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1996 DIGILAW 617 (ALL)

MOHAMMAD v. DISTRICT JUDGE MIRZAPUR

1996-05-16

D.K.SETH

body1996
D. K. Seth, J. On 8th May, 1978 the suit filed by the Aziz Ahmad, predecessor-in-interest of respondents 3 to 10 was decreed. The said decree was affirmed in Civil Appeal No. Ill of 1978 by a decree dated 25th July, 1981. Second Appeal No. 1328 of 1981 arising thereout stood dismissed on 9th January, 1984. The petitioner applied for preparation of final decree on 20th July, 1985 when it was found that though the suit was a suit for redemption and the decree was to be drawn in terms of Order XXXIV, Rule 7, C. P. C. but such statement was omitted to be mentioned through accidental slip in the decree dated 8th May, 1978 though in the decree it was recorded that the suit for redemption was being decreed. The portion which was omitted to be incorporated through accidental slip is purely a formal and technical one. A preliminary decree is to be drawn up in a suit for redemption in the form given in Forms No. 7 or 7-A, 7- B, 7-C of Appendix D while final decree is drawn up according to Forms 7-D and 7-E of Appendix D. The said decree is drawn up on the basis of the decree passed. Such decrees are passed according to Order XXXIV, Rule 7, which is normally mentioned in the order itself. As soon the same is mentioned, the decree is drawn up according to the Forms applicable. When the suit has been decreed for redemption, the same is a preliminary decree until the final decree is drawn up. Omission to mention that the same is a preliminary decree passed in terms of Order XXXIV, Rule 7 does not alter the decree or amend the same. Neither the same adds anything to it. The decree is not varied by reason of insertion of such inscription. Section 152 of the Code of Civil Procedure empowers the Court to correct clerical or arithmetical mistake in Judgments, decrees or error arising therein from any accidental slip or omission at any time either on its own motion or on the application of the parties. In the present case, admittedly the omission is not clerical or arithmetical mistake but is an error arising out of accidental slip or omission. The Court is empowered to correct such errors at any time. In the present case, admittedly the omission is not clerical or arithmetical mistake but is an error arising out of accidental slip or omission. The Court is empowered to correct such errors at any time. The Court can correct it either on the basis of an application or on its own motion. While passing a decree for redemption, the court has omitted accidentally through an accidental slip to mention the said inscription. It is an established principle of law that party should not be compelled to suffer for any mistake on the part of the Court even without an ap plication, the said mistake could have been corrected by the Court on its own mo tion. Therefore, it cannot be said that the Court had no jurisdiction to correct the same on the basis of the application as has been made in the present case. The omission is an error arising out of accidental slip or omission that has been observed earlier by me. 2. Therefore, the contention on behalf of the petitioner that the same is not an accidental slip and that the Court has no jurisdiction to correct the same has no substance. 3. The other question raised by the learned counsel for the petitioner is that the decree having been affirmed by the High Court by reason of the dismissal of the Second Appeal, it is the decree of the High Court which is executable by reason of the doctrine of merger. Inasmuch as the Trial Courts order has merged in that of the High Court. Accordingly such decree can only be corrected by the High Court. The Trial Court does not have any jurisdiction to correct the same. According to him, therefore, the order impugned is wholly without jurisdiction and, as such, cannot be sustained. 4. Mr. S. N. Singh, learned counsel for the respondent, on the other hand, con tends that the decree is being executed by the trial court and the application has been made in the course of execution proceedings. Therefore, it is the trial court who is executing the decree is competent to correct. He contends further that it is the trial court who has to draw up the decree and while drawing up the decree the trial court found error which is an accidental slip or omission, therefore, the trail court can very well correct the same. 5. Therefore, it is the trial court who is executing the decree is competent to correct. He contends further that it is the trial court who has to draw up the decree and while drawing up the decree the trial court found error which is an accidental slip or omission, therefore, the trail court can very well correct the same. 5. Admittedly the decree is a decree for redemption in which preliminary decree in terms of Order XXXIV Rule 7 is passed and the decree is to be drawn according to Form No. 7 of Appendix-D by the Trial Court for the purpose of execution. Therefore, while the trial court is entitled to draw the decree which is in seisin of the matter. Over and above in terms of Order XXXIV, Rules 7 and 8, a final decree is to be drawn. After the High Court has affirmed the decree the suit is before the trial court which has not become functus officio after the decree was passed by