Holding

Section 152 CPC allows rectification only for clerical, arithmetical errors or accidental slips; the amendment to incorporate the agreement was not justified and is set aside.

Summary

Jayalakshmi Coelho and Oswald Joseph Coelho, married under the Special Marriage Act, executed a mutual‑consent divorce agreement on 26 July 1991 that also dealt with property and child‑custody matters. Their petition for divorce sought only a decree of divorce, and the Family Court granted it without incorporating the agreement’s ancillary terms. The husband later filed an application to modify the decree to include those terms, and the Family Court amended the decree accordingly. The wife challenged the amendment by filing a writ petition; the High Court upheld the amendment and the Division Bench affirmed it. The Supreme Court held that Section 152 of the Code of Civil Procedure permits rectification only for clerical, arithmetical errors or accidental slips, not for adding relief not prayed for, and found no evidence of such an error. Consequently, the Court set aside the amendment and allowed the appeal.

Issues considered

Whether the Family Court could amend the divorce decree to incorporate the terms of the parties' agreement under Section 152 CPC.
Whether the omission of the agreement terms in the original decree amounted to a clerical or accidental error justifying rectification.

Legislation cited

Code of Civil Procedure, 1908s. 152
Special Marriage Act, 1954s. 23, s. 28

Subjects

Section 152 CPCrectification of decreeinherent powers of courtmutual consent divorcefamily court amendmentclerical erroraccidental slipSpecial Marriage Act

Judgment

JAYALAKSHMICOELHO A
v.
'
OSWALD JOSEPH COELHO

FEBRUARY28, 2001

[D.P. MOHAPATRA AND BRIJESH KUMAR, JJ.] B

Code of Civil Procedure, 1908 :

Section 152-Amendment of Judgments, decrees or orders-Inherent
powers-Scope of-Held, power of rectification is confined only to clerical or C
arithmetical error or accidental slip or omission on the part of the Court-
Order or decree should contain or omit something which was intended to be
otherwise-No new arguments or re-arguments on merits required for such
rectification of mistake.
"I·
Rectification of Decree-Agreement between parties for divorce by mu- D
tual consent-Petition filed-Only decree for divorce prayed-Decree granted-
Subsequently, husband filing application for rectification of decree for failure
fo ask relief.in tenns of agreement-Only mandatory injunctions prayed in
application-No prayer made either in petition or application for incorporat-
ing terms and conditions ofagreement-No averment about any accidental slip
E
or omission by the Court-Held, under the facts applicatio~ for rectification of
decree misconi:eived and liable to be dismissed.

Appellant-wife and respondent-husband entered into an agreement
dated 26.7.1991 to dissolve their marriage hy mutual consent which also
contained clauses settling other issues amicably relating to their properties F
and custody of child, etc. According to the agreement, flat in which parties
had been residing ou certain terms and conditions, was to be transferred
by wife in the name or husband. Thereafter, petition for divorce by mutual

- consent was filed by parties wherein relief claimed was specifically for
decree for divorce alone which was granted by the Family Court. Thereaf.
ter, respondent moved an application for modification or decree on the
G
ground that parties being lay persons faUed to ask relier in terms of
agreement dated 26.7.1991 while passing of earlier decree and made prayers
for grant or mandatory injunction on the basis of the said agreement. The
Family Court allowed application for modification and amended decree
inserting all clauses or agreement dated 26.7.1991 in amended decree. H
207
208 SUPREME COURT REPORTS [2001) 2 S.C.R.
-
A Appellant-wife filed writ petition against the order of Family Court
amending earlier decree which was dismissed by the Single ,Judge and
confirmed in appeal by the Division Bench. Aggrieved by the judgment of
ihe Division Bench, wife has filed the present appeal.

