Central Bank Of India v. Ashoke Kumar Bose — 1983 DIGILAW 98 (CAL)

JUDGMENT 1. THIS is a revisional application at the instance of the plaintiff, central Bank of India and is directed against an order dated March 16, 1979, passed by the learned Subordinate judge, 4th Court alipore, dismissing the plaintiff's application under section 151 and 152 of the Code of civil Procedure filed in Title Suit No. 41 of 1968. 2. THE plaintiff instituted the aforesaid suit against the predecessor-in-interest of the present opposite parties for realisation of a sum of Rs. 1,80,399. 84 due towards principal and interest calculated upto May 28 1968, on enforcement of a mortgage. In this suit the plaintiff further claimed interest at the contractual rate from May 29, 1968, until realisation. The suit was ultimately decreed exparte on April 17, 1973, on the following terms "that the suit be decreed exparte in a preliminary form with costs. The plaintiff do get a decree for Rs. 1,80,399. 84 plus costs as ordered above. The decretal dues to carry interest till the date of realisation. The defendant to pay up the decretal dues within 6 months from date. In default the plaintiff would be entitled to apply for a final decree with a prayer for sale of the mortgaged property or any portion thereof for satisfaction of the plaintiff's dues. " 3. THE formal decree was drawn up accordingly. On August 9, 1973, the plaintiff filed an application under section 151 and section 152 of the Code praying for modification of the decree. In this application the plaintiff claimed that in decreeing the suit there had been an omission in not decreeing the claim for interest pendente lite amounting to Rs. 66,109. 09. This application was contested by the opposite parties and the learned Subordinate Judge ultimately dismissed the application on the ground that the error complained of not being accidental and the claim of interest pendente lite not having been allowed by the judgment itself the decree cannot be amended on an application under section 151 or section 152 of the Code of Civil procedure. This is the order now under challenge before us in this Rule obtained on the aforesaid revisional application. 4. This is the order now under challenge before us in this Rule obtained on the aforesaid revisional application. 4. THE short point that arises for our consideration is as to whether failure on the part of the court to grant interest pendente lite while decreeing the suit is such an error as can be rectified on an application under section 151 and section 152 of the Code of Civil Procedure. Mr. Banerji appearing in support of this revisional application has strongly contended that under the provision of Order 34 rule 11 of the Code it was incumbent on the court to decree the claim of interest on the terms thereof while decreeing the suit according to Mr. Banerji the suit was being decreed exparte and, therefore, the court was passing an exparte mortgage decree, omission on the part of the court to direct payment of interest pendente lite as enjoined by Rule 11 of Order 34 was purely an accidental one which the court had every jurisdictions to correct on an application under section 151 and 152 of the Code. 5. THE point thus raised by Mr. Banerji has strongly been contested by Mr. Roychowdhury appearing on behalf of the opposite parties. According to Mr. Roychowdhury the court undoubtedly had a discretion to decree the claim of interest pendente lite and such a discretion has not been exercised in favour of the plaintiff but that does not constitute an accidental error or omission which can be rectified on an application under sections 151 and 152 of the Code. According to Mr. Roychowdhury even assuming that it was incumbent for the court to decree such a claim, failure on its part to do so may be an error which can be rectified either on an appeal or on review but not on an application under sections 151 or 152 of the Code. 6. ON a careful consideration of the rival contentions we are of the view that there is ample substance in the contention of Mr. Roychowdhury. In the present case, the suit was decreed exparte. In the judgment there has been a clear omission on the part of the court to decree the claim of interest pendente lite though such interest was claimed in the suit. It must, therefore, be assumed that the court had refused to grant that prayer of the plaintiff. Roychowdhury. In the present case, the suit was decreed exparte. In the judgment there has been a clear omission on the part of the court to decree the claim of interest pendente lite though such interest was claimed in the suit. It must, therefore, be assumed that the court had refused to grant that prayer of the plaintiff. The decree that has been drawn up necessarily does not incorporate any direction for payment of interest pendente lite. The question for our consideration is whether section 151 or 152 of the Code furnishes any remedy to the plaintiff for correction of such an error. Section 151 of the Code in our view is clearly ruled out because of two reasons; firstly when the code itself provides for other remedies by way of appeal or review or by invoking the court's powers tinder section 152 of the code as the case may be, such alternative remedies bar application under section 151 of the Code secondly the error complained of is not that the decree that had been drawn up had not been so drawn up in consonance with the judgment and the error complained of is in the judgment itself. Hence, we are left now to consider whether such an error could be corrected by invoking the court's powers under section 152 of the Code. Section 152 of the code empowers the court to correct clerical and arithmetical mistakes or errors arising from any accidental slip or omission. In the present case the error referred to is not a case of any clerical or arithmetical mistake. So the point is whether it could be said to be an error arising out of an accidental omission on