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1969 DIGILAW 117 (KER)

Malayalam Plantations Ltd. v. Varkey Chacko

1969-06-26

E.K.MOIDU, T.C.RAGHAVAN

body1969
Judgment :- 1. The revision petition has been referred to a Division Bench by Krishna Iyer J„ as our learned brother felt that the decision of the Supreme Court in Samarendra Nath Sinha v. Krishna Kumar Nag (AIR. 1967 SC. 1440) struck a different note from the decision of Vaidialingam J. of this Court in P.Kesavan v. Vazhoor Gopalan (19641 KLR. 155). Krishna Iyer J. wrote a judgment following the ruling of Vaidialingam J. when the counsel of the respondent was absent; and then our learned brother heard the counsel of the respondent who cited the ruling of the Supreme Court. It was thereafter that the reference to a Division Bench was made. 2. To us it appears that the question is fairly simple; and what is required is only a little clarification. 3. The respondent filed a suit with two prayers: one, a prayer for injunction restraining the defendants (the petitioner being the second defendant) from preventing the flow of a canal or altering its nature; and two, a prayer for restoring the status quo ante of the canal if the defendants had already closed it or changed its course The suit was decreed as prayed for. But, in the decree drafted by the ministerial staff of the court only the first relief was included. At the execution stage the respondent prayed for an amendment of the decree by including the second relief as well The Munsiff allowed the prayer; and the revision petition is against that order. 4. The decision of this Court by Vaidialingam J. has held that when an order is confirmed, modified or reversed by an appellate or revisional authority, the operative order is the appellate or revisional order and not the original order; and that in such a case the proper forum for seeking an amendment of the decree is not the original court but the appellate court. This proposition is based on the decision of the Supreme Court in Commissioner of Income-tax, Bombay v. M/s Amritlal Bhogilal & Co.(AIR.1958 SC. This proposition is based on the decision of the Supreme Court in Commissioner of Income-tax, Bombay v. M/s Amritlal Bhogilal & Co.(AIR.1958 SC. 868), where Gajendragadkar J., speaking for the Court, has said in Para.10 of the judgment that there can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law; that if the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced; that in law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal; that, as a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority,the original decision merges in the appellate decision; and that it is the appellate decision alone which subsists and is operative and capable of enforcement. From this Vaidialingam J. has taken one more step and has held: that in such a case the proper forum for amending the decree is the appellate court. 5. The decision of the Supreme Court which impelled Krishna Iyer J. to make the reference is Samarendra Nath Sinha's case already mentioned. In Para.11 of this ruling Shelat J., speaking for the Court, has observed that it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. In this paragraph the learned judge has considered this question further and has followed the English decision in In re Swire: Mellor v. Swire (1885) 30 Ch D. 239). Bowen L. J. has said in that decision: "Every Court has inherent power over its own records so long as those records are within its power and it can set right any mistake in them. It seems to me that it would be perfectly shocking if the court could not rectify an error which is really the error of its own minister. It seems to me that it would be perfectly shocking if the court could not rectify an error which is really the error of its own minister. An order, as it seems to me, even when passed and entered) may be amended by the court so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice." Shelat J. has also referred to the earlier decision of the Supreme Court in Janakirama Iyer v. Nilakanta Iyer (AIR. 1962 SC. 633). In that case the decree drawn up by the High Court used the expression 'mesne profits" instead of "net profits"; and what should rightly have been there was the expression "net profits". An appeal was filed before the Supreme Court: nevertheless, the Supreme Court said that the High Court had power to correct "mesne profits" into "net profits", because the use of the expression "mesne profits" was the result of inadvertence and such inadvertence could be corrected by the court which passed the decree under S.151 and 152 of the Code of Civil Procedure. This reasoning of the Supreme Court appearing in the two decisions mentioned above makes the position clear; and the legal position is this. 6. After the appellate court confirms, reverses or varies a decision of the original court, the decree in force is the appellate decree since the original decree has merged in the appellate decree. Therefore the appellate court may amend such a decree. But, under S.151 and 152 of the Code of Civil Procedure inherent jurisdiction is vested in the original court to correct clerical or arithmetical mistakes in its judgments, decrees or orders or errors arising therein from accidental slips or omissions. This inherent power the original court may exercise at any time either, on its own motion or on the application of any of the parties; and this power it does not lose by the mere fact that an appeal has been filed or the decree or judgment has been confirmed, varied or reversed by the appellate court. However, we would add, following the observation of Bowen Li. already extracted, that the inherent power is available only so long as the records of the case are within the power of the original court. However, we would add, following the observation of Bowen Li. already extracted, that the inherent power is available only so long as the records of the case are within the power of the original court. In the other cases, the proper forum for seeking such an amendment is also the appellate court. And we reiterate that the appellate court has jurisdiction to make the amendment in all cases generally where it has confirmed, varied or reversed a decision of the original court. In other words, the inherent jurisdiction of the original court is confined to cases mentioned in S.152 of the Code so long as the records of the case are within its power. 7. Now we come to the case before us. In this case the plaint contained two prayers: and the suit was decreed in terms of the plaint by the judgment pronounced by the original court. By inadvertence the ministerial staff of the original court failed to include the second relief as well in the decree drafted by them: and it was that error that was sought to be rectified by amendment. Such an error is undoubtedly an error arising from an accidental slip or omission or inadvertence; and this is an error which (he original court can correct in exercise of its inherent power notwithstanding the fact that the decree and judgment had been confirmed, varied or reversed by an appellate court. It is thus clear that the order of the lower court is quite within its competence; and that the revision petition has no substance. The revision petition is consequently dismissed with costs. Dismissed.