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2011 DIGILAW 264 (MAD)

Maruthai v. Visalakshi Ammal

2011-01-19

M.VENUGOPAL

body2011
JUDGMENT ( 1. ) THE Revision petitioners/Defendants 1 and 8 have filed the present civil revision petition as against the order dated 20. 08. 2010 in I. A. No. 378 of 2005 in O. S. No. 775 of 1997 on the file of the Principal District Munsif Court, Trichy. ( 2. ) THE trial Court while passing the order in I. A. No. 378 of 2005 on 20. 08. 2010, filed by the petitioners under Section 114 of the Code of Civil Procedure, has among things observed that 'the First Respondent/plaintiff has been allotted the share and that final decree has been passed and after the lapse of one year, the request of the petitioners to correct the judgment/decree by means of filing a petition cannot be accepted and consequently, dismissed the application without costs'. Feeling aggrieved against the order dated 20. 08. 2010 in I. A. No. 378 of 2005 in O. S. No. 775 of 1997 passed by the Principal District Munsif Court, Trichy, the revision petitioners/defendants 1 and 8 as an aggrieved persons have projected the present Civil Revision Petition before this Court. ( 3. ) THE learned Counsel for the petitioners/defendants 1 and 8 urges before this Court that the impugned order of the trial Court dated 20. 08. 2010 in I. A. No. 378 of 2005 in O. S. No. 775 of 1997 suffers from an error apparent on the face of the record and the trial Court has failed to exercise his discretion in not rectifying the discrepancy in the Final Decree to that of preliminary decree when the same is brought to his knowledge. ( 4. ) ADVANCING her arguments, it is the submission of the learned Counsel for the petitioners that Section 152 of Code of Civil Procedure does not specify any time limit for the rectification of error and the error can be rectified "at any time", but this aspect of the matter has not been adverted to by the trial Court in a real perspective which resulted in miscarriage of justice. Also, it is the plea of the learned Counsel for the revision petitioners that a final decree ought to be in conformity with the preliminary decree and that the trial Court has committed an error in relying on an erroneous Commissioner's Report. ( 5. Also, it is the plea of the learned Counsel for the revision petitioners that a final decree ought to be in conformity with the preliminary decree and that the trial Court has committed an error in relying on an erroneous Commissioner's Report. ( 5. ) THAT apart, the trial Court has not adverted to the counter to the final decree application where the objections pertaining to the correctness of the Commissioner's Report have been averred. ( 6. ) EXPATIATING her arguments, it is the contention of the learned Counsel for the petitioners that as per terms of compromise, out of 73 cents of property, the petitioners should get 36. cents and the balance 36. cents, the Plaintiff and the Respondents 2 to 7 would divide the property among themselves. But, the final decree has allotted only 26. cents to the petitioners herein which is against the terms and compromise and the preliminary decree. The learned Counsel for the petitioners submits that the property admeasuring 36. cents has already been allotted to the petitioners through a partition deed dated 30. 08. 1979 and in fact, the present deviation is only between the First Respondent/Plaintiff and defendants 2 to 7 and not with that of the First Respondent and eight defendant. Moreover, the compromise has been entered into only after the Commissioner's Report and indeed the trial Court committed an error in denying the relief stating that no objections to the Commissioner's Report have been filed by the petitioners. ( 7. ) IN short, the contention of the learned Counsel for the petitioners is that the impugned order in trial Court in I. A. No. 378 of 2005 in O. S. No. 775 of 1997 dated 27. 04. 2004 is contrary to the terms of compromise entered into between the parties and therefore, the mistake committed by the trial Court needs to be rectified in furtherance of substantial cause of justice. ( 8. ) PER contra, it is the contention of the learned Counsel for the First Respondent/Plaintiff that the I. A. No. 378 of 2005 filed by the Revision petitioners is barred under Section 97 of the Code of Civil Procedure. As a matter of fact, a Final Decree has been passed in O. S. No. 775 of 1997 on the file of Principle District Munsif Court, Trichy, on 25. 02. 