Allowing the appeal, this Court
B
HELD: 1.1. In terms of Section 152 C.P.C., any error occurring in
the decree on account of arithmetical or clerical error or accidental slip
may he rectified hy the court. The principle behind the provision is that no
party should suffer due to mistake of the court and whatever is intended
by the court while passing the order of decree must be properly reflected
c therein, othecwise it would only he destructive to the principle of advanc-
ing the cause ~f justice. Hence, an unintentional mistake or the Court
which may prejudice cause of any party must be rectified. [215-E-FJ

1.2. Such inherent powers would generally be available to all courts
D and authorities irrespective of the fact whether the provisions contained
under Section 152 C.P.C. may or may not strictly apply to any particular
proceeding. In a matter where it is clear that something which the Court
intended to do but the same was accidentally slipped or any mistake creeps
in due to clerical or arithmetical mistake it would only advance the ends of
justice to enable the Court to rectify such mistake. But before exercise of
E such power the Court must he legally satisfied and arrive at a valid finding
that the order or the decree contaim or omits something which was in-
tended to he othernise, that is to say while passing the decree the court
must have in its mind that t!te order or the decree should he passed in a
particular manner but that intention is not translated into the decree or
F order due to clerical, arithmetical error or accidental slip. The facts and
circumstances may provide cine to the fact as to what was intended by the
court but unintentionally the same does not find mention in the order or
the judgment or sumethi~g which was not intended to be there stands
added to it. The power of rectification of clerical, arithmetical errors or
accidental slip does not empower the court to have a second thought over
G
the matter and to find that a better order or decree could or should be
passed. There should not he re-consideration of merits of the matter to
come to a conclusion that it would have been better and iu the fitness of
things to have passed an order as sought to he pa'5ed on rectification. On a
second thought court may find that it may have committed a mistake in
H passing an order in certain terms hut every such mistake does not permit
r'

JAYALAKSHMI COELHO v. OSWALD JOSEPH COELHO 209
its rectification in exercise of Court's inherent powers as contained under A
Section 152 C.P.C. It is to be confined to something initially intended but
left out or added against such intention. (217-B-F)

I.L. Janakiram Iyer and Ors. etc. v. PM. Nilakantalyer, AIR (1962) SC
633; Bhikhi Lal and Ors. v. 1hbeni and Ors.,AIR(1965) SC 1935 and Master
Construction Co. (P) Ltd. v. State of Orissa and Am:, AIR (1966) SC 1047, B
followed.

State of Bihar and Ant: v. Nilmani Sahu and Ant:, (1996) 11 SCC 528;
Bai Shakriben (dead) By Natwar Melsingh and Others v. Special Land Acqui-
sition O.fficer and Am:, (1996] 4 SCC 533 and Dwarkadas v. State of M.P. and C
Anr., (1999) 3 SCC 500, relied on.

The Assam Tea Corporation Ltd. v. Narayan Singh and Am:, AIR (1981)
Guwahati 41, approved.

2. In Paragraph 8 of the main petition for dissolution of the marriage
D
it has been averred that the agreement arrived at between the parties may
be treated as part and parcel of the petition while passing the order in the
case accordingly. The relief however claimed in the petition indicates that
specifically decree for divorce alone was prayed for. There was no prayer
to the effect that the agreement may be made a part of the decree or the
terms and conditions given in the agreement may be incorporated in the E
decree. Whatever forms part of the petition docs not automatically become
a part of the decree unless specifically it is so provided. It can only be kept
in mind while passing the decree. (219-E; 218-B-C]

3. The case of the respondent-husband in paragraph 3 of his applica-
F
tion for modification of the decree was that the parties being lay persons
without assistance of lawyers had failed to ask for the relief as per the
agreement in their prayer clause of petition for divorce. No averment of
inadvertence by reason of which court may not have included those terms
in the decree has been indicated in the application for modification of the
decree. It has not heen stated in the application for modification that the G
court wanted to or intended to pass order about transfer of flat but it was
not so ordered due to ariy clerical error or accidental slip. It is only an
effort to improve upon the case as taken up by the respondent in his
application. The prayer made in the application for modification of the
decree is for grant of orders of mandatory injunctions ol' different nature H
210 SUPREME COURT REPORTS [2001] 2 S.C.R.
A and in different terms. There is no prayer therein for incorporating the
terms and conditions of the agreement in the decree. So it is not something
which can he said to have been left out accidentally earlier. [219-A-B]

