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2000 DIGILAW 285 (HP)

SURJEET MALHAN v. JOHAN TINSON & CO.

2000-11-03

LOKESHWAR SINGH PANTA

body2000
JUDGMENT Lokeshwar Singh Panta, J: - In CMP Nos. 72 and 73 of 1998, the applicants are the respondents-defendants 1 to 3 whereas non- applicants are the plaintiff and Performa respondent-defendant. Hereinafter the parties are referred to as defendants, plaintiff and Performa-defendant in this judgment. In Civil Miscellaneous Petition No. 72 of 1998 under Section 152 read with Section 151 of the Code of civil Procedure, the defendants have prayed for rectifying the judgment dated 14.11.1996 passed in RFA No. 230 of 1985 by Division Bench of this Court to the effect that instead of 1500 shares it should read 900 shares and in another CMP No. 73 of 1998 for staying the deposit of 600 shares in the Registry of this Court as per order dated 12.3.1998 passed by the learned Single Judge of this court in Execution Petition No. 6 of 1997. Replies and rejoinders to these applications have also been exchanged. Both the applications came to be decided by a Division Bench of this Court on 21st December, 1999. The learned Judges have recorded their dissenting judgments. Ms. Justice Kamlesh Sharma, J. rejected both the applications whereas Mr. Justice Surinder Sarup, J. (since retired) allowed them. It is in these circumstances that these applications have been placed before this Bench for decision by order of the Honble the Chief Justice. 2. Earlier, these applications were disposed of by this Court on 30.12.1998 observing that the Supreme Court was seized of the matter pertaining to 600 shares in Civil Appeal No. 637 of 1998 and it would not be proper to pass any order on these applications. 600 shares, which were lying in deposit in the Registry of this Court pursuant to order of the Division Bench dated 1.4.1998 were also ordered to be handed over to the counsel for the plaintiff. Against the impugned order dated 1.4.1998, the defendants filed SLPs. (Civil) No. 1417 and 1418 of 1999 in the Supreme Court which were granted and converted into Civil Appeals No. 732 and 733 of 1999, which were allowed by order dated 8.2.1999 extracted by Ms. Justice Kamlesh Sharma, J. In her judgment. 3. I do not consider it necessary to repeat the long drawn out facts of this case which have been exhaustively dealt with by Ms. Justice Kamlesh Sharma, J. Suffice it to say that admittedly, two separate civil suits Nos. Justice Kamlesh Sharma, J. In her judgment. 3. I do not consider it necessary to repeat the long drawn out facts of this case which have been exhaustively dealt with by Ms. Justice Kamlesh Sharma, J. Suffice it to say that admittedly, two separate civil suits Nos. 1 and 2 of 1973 respectively were laid in this Court by the plaintiff and Performa defendant, who is her husband for declaration and permanent as well as mandatory injunction. After trial, ultimately, both the suits were dismissed by a common judgment of learned Single Judge dated 4.3.1985. However, while the suits were pending trial, the learned Single Judge passed order dated 1.6.1984, which has been reproduced in its entirety in paragraph 23 of the judgment by Ms. Justice Kamlesh Sharma, J. The operative part of that order is to the effect that on the prayer made by the learned counsel for the plaintiff and taking into consideration the various circumstances of the case, the learned Single Judge was of the view that the suit qua 600 ordinary shares was likely to fail on legal and technical defects and, as such, in view of various circumstances and specially in view of the fact that the learned counsel for the defendants had also accepted the prayer of the plaintiffs counsel, the plaintiff was allowed to withdraw the suit qua 600 ordinary shares which were in the name of Smt. Surjeet Malhan jointly with others with liberty to file fresh suit on the same cause of action if otherwise permissible under the law. 4. Thereafter, when the suits had reached at the final stage, the learned Single Judge as a result of his findings on various issues held that the plaintiffs were not entitled to any relief and dismissed both the suits by his common judgment and decree dated 4.3.1985. Feeling aggrieved, the plaintiffs filed separate appeals being Regular Appeal Nos. 230 and 231 of 1985 which were allowed by a Division Bench of this court on 14.11.1996, setting aside the judgment and decree of the learned Single Judge. Feeling aggrieved, the plaintiffs filed separate appeals being Regular Appeal Nos. 230 and 231 of 1985 which were allowed by a Division Bench of this court on 14.11.1996, setting aside the judgment and decree of the learned Single Judge. The operative portion of the judgment and decree of the Division Bench is as under:- Consequently the judgment and decree passed by the learned Single Judge in civil suit No.l of 1973 and civil suit No.2 of 1973 is hereby set aside and the suits filed by the plaintiffs are decreed and it is declared that the plaintiff Smt. Surjeet Malhan in civil suit No.l of 1973 is the owner of 1500 ordinary shares