JUDGMENT : S. K. Jha, J.-The defendants of title suit no. 355/74 of 1956/67 are petitioners here. They have come up in revision against the ORDER :dated 23.8.82, by which the learned Munsif, Sikarahna, Motihari, has amended a portion of the decree at the instance of the plaintiffs opposite parties. 2. The only relevant facts are these. The suit having been filed by the plaintiffs opposite party, it was decreed by the trial court. The defendants petitioners went up in appeal before the learned District Judge. The appeal was dismissed, on merits. Thereafter the petitioners came up to this court in a second appeal being second appeal 522 of 1977. That second appeal was dismissed under ORDER :41 Rule 11 of the Code of Civil Procedure (hereinafter to be referred to as the Code). 3. When this chapter ended, the plaintiffs levied execution of the decree. On such an application being filed, the petitioners filed an application stating therein that the decree was in executable on account of vagueness. It then' transpired that the relief claimed in the plaint was with regard to plot 1512 (part) by mentioning the boundaries thereof in the schedule to the plaint. The eastern boundary was given as : which means the remaining portion of plot 1511 which already, admittedly, belonged to them (plaintiffs). 4. The suit was decreed as earlier stated. In the decree, however, through inadvertence, by an accidental slip, the portion of the eastern boundary which was mentioned as plot 1511 in the plaint was written as 1522' in the decree. This was all the mistake committed in the preperation of the decree. It is obvious that the description of the eastern boundary of the disputed plot was wrongly mentioned merely through an accidental slip, and had got no bearing on the merits of the case either way. But that is not the end of the matter. 5. The question then arises as to whether it is case falling within the purview of section 152 or 153 of the Code. While dealing with the matter as to whether such a mistake can be said to be an accidental slip, a question to that effect was posed in the case of Tarsem v. Sm. Jagadindra (AIR 1958 Punjab 1173). In that case it was observed that the test is "Does the decree as drafted represent the intentions of the Judge?".
While dealing with the matter as to whether such a mistake can be said to be an accidental slip, a question to that effect was posed in the case of Tarsem v. Sm. Jagadindra (AIR 1958 Punjab 1173). In that case it was observed that the test is "Does the decree as drafted represent the intentions of the Judge?". The word 'accidental' qualifies omission also so that the section can only be resorted to rectify omissions which are accidental. This section cannot be used to correct an omission which is intentional however erroneous. 6. Therefore, in so far as the controversy between the parties' as to whether the accidental slip of the type in question in the instant case can be corrected by the court of first instance, namely, the trial court or the appellate court is concerned, that is not germane to the question in issue, but section 153 of the Code is not applicable to the facts of the present case. 7. Learned counsel for the plaintiffs opposite party contended that "Court may............amend any defect or error in any proceeding or a suit: and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding". In the present case nothing remains left for the purpose of determination of the real question raised, or depending on such proceeding. The provisions of section 153 are, therefore, not attracted to the facts of this case. Learned counsel for the plaintiffs submitted that section 153 A has been inserted by the 1976 amendment which makes it clear that it can be done by the court of the first instance only. I think the argument is wholly fallacious. Section 153 A merely clarifies and explains the forum where matters covered by section 153 of the Code in controversy are to be dealt with. Previous to the 1976 amendment there was no term "by the court of the first instance" appearing in the last part of the section. This new section, to bear repetition, is merely in the nature of an explanation to section 153. This was necessitated on account of difference of opinion between different High Courts with regard to the court which can make the amendments contemplated by section 153.
This new section, to bear repetition, is merely in the nature of an explanation to section 153. This was necessitated on account of difference of opinion between different High Courts with regard to the court which can make the amendments contemplated by section 153. Whereas Calcutta, Madras, Allahabad and Rangoon High Courts had held that the appellate court alone could amend the decree and the amendment by the trial Court was not permissible in law, the Bombay and Patna High Courts had taken the view that it is the court of the first instance and not the appellate court that can amend the decree. Even the summary dismissal or the appeal under ORDER :41 Rule 11 of the Code has the same effect as a disposal of the' appeal on merits. It was this controversy which led to the amendment. But we should remember the fact that the amendment was to section 153 of the Code only and not be section 152. The present case being covered by section 152 of the Code, Section 153 A is of no avail to the plaintiffs opposite party. 8. In the result, this application is dismissed as the impugned ORDER :suffers from no jurisdictional error. There shall be no ORDER :as to costs.