Virudhuchalam Co-operative Building Society Ltd. v. Natarajan & Others
2005-07-14
R.BANUMATHI
body2005
DigiLaw.ai
Judgment :- This revision is directed against the order of Principal District Munsif, Virudhachalam, made in I.A.No. 229 of 1989 in O.S.No.791 of 1983, dated 14.12.1999 dismissing the petition filed under Sections 152, 153 read with 151 C.P.C. declining to correct the Judgment and the decree. Third Defendant - Virudhachalam Co-operative Building Society Ltd. Represented by its Secretary is the Revision Petitioner. 2. O.S.No. 791 of 1983:- Respondents 1 to 4/ Plaintiffs have filed this suit for partition and separate possession. Plaintiffs and the first and second Defendants are brothers. According to the Plaintiffs, their grand mother Alamelu Ammal was having only the life estate in the third item of the Plaint schedule property. The said Alamelu Ammal had created a mortgage in favour of D3-Soceity which is not binding the Plaintiffs. Hence, the Plaintiffs have filed the suit claiming that they are entitled to 3/4 share in items 1 and 2 and that the Plaintiffs are absolutely entitled to item No.3. The suit was decreed holding that the Plaintiffs are entitled to 3/4 share in Itemss 1 and 2. It was held that the Plaintiffs are absolutely entitled to Item No.3. Regarding Item No.3, the learned District Munsif found that Alamelu Ammal borrowed loan of Rs.22,000/- from D3-Society and constructed the house thereby acting only in the interest of the minors. On issue No.7, it was found that the loan borrowed by the Alamelu Ammal is binding upon the Plaintiffs. 3. Though the trial Court found that the loan is binding upon the Plaintiffs' right and title in Item No.3, the same has not been mentioned in the operative portion of the Judgment. Hence, I.A.No. 279 of 1989 was filed to amend the Judgment dated 30.2.1988 and to amend the decree also in respect of Item No.3 and in conformity with the findings rendered on issue No.7, the Revision Petitioner / D3-Society has filed this application contending that issue No.7-specific issue has been framed to the effect as to whether the mortgage created by Alamelu Ammal in respect of Item No.3 of the Plaint items is binding on the Plaintiffs. The said issue has been answered in favour of the third Defendant. Answering issue No.7, the trial Court found that the loan is binding upon the right of the Plaintiffs in Item No.3.
The said issue has been answered in favour of the third Defendant. Answering issue No.7, the trial Court found that the loan is binding upon the right of the Plaintiffs in Item No.3. But the same was omitted to be mentioned in the operative portion of the Judgment and decree. Hence, this application has been filed under Sections 152, 153 and 151 C.P.C. 4. The Plaintiffs have filed the counter statement resisting the application contending that the third Defendant-Society ought to have filed only an appeal. The application seeking for amendment of the Judgment and the review of the Judgment is only to circumvent the remedy by way of filing the appeal. The application has not been filed within the time. The application filed under Section 5 of the Limitation Act along with this petition has been returned but the same has not been re-presented. Hence, the application in I.A.No. 279 of 1989 for amendment of judgment and decree is not maintainable. If any Review Application has been filed, it would expose the hollowness of the application seeking the amendment of the Judgment. 5. Upon consideration of the contentions of both parties, the learned District Munsif dismissed the application finding that the omission is neither a clerical mistake nor an omission and that the same cannot be sought to be amended under Sections 152 and 153 C.P.C. It was also found that remedy is available to the third Defendant only by way of filing the appeal before the Appellate Court. 6. Aggrieved over the dismissal of the application, seeking the amendment of the Judgment and decree, the Revision Petitioner/D3- Society has preferred this revision. 7. Learned counsel for the Revision Petitioner has submitted that when the issue No.7 was answered in favour of D3-Society holding that Plaintiffs' right in Item No.3 is subject to the mortgage in favour of D3-Society. The same ought to have been incorporated in the decree clause. It is the further contention that any omission which causes prejudice to the parties is to be corrected by exercising the power under Sections 152 and 153 C.P.C. and the trial Court erred in dismissing the application for correcting the Judgment and Decree. 8. Notice has been sent to the Respondents. Third and fourth Respondents have been served. First and Second Respondents have been unserved.