and 10 preferential shares of defendant No. 1. Defendants No. 2 and 3 are commanded by a decree of mandatory injunction to hand over the share scripts of these shares to this plaintiff. In case those have been transferred in the name of defendant’s No. 2 or any of his nominees, defendant No. 1 is directed to rectify the register by substituting the name of the plaintiff by amending the register of its share-holders and showing this plaintiff to be the holder of these shares. Similarly, civil suit No.2 of 1973 of Shri B.K. Malhan is also decreed and it is declared that he is the owner of 2230 ordinary shares and sixty four preferential shares of defendant No. 1 - company and defendants No. 2 and 3 are directed to hand over all the share certificates in relation to these shares to this plaintiff. In case, the name of defendant’s No. 2 and 3 or any other person has been substituted in respect of these shares, then defendant No. 1 is commanded by a decree of mandatory injunction to amend its register of share-holders and showing the name of the plaintiff to be the rightful owner of these shares. In both the civil suits No. 1 and 2 of 1973, defendants No. 2 and 3 are restrained from transferring and/or alienating as well as encumbering any of the property of defendant No. 1 - Company in any manner. Costs on the parties." 5. Defendants, feeling aggrieved against the judgments and decree of the Division Bench of this Court filed Civil Appeals No. 737 and 738 of 1997 in the Supreme Court. Costs on the parties." 5. Defendants, feeling aggrieved against the judgments and decree of the Division Bench of this Court filed Civil Appeals No. 737 and 738 of 1997 in the Supreme Court. The said appeals were demised by judgment dated 3.2.1997 and the judgment and decree of the Division Bench of this Court was affirmed by holding inter alia, that there was no concluded contract between plaintiff Mrs. Surjeet Malhan and defendant Mr. R.D. Bhagat and the transfer as contemplated in the case was for no consideration, as it was only for Rupee 1/- and the transfer of shares was in violation of clause 8 of Articles of Association in the absence of previous sanction of the Directors of the company, as provided in the said clause. The defendants thereafter, moved applications (I.A. No. 5-6 in Civil Appeals No. 737 and 738 of 1997) for clarification of the judgment dated 3.2.1997 which were dismissed as withdrawn with permission to file review petition. The review petitions filed were registered and dismissed by order dated 4.2.1999 and the operative part of the judgment has been reproduced by Ms. Justice Kamlesh Sharma, J. in paragraph 5 of her judgment. 6. In the meantime, plaintiff and proforma - defendant filed two execution petitions in this Court which were registered as Execution Petitions 6 and 7 of 1997 respectively. The defendants filed objections to those Execution Petitions. The plaintiff and the proforma-defendant had also moved an application (OMP No. 94 of 1997) under Order 39 Rule 2-A read with Sections 144 and 151 CPC for taking action for willful breach of injunction granted by this Court and for restoring the property of the Company M/s. John Tinson & Co. Pvt. Ltd. i.e. 54, Janpath, New Delhi, which was found to have been transferred in favour of seven parties, who were also impleaded as respondents No.3 to 9 in the said application. The objection petitions were dismissed by common order dated 27.11.1997 by the learned Single Judge having no merit and the execution petitions were ordered to be proceeded and the defendants were directed to place on record of the execution petitions "the share-scripts and all other books of the Company along with upto date record for delivery to the decree holders" and to restore to the company its registered office. So far OMP No. 94 of 1997 is concerned; notice to show cause was issued to the defendants as to "why they be not suitably dealt with and detained in civil prison for not complying with the directions headed down by this court forming the decree." 7. Again, feeling aggrieved, the defendants filed SLP (C) No. 68-70/98 in the Supreme Court which came up for hearing on 17.2.1998 when the following order was passed:- "Ms. Suruchi Aggarwal, Advocate takes notice on behalf of the respondents. Two weeks for counter. Two weeks thereafter for rejoinder. List after five weeks. Pending further orders, the execution proceedings, in so far as they relate to the books and record of the company and its registered office, are stayed. Also in regard to the contempt that is alleged. In so far as 600 shares of the Company are concerned, Mr. Dimpankar Gupta state that the petitioners shall move the Division Bench of the High Court for appropriate orders." 8. This order was further modified on 4.5.1998 which reads as under:-"Special leave granted. Pending the disposal of the appeals, the execution proceedings in so far as they relate to the books and records of the company and its registered office are stayed. Also, in regard to the contempt that is alleged." 