4. There is nothing on the record to indicate that the Family court
intended to incorporate the terms and conditions of the agreement in the
B decree. It would have been a different case if it was shown that the Court
intended to incorporate those terms but accidentally it slipped or the court
forgot to do so. But there is no material on the basis of which intention of
the family court can be inferred for ir.corporating the terms and condi-
tions of the agreement in the decree for divorce on the basis of which it can
c be said that whatever was intended by the court could not be reflected in
the decree. There is not even a whisper about the Memo of Agreement in
the narration made in the decree. The application for rectification of
decree was totally misconceived and was only liable to be dismissed rather
than to incorporate terms and conditions of the agreement in respect of
which no prayer was made in the application for modification nor in the
D
original petition for dissolution of marriage more particularly when no
accidental slip on the part of the Court was indicated in the application nor
the same being substantiated. [219-H; 220-A; HJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3609 of 1998.
E From the Judgment and Order dated I 7.2.98 of the Bombay High Court
in L.P.A. No. 204 of 1997 in W.P. No. 529 of 1997.

Ms. Indra Jaisingh, Ms. Vanita Bhargava, Rakhi Ray, for Ms. Bina
Gupta, for the Appellant.
F A.S. Bhasme anJ Manoj Kumar for the Respondent.

The Judgment of the Court was delivered by

BRUESH KUMAR, J. This appeal is preferred against the Judgment
and Order dated February I 7, 1998 passed by a Division Bench of the Bombay
G Higb Court in Letters Patent Appeal No.204of1997. The Court of the Principal
Judge, Family Court, Bombay, modified its earlier decree which order was
challenged by means of a Writ Petition. The Writ Petition was dismissed
upholding the order passed by the Principal Judge, Family Court. The im-
pugned order passed by the Division Bench confirmed the order of the learned
H Single Judge giving cause of grievance to the appellant. Hence, the present
JAYALAKSHMI COELHO v. OSWALD JOSEPH COELHO [BRIJESH KUMAR, J.] 211

appeal. A

We have heard Ms. Indra Jaising, learned Senior Counsel appearing for
the appellant and Shri A.S. Bhasme, learned counsel appearing for the respond-
ent.

The appellant Jayalakshmi Coelho and the respondent Oswald Joseph
Coelho got married on Janua1y 6, 1977 in accordance with the Special Mar-
riage Act, 1954. Out of the said wedlock, a female child Neisha Anne Coelho
was bom on August I, 1978. Later, however, differences seem to have arisen
between the appellant and her husband, ultimately, culminating into, the parties
agreeing for dissolution of their maniage and they entered into an agreement. c
to that effect on 26th July, 1991. It is stated in the agreement tliat it had become
impossible for them to live any longer as husband and wife so they had decided
to dissolve the marriage by mutual consent. They had also settled other issues
amicably relating to their properties and custody of the child etc. in te1ms as
indicated in the agreement.
D
According to the agreement, the flat in which the parties had been living
as husband and wife, on certain terms and conditions, was to be transferred by
the wife in the name of the husband. The other matters relating to jewelry,
ornaments, utensils, personal belongings etc. had also been mentioned in the
agreement as well as about the fixtmes and furniture in the house. It also E
mentioned about the custody of tl1e daughter.

The petition for divorce by mutual consent was filed in the Family Comt
at Bandra, Bombay on 21.8.1991 under Section 28 of the Special Marriage Act,
1954. Apart from other averments, made in the petition for mutual divorce, in
F
paragraph 8, it was mentioned that Flat No.11 in Mon-Bijou Cooperative
Housing Society was purchased by botl1 the parties out of their own ti.mas in
the year 1976. Though it was in the name of the appellant yet she was to
relinquish her right, title and interest in the said flat in the favour of the
respondent, namely, the husband, as per their agreement arrived at earlier on
26th of July, 1991. It was, thereafter, mentioned that the Memorandum of G
Agreement may be treated as part and parcel of the divorce petition and order
be passed accordingly.