the terms of the judgment when the court had not assigned any reason it is difficult to conclude whether the court consciously overruled the said claim or it was the result of an erroneous omission on the part of the court to advert to that part of plaintiff's claim. In either case however the matter does not come within the limited purview of section 152 of the Code it was pointed out by the privy Council in the case of Piyaratana v. wahareke 54 C. W N. 568 that such a provision is an exception to the general rule that once an order is passed and otherwise perfected in accordance with the practice of the court the court which passed the order is functus officio and cannot set aside or alter the order, however, wrong it may appear to be and that exception again lies within a narrow compass. It is not a substitute for remedies like appeal or review. Even if the court had erroneously omitted to consider the claim of the plaintiff with regard of interest pendente lite and even if such an omission is apparent on the face of the records, that error in our view is to be corrected either by preferring an appeal or an application for review. Such en omission cannot be said to be accidental in order to be accidental it must otherwise be established that the court really intended to give or allow that which was omitted contrary to such an intention and the omission was merely on the record and not in the intention of the court. Federal Court emphasised this distinction in the case of Sachindra Kplay v. Pankajini Dasi 5 DLR 68, when it was observed that this section "cannot be used to correct omissions, however erroneous, which were intentional not in the sense of conscious choice, for, no court is supposed to commit an error knowing it to be such, but in the sense that the court meant to omit what was omitted. " Tested in this light we cannot but accept the contention of Mr. Roychowdhury that the omission complained of cannot come within the purview of section 152 of the code. 7. MR. Banerji has relied upon certain decisions. Some of these decisions including the decision in the case of Nilmoni sardar and Ors. v. Baidyanath Das Manna and anr AIR 1957 Calcutta 140 are authorities for the proposition that it is obligatory on the part of the court decreeing a mortgage suit to incorporate a direction for payment of interest including interest pendente lite. That follows from the provision of order 34 Rule 11 of the Code. v. Baidyanath Das Manna and anr AIR 1957 Calcutta 140 are authorities for the proposition that it is obligatory on the part of the court decreeing a mortgage suit to incorporate a direction for payment of interest including interest pendente lite. That follows from the provision of order 34 Rule 11 of the Code. But these decisions in our view cannot help Mr. Banerji in the present case because the decree under consideration may very well be erroneous not being in consonance with the said provision. We are, however, called upon to consider what would be the remedy for the plaintiff for correction of such an error Merely because the court had failed to discharge its obligation enjoined by Order 34 Rule 11 of the Code that alone would not bring the case within the purview of section 152 of the Code. Mr. Banerji has next relied upon the decision of the privy Council in the case of Raja Debi Bux Singh -v- Habid shah 40 Indian Appeals 151 (at page 155). The case under consideration by the privy council was a case of procedural error where the court had dismissed the plaintiff's suit for default when the plaintiff had died and time for substituting the heirs had not elapsed. The question raised was whether such a dismissal could be recalled by the court in exercise of its inherent powers and the Privy Council observed that section 151 could never be invoked in a case clearer than the one thereunder consideration. It was, however, a case where the court itself made a mistake in dismissing a suit of the plaintiff who had already died. Court's inherent jurisdiction to correct its own mistake in such cases is well settled but such a case is no way comparable to the one now under consideration. Mr. Banerji also relied on an earlier Bench decision of this court in the case of Hemanta Kumar v. Rajendra mondal AIR 1935 Calcutta 619. This decision does not lay down anything which may be considered to be contrary to the view expressed by us. In this case the decree that was drawn up was not in consonance with the judgment and the amendment effected also was not in accordance with law. This decision does not lay down anything which may be considered to be contrary to the view expressed by us. In this case the decree that was drawn up was not in consonance with the judgment and the amendment effected also was not in accordance with law. The court conceding the position that such defect in the decree could be corrected by the court passing the decree set aside the amendment only because the amendment was not effected in accordance with law. On the other hand, the decision of the Madras High Court in the case of thirugnanavalli Ammal v. Venugopala filial AIR 1940 Madras 29 relied on by Mr. Roychowdhury is a case of similar nature to the one now under consideration. In that case the mortage decree was silent with respect to the payment of future interest but there was no inconsistency between the judgment and the decree and the court held that such omission cannot be considered to be accidental within the meaning of section 152 of the Code several other authorities were cited by Mr. Roychowdhury in support of the same view but we do not think it necessary to refer to and consider these decisions as in our view the position in law, as indicated hereinbefore appears to be well settled. 8. IN the result, the only contention raised by Mr. Banerji in support of this revisional application fails and is overruled. The Rule is, therefore, discharged. There would, however, be no order for costs. Rule discharged.