9. Accordingly, the defendants have complied with the order of the Executing Court to the extent which was not stayed by the Supreme Court by its orders dated 17.2.1998 and 4.5.1998 and deposited 3130 ordinary shares on 23.2.1998 and Rs. 10,000/- as cost as recorded in the order dated 12.3.1998 passed in Execution Petition No. 6 of 1997. By the said order the defendants were also directed to deposit 600 shares in the Registry of this court and the case was adjourned to 6.4.1998 for arguments in respect of the amount covering the preferential shares as the defendants had deposited an amount of Rs.74,000/- as value of preferential shares. Thereafter the parties exchanged their respective affidavits which were considered by the Executing Court and passed the order which has been reproduced in extenso by Ms. Justice Kamlesh Sharma, J in paragraph 9 of her judgment. However, after hearing the learned counsel for the parties, the learned Judge of the Executing Court passed order on 30.12.1998 which is also reproduced in para-10 of the judgment of Ms. Justice Kamlesh Sharma, J. 10. Justice Kamlesh Sharma, J in paragraph 9 of her judgment. However, after hearing the learned counsel for the parties, the learned Judge of the Executing Court passed order on 30.12.1998 which is also reproduced in para-10 of the judgment of Ms. Justice Kamlesh Sharma, J. 10. Against the order dated 30.12.1998 of the Executing Court, the defendants filed SLP(c) No. 1440 of 1999 which was dismissed by the following order on 8.2.1998:- "It is clear that no contempt proceedings can be taken contrary to the order of this court dated 17.2.1998 in S.L.P.(C) Nos. 68-70/98 and confirmed on 4.5.1998. The High Court may proceed upon this basis after hearing counsel on either side. The Special Leave Petition is dismissed with this observation." 11. Thereafter the Executing Court passed order dated 23.3.1999 in which after taking notice of the order dated 8.2.1999 of the Supreme Court, directions were issued which are reproduced 12. The claim of the defendants in these applications is that in view of the order dated 1.6.1984 in civil suit No. 1 of 1973 whereby the plaintiff-Mrs. Surjeet Malhan was allowed to withdraw the suit qua 600 ordinary shares, which were in her name jointly with others, with liberty to file a fresh suit which she never filed and the said order becoming final, the said 600 shares could not form part of the decree which had been passed by the Division Bench in RFA No. 230 of 1985 on 14.11.1996. In this view of the matter, according to the defendants, the serious error has crept in on account of either accidental slip or omission in the judgment and decree dated 14.11.1996 which deserve to be corrected. In opposition to these applications, the plaintiff in her reply affidavit has taken number of preliminary objections including that the applications on behalf of defendant M/s. Johan Tinson and co. through defendants R.D. Bhagat and Mrs. Salochna Bhagat are wholly misconceived, as they have no concern whatsoever with the affairs of the company. It is denied that any clerical or arithmetical mistake has occurred in judgment and Decree dated 14.11.1996 passed by the Division Bench in RFA No. 230 of 1985. She also stated that since this judgment stands merged in the judgment of the Supreme Court dated 3.2.1997 passed in Civil Appeals No. 737-38 of 1997, the amendment if any, can only be corrected by the Supreme Court. She also stated that since this judgment stands merged in the judgment of the Supreme Court dated 3.2.1997 passed in Civil Appeals No. 737-38 of 1997, the amendment if any, can only be corrected by the Supreme Court. Referring to the order dated 8.5.1984 whereby time was granted to defendant R.D. Bhagat to produce transfer forms in addition to transfer forms Exts. PW 5/2 and PW 5/3, which have been stated to have been signed by the plaintiff Mrs. Surjeet Malhan on her behalf and on behalf of her sisters and others, which defendant R.D. Bhagat failed to produce despite number of opportunities granted to him, it is alleged on behalf of the plaintiff that it was because of the said statement of defendant R.D. Bhagat that the plaintiff had withdrawn her suit for 600 ordinary shares, which were jointly held by her alongwith her brothers and sisters with permission of file a separate suit as had those transfer forms been in existence they would have constituted altogether different transaction. It is also alleged by the plaintiff that she filed company petition No. 2 of 1977, seeking, inter alia, that the names of the petitioners in the share Registrar of the Company in respect of the following shares be restored: Mr. B.K Malhan.2230 ordinary shares, petitioner No. 164 preference shares. Mrs. Surjeet Malhan900 ordinary shares 600 petitioner No.2.ordinary shares held jointly with her brother and three sisters. 