reason of having the seal of the High Court. Inasmuch as it is the trial court where the suit is returned for proceeding in accordance with the terms of the preliminary decree to the drawn up and only when the consequences of the terms contained in Order XXXIV Rule 7 ensue, then the final decree is to be drawn in terms of Rule 8 according to the situation available. Therefore, the trial court has jurisdiction to proceed with the suit after the decree is affirmed by the High Court and the suit has not come to an end. It is only the preliminary decree that has been affirmed and with which the trial court is to proceed on the basis of such decree. Therefore, the trial court is in seisin of the entire matter before it. While proceeding with the suit, it has to carry on the procedure in terms of Order XXXIV, Rule 7, namely, to take into account as to what was due to the defendant on the date of such decree for the principal and interest, cost of the suit and expenses incurred by the defendant upto date in respect of security together with interest thereon and declaring the amount due on that date. The operation of the decree remained stayed during the pendency of the appeal and the operation was only revived only when the proceeding pending before the High Court is terminated. Before the final decree is passed, the procedure laid down in Rule 8 ought to be followed and only thereafter the final decree is to be passed. Therefore, it cannot be said that the trial court had lost its jurisdiction over the suit. The preliminary decree is subject to the final decree according to the situa tion contemplated in Order XXXIV, Rules 7 and 8. Therefore, in such cases, it is the trial court who retains the jurisdiction to proceed with the suit and has jurisdiction to correct the decree under Section 152 of the Code. In Murari Lal v. Dev Karan AIR 1965 SC 225 , it has been held that the High Courts in India conformed to the view that whether or not there is a statutory provision directing the Judges to give effect to the principles of justice, equity and good conscience, it is their duty to enforce that principle where they are dealing with stipulations introduced in mortgage transac tions which appear to them to be unreasonable, oppressive or unjust. The equitable principle of justice, equity and good conscience has been consistently applied by Courts in dealing with mortgages and lends support to the contention that if a mortgage deed contains a stipulation which unreasonably restrains or restricts the mortgagors equity of redemption courts were empowered to ignore that stipulation and enforce the mortgagors right to redeem. The above principle would be advanced if the correction is allowed and if not the said principle would be defeated even then it was a decree for redemption. Therefore, it is to be drawn according to Order XXXIV, Rule 7. The Court in not supposed to pass an infructuous decree and be an idle on looker in the difficulty created. It is the Court who has to remove such difficulties when circumstances so demand. 6. The decision in the case of Master Construction Company P\t. Ltd. v. State of U. P. and others, AIR 1966 SC 1047 , cited by Mr. It is the Court who has to remove such difficulties when circumstances so demand. 6. The decision in the case of Master Construction Company P\t. Ltd. v. State of U. P. and others, AIR 1966 SC 1047 , cited by Mr. H. M. Srivastava, learned counsel for the petitioner, does not help him inasmuch as in the said case it was found that the correction did not came within the purview of Section 152 since the error was not apparent on the face of the record the decision whereof depended upon the con sideration of arguable questions of limitation and construction of documents, a situation which is not available in the present case where admittedly the omission was an accidental slip. 7. The decision in the case of Bhikhi Lal v. Tribeni and others, AIR 1965 SC 1935 cited by Mr. Srivastava also does not help him in the facts and circumstances of the case. Inasmuch as in the said case a fresh preliminary decree was passed after the original preliminary decree was passed in the mortgaged suit and in the fresh decree, amount of interest due prior to the date of the suit was added after hearing fresh argument and passing considered judgment on the basis of an application for amend ment which was held to be not maintainable. In the present case, it is not a fresh decree nor any amount is added neither any judgment is required to be delivered nor any argument is necessary. If the decree has not been changed or substituted it is the same decree for redemption which was inscribed only by formal expression through the inscription of Order XXXIV, Rule 7 which is simply of a formal nature without effecting or amending or altering anything to the decree. Therefore, the ratio decidendi in the said case is not attracted in the facts and circumstances of the present case. 8. Similarly the decision in the case of Smt. Gulab Bai v. Ram Pratap, AIR 1973 Rajasthan 307 also does not help Mr. Srivastava in the facts and circumstances of the present case. Inasmuch as in the said case the decree was silent of future interest. The correction to include future interest was held not to be accidental error or omission. Here as I have already said, the facts are altogether different. Here nothing is being added. Srivastava in the facts and circumstances of the present case. Inasmuch as in the said case the decree was silent of future interest. The correction to include future interest was held not to be accidental error or omission. Here as I have already said, the facts are altogether different. Here nothing is being added. The reason need not be repealed to hold that the present case is wholly distinguishable from the case of Rajasthan High Court cited by Mr. Srivastava. 