8. Notice has been sent to the Respondents. Third and fourth Respondents have been served. First and Second Respondents have been unserved. Since the revision is of the year 2000 which is affecting the interest of the Revision Petitioner - Society, notwithstanding the non serving of the notice to the first and second Respondents, the Revision Petition has been posted for final hearing. Heard the arguments of the Revision Petitioner. While hearing the Revision Petition, the contentious points urged by the Plaintiffs in the lower Court has been taken into consideration. 9. By a careful consideration of the impugned order, submissions of the Revision Petitioner and other materials on record, the following points arise for consideration in this Revision. (i) When the mortgage in favour of D3-Society was held to be binding on the Plaintiffs and whether the operative portion of the Judgment and decree as it stands suffers from infirmity? (ii) Whether the order of the lower Court declining to amend the decree suffers from infirmity warranting interference? 10. On 13.8.1975, Alamelu Ammal has obtained a loan of Rs.22,000/- from D3-Society mortgaging the third item of property. Utilising the said loan, She constructed a house in Item No.3 and the Plaintiffs are in enjoyment of the said house. To substantiate the barrowal of the loan by Alamelu Ammal and to speak about the subsistence of the loan, the Secretary of D3-Society was examined. The Secretary has stated that the loan was obtained by Alamelu Ammal only in the interest of minors Plaintiffs and that the loan amount has been utilised for the construction of the house which was in the beneficial interest of the minors Plaintiffs and that the loan is binding on the Plaintiffs. 11. The Plaintiffs contested the case contending that the loan is not binding on them. On the above pleadings in the trial Court, Issue No.7 was framed as:- 12. In answering Issue No.7, the evidence adduced by the parties was elaborately considered by the trial Court. Upon consideration of the evidence, the learned District Munsif found that the loan amount was utilised for the construction of the house and hence, the mortgage executed by Alamelu Ammal would be binding on the Plaintiffs regarding item No.3 of the property. The relevant findings of the trial Court is as under:- 13.
Upon consideration of the evidence, the learned District Munsif found that the loan amount was utilised for the construction of the house and hence, the mortgage executed by Alamelu Ammal would be binding on the Plaintiffs regarding item No.3 of the property. The relevant findings of the trial Court is as under:- 13. Though the mortgage was found to be binding on the Plaintiffs in the operative portion of the Judgment, the same was omitted to be mentioned. The operative portion of the Judgment reads:- Thus, the binding nature of D3-Society loan and the mortgage has been omitted in the operative portion of the Judgment. Since the same has not been mentioned in the operative portion of the Judgment, the corresponding clause was not included in the decree. 14. The operative portion of the Judgment must have been in such a way so as to make it self contained and capable of execution without referring in other documents. Since the Judgment is dated 30.3.1988 and the application has been filed in 1988, the cases governed by the provisions prior to the amendment Act 1999. Order XX, Rule 6 deals contents of decree which reads:- "Contents of decree:- The decree shall agree with the Judgment; it shall contain (B) the number of the suit, the (names and descriptions of the parties, their registered addresses), and particulars of the claim, and shall specify the relief granted or other determination of the suit". A decree is the mouth-piece of the suit in its immediate result and without it the dispute between the parties would not be intelligible. It must necessarily be drawn up in accordance with the Judgment. 15. To appreciate the importance of last paragraph of the Judgment, we may refer to Order XX, Rule 6(A) of CPC prior to CPC (Amendment)Act 1999. " R.6A. Last paragraph of Judgment to indicate in precise terms the reliefs granted.- (1) The last paragraph of the Judgment shall state in precise terms the relief which has been granted by such Judgment. .....
" R.6A. Last paragraph of Judgment to indicate in precise terms the reliefs granted.- (1) The last paragraph of the Judgment shall state in precise terms the relief which has been granted by such Judgment. ..... b) so long as the decree is not drawn up, the last paragraph of the Judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the Judgment; but as soon as a decree is drawn up, the last paragraph of the Judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose: Provided that where an application is made for obtaining a copy of only the last paragraph of the Judgment, such copy shall indicate the name and address of all the parties to the suit". Thus the last paragraph of Judgment is very important. In the case on hand, the last paragraph does not clearly indicate the binding nature of mortgage of Item No.3 of the property in favour of D3-Society. When the binding nature of mortgage on the Plaintiffs' entitlement to Item No.3 has not been mentioned in the operative portion of the Judgment, the Court ought to have exercised its power under Sections 152 and 153 read with Section 151 of C.P.C. for correcting the same. Because the binding nature of the mortgage was not indicated in the last paragraph of the Judgment, there is conspicuous absence in the decree on the binding nature of loan of D3-Society on Plaintiffs' right on Item No.3 of the suit property. 16. Omission in the last paragraph of the judgment and in the decree regarding the binding nature of the mortgage of Item No. 3 and the Plaintiffs' right thereon causes serious prejudice to D3-Society. Under Section 152 clerical or arithmetical mistake in Judgment, decrees or orders or errors arising therefrom may at any time be corrected by the Court either on its own motion or on application by any of the parties. The section is based on two important principles (i) that an act of the Court shall prejudice no man and (ii) that courts have a duty to see that their records are true and they represent the correct state of affairs.