13. On 16.4.1982 the Company Judge ordered that the Company Petition be listed alongwith the civil suits No. 1 and 2 of 1973 for evidence and evidence to be recorded in such civil suit was to be read as evidence in the Company Petition as well in which prayer in respect of 600 shares was not withdrawn. Ultimately, in view of the judgments and Decree dated 14.11.1996 passed by the Division Bench of this court in RFAs No. 230 and 231 of 1985, the Company petition was disposed of having not survived. Ultimately, in view of the judgments and Decree dated 14.11.1996 passed by the Division Bench of this court in RFAs No. 230 and 231 of 1985, the Company petition was disposed of having not survived. On merits, the plaintiff alleged that by filing the applications udner consideration the defendants have sought second review on the grounds which were neither taken up in the first review petition before this court nor in the Civil Appeals before the supreme court nor before the company Court but it was taken up for the first time at the time of execution of the decree in Execution Petitions No. 6 and 7 of 1997 which was dismissed by order dated 7.11.1997 against which S.L.P. is pending in the Supreme Court. 14. In their rejoinder filed by the defendants tea preliminary objections raised in the reply of the plaintiff have been denied and reference has been made to various orders passed by the learned Single Judge during the trial to counter the stand taken therein. By filing further supplementary affidavits the parties have placed on record the relevant pleadings, documents and orders on the file of the trial court in support of their respective stands. 15. I have heard learned counsel for the parties and gone through the findings recorded by the learned Judges in their dissenting judgments as well as the entire material on record. Mr. Sanjay Karol, learned senior counsel has vehemently contended that in view of the order dated 1.6.1984 passed in Civil Suit No. 1 of 1973 allowing the plaintiff to withdraw the suit qua 600 ordinary shares, the plaintiff is estopped from urging that the suit with regard to said 600 shares would survive and decree could be passed in respect thereof by Division Bench of this court in RFA No. 230 of 1985. It is also argued that after the withdrawal of the suit under Order 23 Rule 1 C.P.C. with regard to 600 shares the parties stood relegated to the position prior to the filing of the suit and no decree could be passed in respect thereof. It is further alleged by the learned senior counsel that by not placing correct and true facts before the Division Bench of this court that the suit with regard to 600 shares stood withdrawn, fraud has been perpetuated on the Court and the defendants. It is further alleged by the learned senior counsel that by not placing correct and true facts before the Division Bench of this court that the suit with regard to 600 shares stood withdrawn, fraud has been perpetuated on the Court and the defendants. Referring to the grounds of appeal preferred by the plaintiff before the Division Bench against the judgment and decree of the learned Single Judge dismissing her suit, it is pointed out that no ground was preferred that the suit was wrongly dismissed as withdrawn for 600 shares. According to the learned senior counsel the judicial discipline demands that omission or mistake in the judgment and decree dated 14.11.1996 be rectified as prayed for. According to the learned senior counsel the judicial discipline demands that omission or mistake in the judgment and decree dated 14.11.1996 be rectified as prayed for. The learned senior counsel also contended that the Division Bench of this court has passed a decree in excess of the claim which was claimed by the parties in the court and no lis inter se between the parties was pending before the Division Bench qua 600 shares and that the Division Bench has lost sight of this aspect of the matter and thereby a mistake in the judgment and decree of the Division Bench has arisen which can be permitted to be corrected by the Court under Section 152 C.P.C. He also contended that at the time of deciding the RFA by the Division Bench the test was the intention of the Court and also the parties and the claim of the plaintiff for seeking decree qua 600 shares for which the suit was withdrawn by her, was barred by Order 2 Rule 2 C.P.C. The learned senior counsel further contended that the judicial discipline and proprietary demand that the mistake crept in the judgment of the Division Bench be rectified and this is certainly an error accidentally occurred by omission and by the conduct and acquiescence the decree holder is estopped in fact and in law even opposing the applications seeking rectifications of the judgment and decree inter alia for the reason that the plaintiff has no locus to oppose the counters which have been filed by the defendants to prevent the abuse of process of court and to meet the ends of justice as the plaintiff has perpetuated fraud not only on the court but also on the defendants when she filed the appeals before the Division Bench seeking decree qua 600 shares which was not the subject matter of the Civil Suit for which the sought liberty from the learned Single Judge to file fresh suit if permissible under law and that was never the subject matter in the judgment and decree of the learned Single Judge while dismissing the suit in respect of other reliefs. The learned senior counsel invited my attention to some of the relevant case law on the ambit and scope on Section 152 CPC which were referred to by Ms. Justice Kamlesh Sharma, J in her judgment. The learned senior counsel invited my attention to some of the relevant case law on the ambit and scope on Section 152 CPC which were referred to by Ms. Justice Kamlesh Sharma, J in her judgment. The learned senior counsel also referred to various provisions of Section 26; Order 2 Rule 1; Order 6 Rule 1; Order 7 Rule 11 (d); Orders 8; 11; 13; 14; 18; 20; Order 23(2) and order 23(3) (b) of the C.P.C, which in my view are not relevant and material for consideration of the Court for the purpose of deciding these applications. 