However, in paragraph 14 of the petition, only the following reliefs were
prayed:-
H
212 SUPREME COURT REPORTS (2001] 2 S.C.R_
A "(a) that the marriage hetween the Petitioners solemnized on the 6th
day of January, 1977, at Bombay be dissolved by a decree of divorce; ~

(b) such other reliefs as this Hon'ble Court may deem fit think and
proper."

B The Family Com1 granted the decree as follows:-

"DECREE

IN THE FAMILY COURT AT BOMBAY
c PETITION NO. AA-1221OF1991

Jayalakshmi Coelho
Residing at No.2 Laxmi Bhawan,
Matunga, Bombay ____ Petitioner No. I

D And

Oswald Joseph Coelho
Residing at No.11, Mon-Bijou
Chimbai Road, Bandra Bombay _____ Petitioner No-2

E
I. Jayalakshmi Coelho and Oswald Joseph Coelho have filed this
joint petition under Section 23 of Special Man-iage Act, 1954
to get a decree of divorce by mutual consent

2. Maniage between the petitioners Jayalakshmi and Oswald took
F place m1der the provisions of the Special Marriage Act, 1954 at
Bombay on 6th January 1977. Thereafter tl1ey started dwelling
together at Bandra. Their marital life was also fruitful by birth
of daughter Neisha Anne Coelho, who was born on !st August
1978. But it seems that tl1ereafter differences arose between tl1e
two and in July I 986, Jayalakshmi left the matrimonial house
and went to her parental house. Botl1 the parties decided to take
divorce by inutual consent

3. This petition is coming on 7-3.1992 before Slni S.D. Pandit,
Judge, Family Cour~ Bandra. In presence of Petitioner No. I and
H 2, suit is decreed_
JAYALAKSllMI COELHO,_ OSWALD JOSEPH COELHO {BRIJESH KUMAR. J.] 213

ORDER A
Maniage between the petitioners Jayalakslnni and Oswald 1s
hereby <lisrnlved by decree of divorce by mutual consent.

No order as to costs."
B
The respondent, namely, the husband, after passing of the consent
decree, as indicated above, moved an application dated June 30, 1992 stating
therein that decree by mutual consent was granted to tlie parties on 7th March,
1992 but the order remained silent on other reliefs which were mentioned in
the agreement and in paragraph 8 of the petition relating to transfer of Flat
No.11, Mon-Bijou Co-operative Housing Society, 60-D, Chimbai Road, C
Bombay. According to the agreement dated 26.7.91, the Jlat was to be
transferred in the name of the husband on payment of Rs.1,70,000/-to the
wife. But tl1e said prayer \Vas not made for the reason as indicated below in
paragraph 3 of the petition for modification of decree:-

"I say that though all these ave1ments and facts were put on record,
D
in the petition, both the Petitioners being lay persons, and appearing
in this flun 'ble Court lVithout the assistance of any lalvyer, failed to
ask for relief: as per the said agrcernent in their prayer clauses.
Consequently the Order passed by this Hon'ble Comt remained silent
on those reliefs." E
It has not been said that the court wanted to or intended to pass order
about transfer of i1at but it was not so ordered due to any clerical e1Tor or
accidental slip.

TI1creafter, in the application for modification, averrnents have been F
made to the effect that the respondent, namely, the husband had been ap-
proaching tlie appellant for making the payment of the balance amount of
Rs.1,60,000/-, 10,000/-having been paid earlier, but she had not been accept-
ing the same on one pretext or the other and that she was u-ying to sell away
the Hat to some otlier person. Therefore, it had become necessa1-y to
move the application praying for the following relief in para JO of the G
application :-

