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1992 DIGILAW 91 (GAU)

Nimodia Plantation and Industries Ltd. v. Assam Co-Operative Apex Bank Ltd.

1992-05-12

M.SHARMA, R.K.MANISANA SINGH

body1992
R.K. Manisana, J. - This revision petition arises from an order of the Assistant District Judge (1) at Guwahati made on 26.9.89 in TS No. 15 of 1985. 2. Facts, - On 2.7.86, the Assistant District Judge passed a judgment against defendants 8 and 9 giving the plaintiff a decree for a sum of Rs. 45 lakhs under Order 12 Rule 6, CPC. The judgment dated 2.7.86 was silent about the interest and costs. But the trial Court made an order on 26.9.86 altering or amending the judgment to the effect that “in the decree passed against the defendants 8 and 9 on admission, the costs and interest at 18% will be included”. After the amendment of the judgment the decree reads: “It is ordered and decreed that the pray of the plaintiff/Bank is allowed and a judgment on admission is passed against defendant Nos. 8 and 9 for a sum of RS. 45 lakes (Rupees forty five laksh) only with costs and interest @ 18% per annum from the date of decree (2.7.86) till realisation”. (emphasis added) 3. Mr. BK Goswami, learned counsel for he petitioners, has challenged the jurisdiction of trial Court to amend or alter the judgment and/or decree. Mr. JN Sarma, learned counsel for the opposite party, has contended that under sections 151 and 152, CPC, the Court has jurisdiction to amend the judgment and that the omission to include interest and costs is clerical mistake arising from accidental slip or omission. 3A. The question which requires for our consideration is whether the trial Court had jurisdiction to amend or alter the judgment so as to include interest and costs which are not in the original judgment. 4. Order 20 Rule 3, CPC reads: “The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be alteres or added to, save as provided by section 152 or on review.” 5. Section 152, CPC provides: “Clerical or arithmetical mistakes in judgment decrees, or order or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.” 6. Section 152, CPC provides: “Clerical or arithmetical mistakes in judgment decrees, or order or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.” 6. In Samarendra Nath vs. Krishan Kumar, AIR 1967 SC 1440 , a three Judge Bench of the Supreme Court has, while dealing with Order 20 Rule 3, CPC held: “Now, 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 very its judgment so as to give effect to its meaning and intention.” (emphasis added) But under Order 20, Rule 3, CPC, a decree can also be altered on review. Therefore, under section 151 and 152, CPC, a decree can be altered or amended only when there is a clerical or arithmetical mistake in the judgment and/or decree arising from any accidental slip or omission, otherwise, the powers under Sections 151 and 152 cannot be exercised as there is alternative remedy for review under Order 20 Rule 3, CPC. The view taken by us finds support from the decision of the Supreme Court reported as Nain Singh vs. Koonwarjee, AIR 1970 SC 997 . 7. The next question which, therefore, arises for consideration is whether the omission in the judgment t to award interest and costs is clerical or arithmetical mistake arising from any accidental slip or omission. In Jaya Krishna vs. State of Orissa, AIR 1976 Orissa 203 (DB), the Orissa High Court held that the omission to award statutory interest under section 28 of the Land Acquisition Act is an accidental slip or omission. Relying on the decision of the Orissa High Court in Nand Ram vs. State of Punjab, AIR 1982 P&H 184 , it has been held that interest under Section 28 of the Land Acquisition Act is an integral part of the compensation which is to be awarded by the Court. Omission in the judgment to award interest on compensation constitutes an accidental slip within the meaning of section 152 and can be rectified at any time. 8. Omission in the judgment to award interest on compensation constitutes an accidental slip within the meaning of section 152 and can be rectified at any time. 8. We are of the view that the above principles are not applicable to the present case for the reasons that interest under the Land Acquisition Act is one thing and that under Section 34 is another. The present is a case of awarding interest under Section 34, CPC. Therefore, those cases are distinguishable from the present case. That apart, as already stated, under section 151 and 152, CPC Court can exercise its jurisdiction to amend or alter a judgment after signing the same only on the ground of any clerical or arithmetical mistake. The question then is, - What is the meaning of clerical or arithmetical formulated in Master Construction vs. State of Orissa, AIR 1996 SC 1047 , has been summarised by the Supreme Court in the following words.- “A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. It is error apparent on the face of the record and does not depend upon its discovery on argument or disputation. An arithmetical error is a mistake in calculation and a clerical error is a mistake in writing or typing.” 9. In West Bengal Financial Corporation vs. Petram, AIR 1983 Calcutta 381, a Division Bench of the Calcutta High Court has held that the Court has no discretion as to whether pendence lite interest should be granted or not. The Court is bond to grant such interest, the Court has discretion only the rate of interest. In Mahabir Prasad vs. Durga Dutta, AIR 1961 SC 990 , the Supreme Court has held that "as regards the interest pendente lite until the date of realisation, such interest was within the discretion of the Court." In State of MP vs. M/s Nathabhai, AIR 1972 SC 1545 , the Supreme Court has held that "the question, whether interest should be awarded on the principal amount claimed from the date of suit, was within the discretion of the Court. 10. 10. On a reading of section 34, it appears to us that section 34 does not deal with interest before institution of the suit, but it deals with - (1) interest from the date of suit to the date of decree (which we refer to as `interest pendente lite'), and (2) further interest from the date of decree to the date of payment (which we call it as 'future interest'). Sub-section (2) of section 34 makes it clear that future interest is discretionary. The present case is one for future interest. The costs under section 35 is also discretipnary. In this factual position, it cannot be said that there was error apparent on the face of record as the question, whether interest and costs should be awarded, would depend upon the discretion of the Court to be decided after hearing of the arguments of the parties as has been argued before us. Therefore, it does not come within the meaning of clerical error, that is, mistake in writing or typing. For these reason, it is concluded that the trial Court had no jurisdiction to exercise its discretion under section 151 or 152, CPC to amend or alter the judgment. 11. In the result, the revision is allowed, and the impugned order dated 26.9.86 is set aside. No costs.