16. Per contra, Mr. D.K. Khanna, learned counsel appearing for the plaintiff has argued that the applications under consideration are not maintainable at this late stage, as the error sought to be corrected in the judgment dated 14.11.1996 has been pointed out for the first time in the execution petition after the said judgment stood merged into the judgment dated 3.2.1997 of the Supreme Court passed in Civil Appeals No. 737-38 of 1997 whereby the judgment and Decree dated 14.11.1996 of the Division Bench stood affirmed and the review sought for against the judgment dated 3.2.1997 was also dismissed by the Supreme Court by its order dated 4.2.1999. Mr. Khanna also referred to the findings of the Division Bench on the R.F.A. which were affirmed by the Supreme Court by observing that there was no concluded contract between the plaintiff and defendant R.D. Bhagat and also that transfer as contemplated in the case was for no consideration and transfer of shares was in violation of clause 8 of the Articles of Association. Mr. D.K. Khanna, learned counsel has further urged that since the transaction in respect of 1500 shares including 600 shares was one, withdrawal of the suit for 600 shares by order dated 1.6.1984 of the learned Single Judge, was of no consequence to the parties. Mr. D.K. Khanna, learned counsel has further urged that since the transaction in respect of 1500 shares including 600 shares was one, withdrawal of the suit for 600 shares by order dated 1.6.1984 of the learned Single Judge, was of no consequence to the parties. The learned counsel has also made an endeavor to show that the order dated 1.6.1984 was passed on the basis of mistaken facts, inasmuch as, the learned counsel appearing for the plaintiff gave statement to withdraw the suit qua 600 shares jointly held by the plaintiff alongwith her brother and sisters on her failure to implead them as party respondents as per order dated 12.5.1975 passed by the learned Single Judge besides allowing the amendment of the written statement sought for by the defendants, whereas, no such order was passed and the learned Single Judge had only granted liberty to the plaintiff to file replication and ordered to list the suit for framing additional issues on the basis of amended written statement and replication and in fact additional Issue No.2-A, "Whether the suit was bad for non joinder of necessary parties" was framed which was lateron decided as not pressed. According to the learned counsel order dated 1.6.1984 is void having been passed on the agreed statements of the learned counsel for the parties given on the mistaken belief that by order dated 12.5.1975 directions were issued to the plaintiff to implead her brother and sisters as parties to the suit, otherwise also nonjoinder of necessary parties, if any, was not a formal defect for which the suit qua 600 shares was required to be withdrawn. 17. I have given my anxious and thoughtful consideration to the respective contentions of the learned counsel for the parties. The order dated 12.5.1975 was passed on OMPs No. 97 and 108 of 1974 filed in Civil Suit No. 1 of 1973. In OMP. No. 97 of 1974 filed by the defendants, the prayer made was for dismissal of the suit on the ground that since the immovable property for which permanent injunction was sought for was situated in New Delhi, this Court has no jurisdiction in the matter. In OMP. In OMP. No. 97 of 1974 filed by the defendants, the prayer made was for dismissal of the suit on the ground that since the immovable property for which permanent injunction was sought for was situated in New Delhi, this Court has no jurisdiction in the matter. In OMP. No. 108 of 1974 the defendants had prayed for the amendment of their written statement by adding preliminary objection No. 3 for non-joinder of necessary parties and preliminary objection No.4 was taken in respect of jurisdiction of this Court. Both these applications were allowed by the learned Single Judge by common order dated 12.5.1975 permitting the defendants to file amended written statement taking the preliminary objections of non-joinder of necessary parties and jurisdiction. The operative portion of the order dated 12.5.1975 has been reproduced by Ms. Justice Kamlesh Sharma, J. in para 20 of the judgment. 