The section is based on two important principles (i) that an act of the Court shall prejudice no man and (ii) that courts have a duty to see that their records are true and they represent the correct state of affairs. So even in the absence of any move by the parties the court can suo motu make the correction. 17. But such omission by the Court which causes prejudice to any party can also be corrected under Section 152 and 153 C.P.C. Elaborating the Courts' power under Section 152 C.P.C., in A.I.R. 2001 S,C, 1984 (1088,1089)( JAYALAKSHMI COELHO - Vs. - OSWALD JOSEPH COELHO), the Supreme Court has held:- " As a matter of fact such inherent powers would generally be available to all Courts and authorities irrespective of the fact whether provisions contained under Section 152 CPC may or may not strictly apply to any particular proceeding. But before exercise of such power a valid finding that the order or the decree contains or omits something which was intended to be otherwise that is to say while passing the decree the Court must have been passed in particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The power of rectification of clerical errors, arithmetical errors or accidental slips does not empower the Court to have a second thought over the matter and to find out that a better order or decree should be passed. The power under Sec.152 is confined to something initially intended but left out or added against such intentions". 18. The last paragraph of the Judgment should clearly spell out the terms as to the relief granted. If the last paragraph does not precisely set out the relief, the same cannot have the effect of the decree for the purpose of execution in compliance of Order XX Rule 6A C.P.C. The importance of operative portion of the judgment cannot be under estimated. If the decree is not drafted, the last paragraph of the Judgment itself shall be deemed to be the decree for the purpose of execution. To impress upon the Judicial Officers, it is necessary to emphasize the importance of the operative portion of the Judgment.
If the decree is not drafted, the last paragraph of the Judgment itself shall be deemed to be the decree for the purpose of execution. To impress upon the Judicial Officers, it is necessary to emphasize the importance of the operative portion of the Judgment. Prior to the amendment, under Order XX, Rule 6A C.P.C. "that last paragraph of the Judgment shall state in precise terms the relief which has been granted by such Judgment". Though after the amendment with effect from 01.7.2002, this is omitted, it is always desirable that the last operative portion of the Judgment must specifically state the relief granted to the Plaintiffs. Only then, it would be easy for the office to prepare the self-contained decree. Preparing decree might appear to be a simple affair. But it is not so. More often than not, it is noticed that the last paragraph of the Judgment do not clearly indicate the relief granted. The operative portion of the Judgment merely stating " ..... that the suit is decreed as prayed for....." lacks clearity. The Office incharge of drafting the decree may find it difficult to comprehend. This is all the more so, when the definite findings as in the in the instant case has been omitted to be mentioned in the last paragraph of the Judgment. The Judicial Officers are impressed upon that in all cases, it becomes duty of the Judge to make the operative portion of the Judgment specific, indicating the exact relief granted. 19. The omission in the operative portion of the Judgment regarding the binding nature of the mortgage loan of Item No.3 of the suit property and the Plaintiffs' right thereon greatly affects the right of D3-Society which is to function for the beneficial interest of its members. The lower Court has not correctly appreciated the purport of Section 152 C.P.C. 20. It does not necessarily refer to accidental slip or omission of the Court or its ministerial staff. The accidental slip or omission is to be widely interpreted to correct the mistakes/omissions to advance substantial justice. In the last paragraph of the Judgment, the binding nature of the mortgage in favour of D3-society of item No.3 and the Plaintiffs' right thereon is to be included:- The above is to be included in the operative portion of the Judgment as well as a clause in the decree.
In the last paragraph of the Judgment, the binding nature of the mortgage in favour of D3-society of item No.3 and the Plaintiffs' right thereon is to be included:- The above is to be included in the operative portion of the Judgment as well as a clause in the decree. The vital finding on the binding nature of mortgage in favour of D3-Society has not been indicated in the operative portion of the Judgment, it is only to be stated that the last paragraph of the Judgment is not in compliance with Order XX, Rule 6 (A)of C.P.C. 21. Such omission in the last paragraph of the Judgment has caused great hardship to the right of the Petitioner-Society which is to work for the interest of its members. Under such circumstances, the last operative portion of the Judgment and the Decree ought to have been ordered to be corrected as 22. The order declining to amend the last paragraph of the Judgment and the Decree is not in proper exercise of discretion. The impugned order suffers from serious error thereby affecting the right of the petitioner -Society and hence, the impugned order cannot be sustained. 23. For the reasons stated above, the order of the Principal District Munsif, Virudhachalam in I.A.No. 229 of 1989 in O.S.No.791 of 1983, dated 14.12.1999 is set aside and the Revision Petition is allowed. The learned Principal District Munsif, Virudhachalam is directed to incorporate in the last paragraph of the Judgment. The same clause is also ordered to be incorporated as a clause in the decree which has already been drafted. This revision petition is allowed accordingly. In the circumstances of the case, there is no order as to costs.