"(a) Tilal tliis Hon'blc Court be pleased to modify its order and decree
dt. 7th March, 1992 in M.J. Petition No.AA - 1221/91 by including
and granting the following prayers :- H
214 SUPREME COURT REPORTS [2001} 2 S.C.R.
A (I) That the Opponent (Original Petitioner No.I) be directed by
an order of mandatory illjnnction to transfer Flat No. I J, Mon-
Bijou Co-op.Hsg. Society, Chimbai Road, Bandra, Bombay 400
050, to the name of Petitioner No.2 on payment of Rs. 1,60,000/
-, (Rupee; One Lakh sixty thousand only) as per the Memoran-
dum of Agreement dated 26th July, 199 J.
B
(2) TI1at the Opponent Original Petitioner No. I be directed by an
orderof mandatory injunction to remove herself and her belong-
ings from the said flat No.11, Mon-Bijou Co-op. Hsg. Society,
Chimbai Road, Bandra400 050, forthwith;
c
(3) That it he declared that the cusiody of minor child Neisha
Anne Coelho is granted to the Applicant husband.

(b) Pending the hearing and final disposal of this application the
Opponent Original Petitioner No. I be resu·ained by an order of
D injunction from disturbing the Petitioner No. 2 in peaceful possession
ofl1atNo. ll, Mon-Bijou Co-op. Hsg. Society, Chimbai Road, Bandra,
Bombay 400 050.

(c) That pending the hearing and final disposal of this Application
E opponent the miginal Petitioner No. I be restrained by an order of
injunction from selling, pa11ing with possession of or creating any third
part rights in the said !lat No.11, Mon-Bijou Co-op. Hsg. Society,
Chimbai Road, Bandra, Bombay - 400 050.

(d) Interim and ad interim orders in terms of prayer (b) and (c).
F
(e) For cost of this Application.

(t) Any other orders that this Hon'ble Cour1 deem fit in the nature and
circumstances of the case."

G The application was opposed and an affidavit in reply was filed by the
appellant-wife. According to her, no payment was made by the respondent-
husband as per the terms of the agreement and the allegation that any draft for
payment was prepared and sent to the appellant was false and incorrect. It is
not necessary to mention all other averments made in reply, about ownership
H etc. of the flat. It is also denied that in the absence of lawyers, there was any
JAYALAKSHMI COELHO v. OSWALD JOSEPH COELHO [BRIJESH KUMAR, J.] 215

handicap, as the parties are quite educated. It was, however, also submitted in A
the reply that the payment of Rs.1,60,000/- was to be made by the husband-
respondent to the appellant-wife within 4 months from the date of execution
of the Memorandum of Agreement. 111e agreement was entered into on 26.7.1991
and the decree of divorce was granted on 7.3.1992, after about 7 to 8 months
of the agreement, but no payment was made. Raising several other pleas, she B
prayed for the rejection of the application.

The Family Court, on the aforesaid application, passed an order on .
11.11.1992 amending the decree inserting all the Clauses ( 1) to ( 11) of the
agreement in the amended decree. The order of amendment of the decree first
states about the decree passed on 7.3.J 992 and makes the amendment obscrv- C
ing :-

"It is hereby ordered and decreed tliat the consent terms incoqiorated
in Memorandum of Agreement which is the part and parcel of the
Petition be included in decree from condition No. I to Condition
No.I I." D
It is to be noticed that no such prayer was made in the application for
incorporating the conditions of agreement in the decree. The prayers were for
grant of mandatory injunction.

So far legal position is concerned, there would hardly be any doubt about E
the proposition that in terms of Section 152 C.P.C., any error occurred in the
decree on account of arithmetical or clerical e1Tor or accidental slip may be
rectified by the court. The principle behind the provision is that no party should
suffer due to 1nistake of the court and \\'hatever is intended by the cou11 y, hile
1

passing the order or decree must be properly reflected tl1erein, otherwise it F
would only be destrnctive to the principle of advancing the cause of justice.
A reference to the fo11owing cases on the point may be made:

1be basis of the provision under Section 152 C.P.C. is found on the
maxim "Actus Curiae Neminem Gravabit" i.e. an act of Court shall prejudice
no man (Jenk Cent-118) as observed in a case reported in AIR (1981) Guwahati G
41, 17ze Assam Tea Corporation l1d. v. Narayan Singh and Another. Hence, an
unintentional mistake of the Court which may prejudice cause of any party
must be rectified. In another case reported in AIR (1962) S.C. 633 - l.L
Janai<irama Iyer and others etc. etc. v. P.M. Nilakanta Iyer it was found that
by mistake word "net profit" was written in the decree in place of ''mesne H
216 SUPREME COURT REPORTS [2001] 2 S.C.R.
A profit". 111is mistake was found to be clear by looking to the earlier part of the
judgment. The mistake was held to be inadvertent. In Bhikhi Lal and Others
v. Tribeni and Others, AIR (1965) S.C. 1935 it was held that a decree which
was in conformity with the judgment was not liable to be corrected. In another
case reported in AIR (1966) S.C. 1047 - Master Construction Co. (p) l.Jd. v.
State of Orissa and Another it has been observed that arithmetical mistake is
B
a mistake of calculation, a c!etical mistake is a mistake in writing or typing
whereas an error arising out of ot occurring from accidental slip or omission
is an error due to careless mistake oil the part of the Court liable to be
corr~cted. To illustrate the point, it has been indicated as an example that in
a case where the order may contain something which is not mentioned in the
c decree would be a case of unintentional omission or mistake. Such omissions
are attributable to the Court who may say something or omit to say something
which it did not intend to say or omit. No new arguments or re-arguments on
merits are required for such rectification of mistake. In a case reported in
(1999) 3 S.C.C. 500 Dwarakadas v. State of M.P. and Another this Court has
D held that the correction in the order or decree should be of the mistake or
omission which is accident~! and not intentional without going into the merits
of the case. It is further observed that the provisions cannot be invoked to
modify, alter or add to the tenns of the original decree so as to in effect pass
an effective judicial order after the judgment in the case. The trial court had
E not granted the interest pendente lite though such a prayer was made in the Y·
plaint but on an application moved under Section 152 C.P.C. the interest
pendente lite was awarded by correcting the judgment and the decree on the
ground that non-awarding of the interest pendente lite was an accidental
omission. It was held that the High Court was right in setting aside the order.
Liberal use of the provisions under Section 152 C.P.C. by the Courts beyond
F its scope has been deprecated. While taking the above view this Court had
approved the judgment of the Madras High Court in Thirugnanavalli Ammal
v. P. Venugopala Pillai, AIR (1940) Madras 29 and relied on Maharaj Puttu
Lal v. Sripal Singh reported in AIR (1937) Oudh 191: !LR 12 Lucknow 759.
Similar view is found to have been taken by this Court in a case reported in
G (1996) II S.C.C. 528 State of BiharandAnother v. Nilmani Sahu and Another
where the Court in the guise of arithmetical mistake on re-consideration of the
matter came to a fresh conclusion as to the number of trees and the valuations
thereof in the matter which had already been finally decided. Similarly in the
case.of Bai Shakriben (dead) by Natwar Melsingh and Others v. Special Land
-
Acquisition Officer and Another reported in (1996) 4 S.C.C. 533 this Court
H
JAYALAKSHMI COELHO '· OSWALD JOSEPH COELHO [BRIJESH KUMAR. J.] 217

found omission of award of additional amount under Section 23 (1-A), en- A
hanced interest under Section 28 and solatium etc. could not be treated as
clerical or arithmetical error in the order. The application for amendment of the
decree in awarding of the amount as indicated above was held to be bad in law.

As a matter of fact such inherent powers would generally be available
to all courts and authorities irrespective of the fact whether the provisions
B
contained under Section 152 C.P.C. may or may not strictly apply to any
particular proceeding. In a matter where it is clear that something which the
Court intended to do but the same was accidentally slipped or any mistake
creeps in due to clerical or arithmetical mistake it would only advance the
ends of justice to enable the Court to rectify such mistake. But before exercise C
of such power the Court must be legally satisfied and arrive at a valid finding
that the order or the decree contains or omits some thing which was intended
to be otherwise that is to say while passing the decree the court must have
in its mind that the order or the decree should be passed in a particular manner
but that intention is not translated into the decree or order due to clerical, D
arithmetical error or accidental slip. The facts and circumstances may provide
clue to the fact as to what was intended by the court but unintentionally the
same does not find mention in the order or the judgment or something which
was not intended to be there stands added to it. The power of rectification of
clerical, arithmetical errors or accidental slip does not empower the court to
have a second thought over the matter and to find that a better order or decree E
could or should be passed. There should not be re-consideration of me1its of
the matter to come to a conclusion that it would have been better and in the
fitness of things to have passed an order as sought to be passed on rectifica-
tion. On a second thought court may find that it may have committed a
mistake in passing an order in certain terms but every such mistake docs not F
pcnnit its rectification in exercise of Cou11's inherent powers as contained
under Section 152 C.P.C. It is to be confined to something initially intended
but left out or added against such intention.