18. Ultimately, additional Issue No. 2-A was settled by the learned Single Judge on 4.3.1985 in both the suits which has been reproduced by Mr. Justice Surender Sarup, J. in para 3 of his judgment. The learned Single Judge who dealt with the suits while discussing the said order passed the order which has been reproduced by both the learned Judges in paras 20 and 3 of their respective Judgments. It is manifest from the reading of the said order that it was in view of this development during the pendency of the suit, that at the final stage the counsel for the defendants did not press this issue. The learned Single Judge while finally dismissing both the suits on merits, omitted to mention the fact that in the suit of Smt. Surjeet Malhan, part of the claim in respect of 600 ordinary shares had already been withdrawn by permitting her to withdrawn the suit qua the same. The learned counsel for the plaintiff seems to be right in urging that by order dated 12.5.1975 it appears that no direction was issued to the plaintiff to implead her brothers and sisters as party in the suit as the preliminary objection of not-joining them as necessary parties was yet to be taken by filing the amended-written statement. The learned counsel for the plaintiff seems to be right in urging that by order dated 12.5.1975 it appears that no direction was issued to the plaintiff to implead her brothers and sisters as party in the suit as the preliminary objection of not-joining them as necessary parties was yet to be taken by filing the amended-written statement. From the records it is further clear that after exchanging amended written statement and replication additional Issue No. 2-A was framed which further confirmed the stand taken by the plaintiff that there was no direction to the plaintiff to implead her brothers and sisters as necessary parties and on non-compliance of which her suit in respect of 600 shares would have suffered from formal defect necessitating its withdrawal, for which mistakenly statements were given by learned counsel appearing for the parties on 1.6.1984 and on the basis of which order dated 1.6.84 was passed which has been reproduced by Ms. Justice Kamlesh Sharma, J in paragraph 21 of her judgment. The statement made by the learned counsel appearing for the defendants has also been reproduced in para 22 and further the orders passed by the learned Single Judge on 1.6.1984 on the basis of the said statements of the learned counsel for the parties is found recorded in para 23 of her judgment. 19. The learned Judges of the Division Bench of this court in RFA Nos. 230 and 231 of 1985 had reproduced entire issues including additional issues in their judgment dated 14th November, 1996 and considered the respective contentions of the learned counsel on both side and consequently the judgments and decree of the learned Single Judge in both the suits were set aside and the suit filed by plaintiff was decreed holding plaintiff Smt. Surjeet Malhan in Civil Suit No. 1 of 1973 owner of 1500 ordinary shares including 600 ordinary shares and 10 preferential shares of defendant No. 1. The defendants carried the judgments and decree of the Division Bench by way of civil appeals No. 737 and 738 of 1997 which were dismissed by their Lordships of the Supreme Court on February 3, 1997 in John Tinson & Co. Pvt. Ltd. & Ors. v. Surjeet Malhan (Mrs.) & Anr. 1997 (9) Supreme Court Cases 651. Their Lordships in para 4 of the judgment held as under: - "4. The first respondent, Mrs. Pvt. Ltd. & Ors. v. Surjeet Malhan (Mrs.) & Anr. 1997 (9) Supreme Court Cases 651. Their Lordships in para 4 of the judgment held as under: - "4. The first respondent, Mrs. Surjeet Malhan held 1500 shares in total-900 in her name and 600 in the name of other relatives- and 10 preferential shares. The second respondent, B.K. Malhan, had held 2230 ordinary shares and 64 preferential shares. It would appear that there was an agreement between B.K. Malhan and Shri R.D. Bhagat, the appellant, for transfer of the shares and completion of the transaction to put on rails the company which was running in losses. It would appear that as per the agreement, subsequent transactions were to be completed and in furtherance thereof, it appears that the shares, admittedly, were entrusted to Mr. Bhagat with a blank transfer form. Thereafter, the disputes arose between them. In Consequence, the suits came to be laid by the respondents against the appellants." 