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2001 DIGILAW 820 (MP)

Lekhram v. Phoolchand Bagdi

2001-11-09

S.P.KHARE

body2001
Judgment ( 1. ) THIS is a revision by the plaintiffs against order dated 5-11-1998 of the Second Additional District Judge, Chhindwara in MJC No. 3 of 1997 by which their application under Section 152, Cr. PC for correction of a clerical or arithmetical error in the judgment and decree dated 23-7-1990 in Civil Suit No. 65-A of 1990 of the Court of II Civil Judge, Class II, Chhindwara has been rejected. The delay in filing this revision is condoned. ( 2. ) THE plaintiffs suit was in respect of Khasra Nos. 108, 111, 142,6/1 and 106 total area 25. 46 acres of village Partala. In the last para of the judgment, that is the operative part, the total area 25. 46 acres has been correctly given but "khasra No. 6/1 area 3. 79 acres and Khasra No. 106 area 13. 75 acres" have been omitted. The judgment and decree were confirmed in appeal on 20-4-1992 by the First Appellate Court in Civil Appeal No. 25-Aof 1990. The second appeal of the defendants was dismissed under Order 41 Rule 11, CPC on 19-1-1994 by this Court. The plaintiffs submitted an application before the Trial Court for correction of the mistake but it was rejected on the ground that the mistake should be corrected by this Court. The plaintiffs filed a Civil Revision No. 842 of 1995 before this Court and it was held by this Court by order dated 21-1-1997 that the second appeal having been dismissed summarily by this Court the mistake cannot be corrected by this Court in view of the specific provision in Section 153-A, CPC but it should be corrected by the Court which had passed the decree "in the first instance". The matter was "returned back to the Court below for consideration on merits". The plaintiffs application was again rejected by the Trial Court by order dated 25-6-1997 on the ground that the decree of the Trial Court which was merged in the decree of the First Appellate Court which was passed on merits after hearing both the sides and therefore correction can be made by the First Appellate Court only. The plaintiffs application was again rejected by the Trial Court by order dated 25-6-1997 on the ground that the decree of the Trial Court which was merged in the decree of the First Appellate Court which was passed on merits after hearing both the sides and therefore correction can be made by the First Appellate Court only. The plaintiffs then submitted an application under Section 152, CPC before the First Appellate Court which has been rejected by the impugned order on the ground that this Court in the Civil Revision had directed the Trial Court to correct the error and, therefore, that Court should have corrected it. Thus, though the decree was passed in the year 1990, the plaintiffs are not able to enjoy its fruits for the last eleven years. ( 3. ) IT is well settled that an act or omission of the Court shall prejudice none and it has a duty to correct its errors so that its record represents a true state of affairs. This is the salutary rule on which Section 152, CPC is based. The Court can correct clerical and arithmetical errors in its records even suo-motu without the need of any application from either side. There is no limitation for doing so. Such correction can be made at any time. The normal rule is that it is the Court which commits the mistake must correct it. ( 4. ) THE clerical or arithmetical errors can be corrected by the Appellate Court deciding the appeal under Order 41 Rule 32, CPC on an application under Section 152, CPC or suo-motu on the principle of the merger of the decree of the Trial Court in the decree of the Appellate Court. It was held by a Division Bench of this Court long back in Kanhaiyalal v. Prabhakar, 1960 MPLJ Note 214 that if a decree of confirmation was passed by the Appellate Court after hearing the parties, the decree of the Trial Court merges in the decree of the Appellate Court which then becomes the substantive decree and an application for amendment of the decree must be made to the Appellate Court. This decision was followed in Mojuddin v. Hiralal, 1967 MPLJ Note 38. The same view has been taken by the Full Bench of Kerala High Court in Kannan v. Narayani, AIR 1980 Ker. This decision was followed in Mojuddin v. Hiralal, 1967 MPLJ Note 38. The same view has been taken by the Full Bench of Kerala High Court in Kannan v. Narayani, AIR 1980 Ker. 76 , where it has been held that where there has been an appeal and it is decided after hearing both sides the decree under appeal merges in the decree in appeal and it is only the Appellate Court that could correct or amend the decree under Section 152 of the Code. ( 5. ) IN view of the above legal position the clerical error in the judgment and decree of the Trial Court can be corrected by the Appellate Court which had affirmed them. Rule 6 of Order 20 provides that the decree shall specify clearly the relief granted. Order 41 Rule 35, CPC states that the decree in appeal shall contain a "clear specification of the relief granted". Thus, the decree cither of Trial Court or of the Appellate Court must be self-contained. ( 6. ) CONSEQUENTLY the impugned order is set aside. The First Appellate Court is directed to call for the record of the Civil Appeal and correct the clerical mistake in the judgment and decree of the Trial Court, as mentioned above, by passing a suitable order. The parties are directed to appear before the Trial Court on 10-12-2001. The correction must be made within three months of the date of this order.