So far the legal proposition relied upon by the learned Single Judge and
the Hon'ble Division Bench deciding the matter in its LPA jurisdiction, we
G
are totally in agreement with the same i.e. an nnintentional mistake which
occurred due to accidental slip has to be rectified. The question however
which requires consideration is as to whether on the facts of the present case
and the principles indicated above, it could be said that there was any clerifal.
or arithmetical error or accidental slip on the part of the Court or not. · H
218 SUPREME COURT REPORTS [2001) 2 S.C.R.
A Thus coming to the facts of the case it is to be noticed that in Paragraph
8 of the main petition for dissolution of the marriage it has been averred that
the agreement arrived at between the parties on 26.7.91 may be treated as part
and parcel of the petition while passing !he cn:der in the ca&e acconlingly. Tbe
relief however claimed in paragraph 14 of the petiti.On as quoted earlier
indicates that specifically decree for divorce alone was prayed for. There was
B
no prayer to the effect that the agreement may be made a part of the decree
or the terms and conditions given in the agreement may be incmporated in
the decree. It may be observed that whatever forms part of the petition does
not automatically become a part of the decree unless specifically it is so
provided. It can only be kept in mind while passing the decree. The same
seems to, be the averment in paragraph 8 of the petition.

Next, coming to the prayer made in the application dated J1111e 30, 1992
'.for modification of the decree, it is for grant of orders of nwuiatoty iajullc-
tions of different nature and in different terms as quoted in the earliec part
D of this judgment. Again, there is no prayer for incorpooitiag the tel'lns and
conditions of the agreement dated 26.7.1991 in the decree. So it is not
something which can be said to have been left out accidentally earlier.
Paragraph 3 of the application for modification quoted earlier, indicates a
different reason for not passing decree relating to other matters. It is not
shown to be on the ground of clerical error or accidental slip on the part of
E
the Court.

We have also perused the order dated 11.11.1992 passed by the family
folll( allowing the application for modification. It is a lengthy order running
into 11 pages at places discussing the merits of the matter as well. Paragraph
F 5 of the order reads as follows:

"It was stated by the appellant that though original petition contain the
agreement which was part and parcel of the original petition, in which
'the terms of the modalities were agreed upon by the parties regarding

G
of
the disposal the matrimonial flat. Inadvertently those terms were not
included in decree and therefore the appellant al!o pray• that A decree
be suitably amended."