20. The relevant observations of the Division Bench in its judgment dated 14.11.1996 in RFA 231 of 1985 have been extracted by Ms. Justice KamJesh Sharma, J. in paragraph 36 and the observation of their Lordships of the Supreme Court in John Tinson & Co. Pvt. Ltd. & Ors v. Surjeet Malhan (Mrs.) & Anrs case (supra) have also been extracted in para 37 of her judgment. The Supreme Court finally dismissed the appeals of the defendants by holding that the Division Bench of the High Court was right in granting the decree as prayed for. Thus, from the judgments and decree of the Division Bench, which has been upheld by the Supreme court, the plaintiff has been granted decree of 1500 ordinary shares including 600 shares jointly held by the plaintiff along with her brothers and sisters. The decree of the Division Bench in regard to 1500 total shares including 600 shares, in law shall stand merged in the appellate decree of the supreme court and it is the appellate decree which shall rule. In Lakshmi Narayan Guin & Ors. The decree of the Division Bench in regard to 1500 total shares including 600 shares, in law shall stand merged in the appellate decree of the supreme court and it is the appellate decree which shall rule. In Lakshmi Narayan Guin & Ors. v. Niranjan Modak 1985 (1) Supreme Court Cases 270, it has been held that it is well settled that when a trial court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on the merits, the trial court decree is said in law to merge in the appellate decree, and it is the appellate decree which rules. 21. After examining the factual situation of the subject matter, the provisions of Sections 151 and 152 C.P.C. under which the applications have been filed by the defendants have been extracted in para-24 by Ms. Justice Kamlesh Sharma, J. in her judgment. The case law cited at the Bar by the learned senior counsel for the defendants which decisions were again cited before me, have also been dealt with and considered by Ms. Justice Kamlesh Sharma, J. in paras 25,26,27 and 28 of the judgment. In addition to the decisions relied upon by learned counsel for the defendants before the Division Bench who decided the present applications and taken into consideration by Ms. Justice Kamlesh Sharma, J in her judgment, Mr. Sanjay Karol, learned senior counsel has also relied upon a judgment of the Supreme Court in I.L. Janakirama Iyer & Ors v. P.M. Nilakanta Iyer & Ors., AIR 1962 Supreme Court 633 in which their Lordships while considering the scope of Ss. 151 and 152 C.P.C. held that where the decretal order drawn in the High court as a result of inadvertence and through error introduced the words "mesne profits" instead of the words "net profits", the error could be corrected by the High court under Ss 152 and 512 even though the appeals from the decree might have been admitted in the Supreme court before the date of correction. After considering the well settled position of law in the decisions cited and relied upon by the learned senior counsel for the defendants, I am of the view that the scope of Section 152 C.P.C. can be attracted if clerical or arithmetical mistakes has occurred in judgments, decree or orders or errors arising therein from any accidental slip or omission and the court at any time either of its own motion or on the application of any of the parties may correct such mistake and such mistake can be corrected by the High Court even during the pendency of the appeal preferred against the impugned decree as held by the Supreme Court in I.L. Janakiramas case (supra). In the present case as noted above, the judgments and decree of the Division Bench dated 14.11.1996 decreeing the suit of the plaintiff for 1500 shares including 600 shares has been upheld by the Supreme Court in the appeal. I am in respectful agreement with the reasoning and finding recorded by Ms. Justice Kamlesh Sharma, J in her judgment that there is no mistake of calculation or mistake in writing or typing in the judgment dated 14.11.1996 of the Division Bench in passing directions for 1500 shares including 600 shares which may be termed as arithmetical or clerical mistake as envisaged under Section 152 C.P.C. Ms. Justice Kamlesh Sharma, J has observed that so far error arising out of accidental slip or omission is concerned, it is careless mistake or omission unintentionally made by the Judge by saying something or omit to say something which he did not intend to say or omit in the judgment and the cause for such a slip or omission may be Judges inadvertence or the Advocates mistake. The learned counsel for the parties did not agitate either before the Division Bench who passed the judgment and decree dated 14.11.1996 in R.F.As No. 230 and 231 of 1985 or before the Supreme Court that the error in not taking into account the order dated 1.6.1984 in regard to 1500 shares including 600 shares has arisen due to inadvertence of the learned Judges of the Division Bench as well as mistake of learned counsel for the parties. The objections qua 600 shares were taken by the defendants for the first time in the Execution Petition Nos. 6 and 7 of 1997. The objections qua 600 shares were taken by the defendants for the first time in the Execution Petition Nos. 6 and 7 of 1997. The judgment and decree of the Division Bench has merged into the judgment dated 3.2.1997 of the Supreme Court, against which Review was also dismissed. In the peculair facts of the case this Bench would not like to exercise its discretion to allow these applications and make the amendment sought for by the defendants in the judgment and Decree dated 14.11.1996 of the Division Bench. The Supreme Court in a recent judgment has dealt with and considered the scope of the provision of Section 152 CPC in Dwarka Das v. State ofMadhya Pradesh & Am. AIR 1999 Supreme Court 1031. Their Lordships have held as under: "Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistake which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and f52 of the CPC can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and f52 of the CPC can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial Court had specifically held the respondents- State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant in so far as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court while order dated 30th November, 1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State." 