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2000 DIGILAW 198 (KER)

Syamala v. Catholic Syrian Bank Ltd. ,

2000-03-28

M.R.HARIHARAN NAIR

body2000
Judgment :- M.R. Hariharan Nair, J. The defendants in O.S. No. 117/98 of the Principal Munsiff s Court, Irinjalakuda are aggrieved by the order passed by the said Court in LA. No. 5453/98 filed under S.152 of the CPC. The plaintiff filed that petition alleging that the judgment and decree contained omissions in so far as the charge over the property in respect of which the title deeds were deposited by the defendants at the time of getting a loan from the respondent herein was omitted therein. Another prayer in the petition was to include the full address of the 1st respondent in the decree. The Court below allowed the petition. 2. Relying upon the decision in Kuruvilla Thomas v. State Bank of Travancore (1988(1) KLT 563) and Varghese v. Indian Bank (1998(2) KLT 601), the learned counsel for the petitioner submitted that by invoking the powers under S.152, only a clerical or arithmetical mistake can be corrected. In this case what has been done by the Court below was to provide an extra relief to the plaintiff which according to the Revision Petitioner, was beyond the purview of S.152 of the CPC. 3. The main question for consideration in the case is whether by providing an additional relief in the judgment and decree and thereby creating charge over the properties of the defendants, the Court below has over stepped its powers under S.152 which reads as follows: "152. Amendment of judgments, decrees or orders.- Clerical or arithmetical mistakes in judgments, decrees or orders 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". 4. In Kuruvilla Thomas v. State Bank of Travancore (1988(1) KLT 563) it was held that a judgment, once signed cannot afterwards be altered or added except as provided under S.152 or on review. A decree has to be drawn up so as to agree with the judgment. So alteration, amendment or addition in the judgment and decree, once signed by judge, is allowed only for correction of clerical or arithmetical mistake or error arising from an accidental slip or omission. A decree has to be drawn up so as to agree with the judgment. So alteration, amendment or addition in the judgment and decree, once signed by judge, is allowed only for correction of clerical or arithmetical mistake or error arising from an accidental slip or omission. The learned judge further added that a convenient and general test that can be applied to determine whether the correction sought for is in the field of slip or omission, accidental or not, is to examine whether the judgment as it stands, represents the intention of the judge at the time he made it and if it does, then a mistake in it cannot be treated as accidental slip or omission. The aforesaid decision was followed by another learned judge of this Court in Varghese v. Indian Bank (1998(2) KLT 601) as well. 5. Dealing with powers under S.152 this Court found in Syndicate Chit Funds Ltd. v. Narayanan Nair (1988(1) KLT 825) that four categories are coming within the scope of S.152. They are: 1. Clerical mistakes; (2) arithmetical mistakes; (3) errors arising from accidental slips; and (4) errors arising from accidental omissions. The object of the Section, it was held, is to preserve substantial justice from being submerged in the bog of technical hurdles. It enables the Court to change or vary its judgment so as to give effect to its meaning and intention. It helps to minimise litigation and avoid multiplicity of proceedings. Such amendments can be allowed in order to give effect to the true meaning and intention of the judgment. The power to amend judgments or decrees is intended for promotion of justice and such power has to be exercised very liberally whenever such amendments become necessary to promote the cause of justice and to save the parties from the ordeal, of a separate litigation for such reliefs. 6. Dwaraka Das v. State of M.R (1999(2) KLT Short Note 27 (Case No. 30)) also deals with the question. The Supreme Court found therein that the omissions sought to be corrected which goes to merits of the case is beyond the scope of S.152 for which the proper remedy for the aggrieved party is to file appeal or review application. On the facts of that case, it was found that omission to grant pendente lite interest was not accidental omission justifying correction under S.152 or 151 of the CPC. On the facts of that case, it was found that omission to grant pendente lite interest was not accidental omission justifying correction under S.152 or 151 of the CPC. 7. Bearing in mind the above legal principles, the propriety of the amendment allowed by the Court below may be examined. The suit was for money due to the bank covered by promissory note. In para 6 of the plaint the plaintiff clearly pleaded that the defendants had created equitable mortgage by deposit of title deeds with regard to the plaint schedule property and this deposit was also covered by memo of deposit dated 18.1.95. It was also pleaded in the said para that by virtue of the deposit the plaintiff has a right to recover the amount enforcing the charge over the schedule properties and that such relief was also prayed for. In the relief portion of the plaint also the plaintiff reiterated the contention that the plaintiff may be given a decree for recovery of the amount due from the defendants and also charged on the schedule properties. 8. In view of the aforesaid pleadings of the plaintiff it was for the defendants to oppose the contention by raising proper pleas if they had a case the plaintiff was not entitled to get a charged decree. A perusal of para 3 of the written statement shows that there was no such plea. What was pleaded in answer to the aforesaid contention of the plaintiff, raised in para 6 of the plaint, was only that the outstanding balance pleaded is not correct and that no demand was made for the amounts. Of course, a general plea that the plaint contention are not correct is there; but that is not sufficient to constitute specific denial of the contention with regard to the creation of equitable mortgage. 9. The judgment of the Court below which was sought to be corrected has to be examined in the light of the aforesaid pleadings of the parties. It is seen that there was no consideration with regard to the validity or otherwise of the equitable mortgage for the obvious reason that there was no clear denial of the alleged charge in the written statement. The only issue raised in the matter was whether the plaintiff was entitled to get a decree was prayed for. It is seen that there was no consideration with regard to the validity or otherwise of the equitable mortgage for the obvious reason that there was no clear denial of the alleged charge in the written statement. The only issue raised in the matter was whether the plaintiff was entitled to get a decree was prayed for. The words as "prayed for" has necessarily to include the prayer for charged decree. In para 7 of the judgment reference was made by the learned Munsiff to the argument advanced by the counsel for the defendants that the deposit of title deed by the defendants had to be duly registered and that in the absence of registration it cannot be accepted in evidence. There is no finding based thereon that the plaintiff was not entitled to get charge on the schedule property through it is mentioned that the memo of deposit was not produced by the Bank. It was also found by the learned Munsiff in the same para that the fact that the defendants deposited title deeds at the time of borrowing the amount from the plaintiff's bank would not be a reason to come to a conclusion that the memo of deposit of title deeds produced along with the suit is to be registered. In view of the aforesaid findings of the Court, it was imperative that a decree charged on the plaint scheduled property should have been allowed. Failure to do so obviously is unintentional and the result of oversight. It can very well be corrected in exercise of the power under S.152 of the CPC. Viewed from this perspective I find no illegality or irregularity in the impugned order. The revision is without merit. Accordingly the same is dismissed.