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2002 DIGILAW 710 (MP)

Noar Khan v. Oriental Bank of Commerce, Mandsaur

2002-07-26

A.K.GOHIL

body2002
JUDGMENT This revision is directed against order dated 28.4.1999 passed by Third Additional District Judge, Mandsaur in Civil Suit No. 6-B/95 on an application under section 152 of the Code of Civil Procedure (for short "the Code") whereby corrected the judgment and decree dated 14.9.1998 and corrected the relief clause and substituted the words "from the date of suit" in place of "from the date of decree". The brief facts for disposal of this revision petition are that on 14.9.1998 Third Additional District Judge, Mandsaur passed a decree against the applicants/defendants for recovery of Rs. 1,28,201-00 with interest thereon at the rate of Rs. 16.5% p.a. from the date of decree and thereafter on an application filed by the Respondent-Bank under section 152 of the Code by order dated 28.4.1999 allowed the same and corrected the decree on the ground that in the relief clause the plaintiff had sought a decree for pendente lite and future interest from the date of filing of the suit till its recovery but due to typographical mistake or due to accidental slip in the decree, it was mentioned as from the date of the decree. I have heard learned counsel for parties and perused the record. The submission of Shri Saraf, learned counsel for applicants was that the Court cannot exercise the powers under section 152 of the Code and the Court cannot correct the decree under section 152 of the Code and relied on two Supreme Court decisions, namely K. Rajamouli v. A.V.K.N. Swamy, reported in AIR 2001 SC 2316 . and Plasto Pack. Mumbai and another v. Ratnakar Bank Ltd.. reported in (2001) 6 SCC 683 , in which it has been held that under section 152 power cannot be exercised so as to add to or subtract from any relief earlier granted. In the case of Plasto Pack (supra) an application under section 152 was filed after more than 2 years and 8 months and in the case of K. Rajamouli (supra) pendenle lite interest was not granted by arbitrators and Trial Court and in such circumstances it was held that such a mistake cannot be corrected under section 152. In this case notice of this application under section 152 of the Code was not served on the applicants/defendants as they were ex-parte throughout during the pendency of the suit and the application under section 152 was filed on 5.4.1999. In this case notice of this application under section 152 of the Code was not served on the applicants/defendants as they were ex-parte throughout during the pendency of the suit and the application under section 152 was filed on 5.4.1999. The Trial Court considered the facts and features of the case as well as the relief sought by the plaintiffs and found that it was nothing but a typographical error or an accidental slip or an omission. Therefore, allowed the application and corrected the decree and substituted the words "from the date of suit" in place of' 'from the date of decree" on his own subjective satisfaction. Therefore, the Trial Court has not committed any illegality nor has committed any error relating to the exercise of Sits jurisdiction. I do not think that any case is made out for interference by this Court in the impugned order passed by the Court below. The applicant may raise the said ground in appeal also. Also heard and considered I.A. No. 738/2000 an application under section 5 of the Limitation Act for condonation of delay. Office is directed to register it as M.(C) P. This revision is barred by 191 days. The submission of learned counsel for applicants on this application for condonation of delay was that on 25.11.1999 applicants came to know about correction in the decree under section 152, even then they filed this revision as well as application on 4.2.2000 when the order was passed on 14.9.1998. Therefore, even after the knowledge why they have not filed the revision quickly and have not assigned any reason for the same. Therefore, I do not think that any case for condonation of delay is also made out. Accordingly this application under section 5 of the Limitation Act also has no merits and is hereby dismissed. Consequently, this revision as well as application for condonation of delay fail and are hereby dismissed with no order as to costs.