22. In the light of the above said judgment of the apex court, in my considered view the applications filed by the defendants for seeking correction of the judgments and Decree of the Division Bench are not well founded. 23. I am not persuaded by the arguments of the learned senior counsel for the defendants that fraud has been perpetuated on the Court and the defendants by not placing correct and true facts by the plaintiff in respect of order dated 1.6.1984 and the finding on Issue No. 2-A in the judgment dated 4.3.1985 of learned Single Judge. The defendants were duly represented by their learned counsel and they have also not brought to the notice of the court about the order dated 1.6.1984 as well as the findings on Issue No.2-A in judgment dated 4.3.1985 of the learned single Judge in Civil Suit No. 1 of 1973. I do not find any material on record to come to the conclusion that the plaintiff or the learned counsel appearing on her behalf has knowingly or intentionally brought the order dated 1.6.1984 and the findings on Issue No. 2-A dated 4.3.1985 of the learned Single Judge to the notice of the Court to mislead the Division Bench in RFA No. 231 of 1985 to obtain decree and judgment in respect of 600 shares. The ratio of the judgments in Dadu Dayal Mahasabha v. Sukhdev Arya & Anr. The ratio of the judgments in Dadu Dayal Mahasabha v. Sukhdev Arya & Anr. 1990 (1) Supreme Court Cases 189 and S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) By LRs. & Ors., 1994(1) Supreme Court Cases 1 cited by the learned counsel for the defendants is of no help to the defendants and they are not applicable to the facts and circumstances of the present case. On the other hand the order dated 1.6.1984 was passed on the basis of the statements of the parties which were based on mistaken facts that the suit qua 600 shares jointly held by the plaintiff alongwith her brothers and sisters was likely to fail as she had not impleaded them as party defendants in the suit. 24. The learned counsel for the plaintiff has also argued that order dated 1.6.1984 is void order having been passed on the statements of learned counsel for the parties, which were given under a mistake that by order dated 12.5.1975 directions were issued to the plaintiff to implead her brothers and sisters holding them as necessary parties, which the plaintiff had failed to comply with and considering it a formal defect learned counsel for the plaintiff assumed that the suit in respect of 600 shares would fail and sought permission to withdraw the same, to which the learned counsel for the defendants agreed and on the basis of their statements order dated 1.6.1984 was passed. In order to substantiate his submission the learned counsel for the plaintiff has relied upon Section 20 of the Indian Contract Act. This contention of the learned counsel for the plaintiff cannot be accepted as the order dated 1.6.1984 is not found void order. The learned Single Judge while finally dismissed both the suits on merits, omitted to mention the fact that in the suit of Smt. Surjeet Malhan, part of the claim in respect of 600 ordinary shares had already been withdrawn by permitting her to withdraw the suit qua the same but the suit was dismissed in toto including the claim in respect of 600 shares. The judgment and decree of the learned Single Judge was assailed before the Division Bench in appeal and the Division Bench has taken into consideration the claim of the plaintiff in respect of 600 ordinary shares jointly held by her alongwith others passed decree in her favour. The judgment and decree of the learned Single Judge was assailed before the Division Bench in appeal and the Division Bench has taken into consideration the claim of the plaintiff in respect of 600 ordinary shares jointly held by her alongwith others passed decree in her favour. In State of Gujarat & Ors. v. Biharilal (Dead) By LRs. 1999 (3) S.C.C. 294 it is held that the Court cannot pass any decree more than the claim so available to the parties in a given case. The Division Bench passed the decree in the R.F.A. as claimed by the plaintiff in her suit which was dismissed by the learned Single Judge in toto including 600 ordinary shares and it cannot be said that the Division Bench had passed decree more than the claim so available to the plaintiff. 25. For the above stated reasons, both Civil Miscellaneous Applications No. 72 and 73 of 1998 are devoid of any merit and these are accordingly rejected. The parties, however, shall bear their respective costs of these proceedings.