1) of the Sind Chief Court Rules. However, the object of both the rules is the same. It, therefore, seems to us that rule 171 applies only to those cases where a third party makes default in entering an appearance in the suit or delivering any pleading which he has been ordered to deliver and a decree has been passed against the defendant giving the notice by default, such defendant shall, on an application made for a motion in that behalf, be entitled at any time after satisfaction of the decree against himself, or before such satisfaction by leave of the Court to a decree against the third party to the extent of any contribution or indemnity claimed in the third party notice. It is not disputed that in the present case no decree has been passed against appellant No. 2/defendant by default. It is a consent decree and, therefore, rule 171(1) of the Sind Chief Court Rules (O. S.) has no application.

8. It would, however, appear that this is one of those cases in which a consent decree has been passed against the defendant after service of notice to the third party who has committed default. Prima facie in such cases rule 170 would apply. We have taken pains to discuss this point at length to demonstrate that even if it is accepted that the intention of the parties was to obtain simultaneous decree against third party it could not possibly be obtained under rule 171(1). There is no doubt that due to misapplication of the relevant rule the appellants are in great difficulty but that cannot change the position in law. Prima facie it is still open to the appellant to consider the effect of rule 170 on the facts of this case, read with section 96 of the Motor Vehicles Act. In this of course, the appellants shall have to act according to the legal advice. No redress can be given to the appellants in this appeal.

9. In the result the appeal is dismissed with no order as to costs. K. B. A. Appeal dismissed.