9. In the decision in the case of Namdeo Amrut Gohane v. Narayan Shamrao Deshmukh and another, AIR 1971 Bombay 121, it has been held that under Section 151, the Court in the interest of justice, can pass an order even correcting the decree, unless it is prohibited by Code other Statutes. Where there has been a clerical or arithmetical mistake or an error arising from accidental slip or omission Court can amend or vary a decree under Section 152. A decree though formal, must reflect all the adjudication by Court. It should be drawn up in such a way as to make it self-con tained and a reflection of all important reliefs given by judgment. Where the decree did not conform to judgment intended to be enforced by it, decree could certainly be amended under Section 152 to bring it in conformity with intention that was ex pressed in the judgment. The amendment, of course, will not be allowed if it is not in furtherance of judgment. As the object of amendment is to harmonise decree with judgment sought to be enforced by it, test for deciding whether an amendment should be allowed or not is whether the decree represents the intention of the judge who made it. Even otherwise judge could allow amendment under Section 151 if in the interests of justice he had to make the decree in conformity with the judgment. 10. Thus we see that decree has to conform to the judgment. Here the decree was a decree for redemption which was passed pursuant to the judgment. In order to conform the decree with the judgment, admittedly the correction made was a neces sity. It would further the ends of justice. 11. The decision in the case of Ram Sunder Singh v. Mst. Pana Kuer & others, AIR 1979 Patna 5, relied on by Mr. In order to conform the decree with the judgment, admittedly the correction made was a neces sity. It would further the ends of justice. 11. The decision in the case of Ram Sunder Singh v. Mst. Pana Kuer & others, AIR 1979 Patna 5, relied on by Mr. Srivastava does not help us much inasmuch as in the said case the decree was passed in a suit for specific performance of a contract of sale and it was decreed finally and was affirmed by the appellate court. Therefore, it was the appellate court decree which is to be executed. Therefore, the appellate court is the only forum where such application for correction could be made. But in the present case, the situation is altogether different. Here it is a preliminary decree which is before the court below where the preliminary decree is to be proceeded with and the Court had retained the seisin of the matter and is called upon to pass order in furtherance thereof for the purpose of drawing up the preliminary decree and admittedly on the compliance thereof in deciding the question of passing of a final decree Therefore, it is not dealing with any such case. Here the Court has jurisdic tion to pass order in the suit itself, therefore, it could not refuse to entertain the application since the decree had the seal of the High Court. In the said Patna case, the decree was sought to be amended. Here in effect is not amendment m that sense. On the other and it is being sought to be drawn up in terms of the decree itself and the omission of accidental slip is so apparent and so innocuous that it does not attract the principle enunciated in the said case. Inasmuch as by reason of the said correction, no change is effected in the decree neither there is any addition, altera tion or amendment in the decree. The decree is only brought to its form which is absolutely of a formal nature without deciding any title or effecting any right of any of the parties. 12. The decision in the case of Cyan Devi v. State of Rajasthan, AIR 1979 Raj 5 cited by Mr. The decree is only brought to its form which is absolutely of a formal nature without deciding any title or effecting any right of any of the parties. 12. The decision in the case of Cyan Devi v. State of Rajasthan, AIR 1979 Raj 5 cited by Mr. Srivastava has no manner of application in the present case inasmuch as the said case deals with completely some other proposition with which we are not concerned in the present case. 13. Therefore, in my view, the trial court has jurisdiction to effect the correction depending on the nature of such correction and dependent on the peculiar facts and circumstances of the present case. In that view of the matter, I do not find any reason to interfere with the order impugned in the present writ petition. 14. Mr. Srivastava has not been able to point out any infraction of fundamental principles of law so as to bring the present case within the ambit and scope of the ratio decidendi in the case of Ganga Saran v. District Judge, Hapur AIR 1991 Allahabad 114. 15. In the result, the writ petition fails and, as such,, is dismissed. There will, however, be no order at to costs. Petition dismissed. .