According to the observations of the Court as quoted above the case
of the respondent-husband was that it was due to inadvertence that the terms
H of the contract were not included in the decree but we find that this was not
JAYALAKSHMI COELHO v. OSWALD JOSEPH COELHO [BRIJESH KUMAR, J.] 219
the case of the respondent- husband in Paragraph 3 of his application for A
modification of the order according to which the parties being Jay persons
without assistance of lawyers had failed to ask for the relief as per the
agreement in their prayer clause. Consequently order was silent on those
reliefs. No averment of inadvertence by reason of which court may not have
included those terms in the decree has been indicated in the application for B
modification of the decree. It is only an effort to improve upon the case as
taken up by the respondent in his application. Again we find that in Para 16
of the order the learned judge of the family court after referring to certain
decisions cited by the parties holding some of them to be applicable and
others not, held as follows:
c
"I have already pointed out in the earlier paragraph of my judgment
that both the parties intended to get divorce and agreement to that effect was
entered into between the parties which form part of the pleading and both
parties initially accepted that it should also fonn part of the decree" (under-
lined by us to emphasize)
D
It is lo be noticed that no such prayer was ever made by the parties
tliat tl1e agreement should form part of the decree. Paragraph 8 of the petition
for dissolution of the marriage only averred that the agreement be treated as,
part and parcel of the petition while passing the order accordingly. We havf
already adverted to this aspect of the matter in the earlier part of this E
judgment. The learned judge therefore arrived at tl1e conclusion that it
appeared that the predecessor in office has inadvertently forgotten to incor-
porate the terms and conditions of the agreement in the decree which was
an accidental omission. It is against the case as taken up by the respondent
in his application vide its Paragraph 3. The unfounded observation of
accidental omission on the part of the Court as made by the Family Court
F
seems to have been taken into account by tl1e learned Single Judge in the
writ petition and the learned Division Bench deciding the matrer in appeal.
There is nothing on the record to indicate that the learned judge of the family
court intended to incorporate the te1rns and conditions of the agreement in
the decree. It would have been a different case if it was shown that the Court G
intended to incorporate those terms but accidentally it slipped or the court
forgot to do so. But there is no material on the basis of which intention of
the family court can be inferred for incorporating. the te1ms and conditions
of the agreement in the decree for divorce on the basis of which it can be
said that whatever was intended by the court could not be reflected in the
H
220 SUPREME COURT REPORTS [2001] 2 S.C.R.
A decree. There is not even a whisper about the Memo of Agreement dated
26.7.91 in the nairntion made in the decree dated 7.3.92. The respondent's
prayer for grant of mandatory injunction, as quoted i,n.the earlier part of this -+'
judgment, by way of modification of the decree dated 7.3.1992, has been
rightly not granted. The application was thus liable to be rejected instead of
B incmporating the tenns aud conditions of tl1e agreement in die decree in
respect of which no prayer was made in L'1e application for modification of
decree.

We may also make a brief mention of one aspect of tl1e matter without
meaning to enter into the merits of that question i.e. in regard to the transfer
C of the flat, which seems to be the bone of contention, on payment of
Rs.1,70,000/- by the husband-respondent to the wife. Much has been said
about it in the application for modification and in reply thereof. The payment
was to be made within four months of entering into the agreement, that is
to say, by 26th November, 1991. On such payment being made the wife was
D to transfer the property in favour of the husband. 1l1e decree has been passed
on 7.3.1992. Undisputedly the amount has not been paid to the wife. 1l1e
payment was ever offered or in time, if at all, is a disputed question between
the parties which need not be gone into in these proceedings. But it may
possibly have some bearing on the question by reason of which the Family
Court did not incotporate the terms of the agreement in the decree or for that
E reason namely payment having not been made the paities may have preferred
to keep silent about it before the Family Court on 7.3.1992 while the Court
\Vas passing the decree. The main part of the agreen1ent related to divorce
by mutual. consent as it had become impossible for the couple to live together.
TI,is fact alone finds mention in the decree passed by the family court dated
F 7.3.1992. All that we mean to indicate is that there may be other possible
reasons for the family court for not incorporating the terms and conditions
of the agreement in the decree, or the reason as indicated by the husband-
respondcnt in Paragraph 3 of his application for modification of the decree
itself.

G In the above background and looking to the prayers made by the
respondent-husband for granting mandatory injunction in our view the appli-
cation for rectification of decree was totally misconceived and was only liable
to be dismissed rather to incmporate tenns and conditions of the agreement
dated 26.7.1991 in respect of which no prayer was made in the application
H for modification nor in the original petition for dissolution of marriage more
JAYALAKSHM! COELHO v. OSWALD JOSEPH COELHO (BRJJESH KUMAR. J.] 221

particularly when no accidental slip on the part of the Court was indicated A
in the application nor the same being substantiated.

In view of the discussion held above we allow this appeal and set aside
the orders passed by the High Court and family court dated l l.11.1992 allow-
ing the application for rectification/modification of the decree dated 7 .3.1992.
B
In the facts and circumstances of the case there would however be no
order as to costs.

A.K.T. Appeal allowed.