2003. As a matter of fact, a Final Decree has been passed in O. S. No. 775 of 1997 on the file of Principle District Munsif Court, Trichy, on 25. 02. 2003. The learned Counsel for the First Respondent/Plaintiff takes a stand that the impugned order passed in final decree is a appealable decree and the same has been passed long ago and the Petitioners/defendants 1 and 8 have not preferred any appeal and therefore, the ingredients of Section 114 of Code of Civil Procedure are not applicable to the facts of the present case. Furthermore, I. A. No. 378 of 2005 filed by the revision petitioners is barred by the limitation. ( 9. ) THE sum and substance of the contention of the learned Counsel for the First Respondent/Plaintiff is that a final decree passed in main suit in O. S. No. 775 of 1997 by the trial Court is to be assailed only by means of filing of a regular appeal as per the relevant provisions of Code of Civil Procedure and in the absence of the same, I. A. No. 378 of 2005 filed by the revision petitioners is devoid of merits. ( 10. ) THIS Court has heard the learned learned Counsel appearing for the revision petitioners and the learned Counsel for the First Respondent/Plaintiff and noticed their contentions. Before the trial Court in I. A. No. 378 of 2005 in O. S. No. 775 of 1997, the first revision petitioner/first defendant has submitted a written statement through his counsel. In the said written statement filed by the First Revision Petitioner/first defendant before the trial Court in I. A. No. 378 of 2005 in O. S. No. 775 of 1997, the request made by the first revision petitioner is stated hereunder: "The Commissioner had committed a grave mistake in construing that the plaintiff is entitled to 1/3 share in whole of Ac. 0. 73 cents instead of eastern 0. 36. . A reading of Para 5 and 6 of the Commissioners would reveal that the learned Commissioner divided the entire 0. 73 cents instead of allotting 1/3 share out of eastern 0. 36. cents. The Advocate Commissioner divides the entire 0. 73 cents into four portions namely: a)the western most portion- to the west GF as-0. 26. b)the portion marked as EFGH as-0. 10 c)the portion marked as BCHE-0. 22. d)the portion marked as ABCD-0. 14------ Total-0. 73 cents instead of allotting 1/3 share out of eastern 0. 36. cents. The Advocate Commissioner divides the entire 0. 73 cents into four portions namely: a)the western most portion- to the west GF as-0. 26. b)the portion marked as EFGH as-0. 10 c)the portion marked as BCHE-0. 22. d)the portion marked as ABCD-0. 14------ Total-0. 73------ It is submitted that the Advocate Commissioner wrongly allotted to the plaintiff the following portions namely: 1)the portion marked as ABCD-0. 14 2)the portion marked as EFGH as-0. 10----- Total0. 24 ----- Under the compromise the plaintiff is entitled to 1/3 of eastern 0. 36. cents namely 0. 12 cents. Instead the Commissioner had allotted 0. 24 cents that too allotting the property marked as EFGH Ac. 0. 10 cents which is a portion of the western 0. 36. and is left out of the Compromise. The petitioner would submit that a minor correction in the final decree to the following effect would suffice. a)Since the property to the west of EH line is not part of the Compromise, the portion marked as EFGH measuring 0. 10 cents is left out of the allotment and the portion marked as ABCD measuring 0. 14 cents is allotted to the plaintiff, the plaintiff will be getting an extent of an additional 0. 02 cents instead 0. 12 cents and the petitioner is ready to forego the 0. 02 cents. It is submitted that ends of justice requires that the final decree must truly reflect the Compromise and a minor correction leaving out the portion marked as EFGH 0. 10 cents out of the final decree and allotting the property marked as ABCD 0. 14 cents to the plaintiff may be enough. The sum and substance of the petition is only to correct the mistake and therefore provision in the petition can be read as Section 152 CPC. ( 11. 10 cents out of the final decree and allotting the property marked as ABCD 0. 14 cents to the plaintiff may be enough. The sum and substance of the petition is only to correct the mistake and therefore provision in the petition can be read as Section 152 CPC. ( 11. ) A closure scrutiny of the order in I. A. No. 378 of 2005 in O. S. No. 775 of 1997 indicates that the trial Court in paragraph 9' has inter alia observed that in the Final Decree, it has been decided that the suit first item shown in yellow colour as T. S. N. 1335/5 to an extent of 14 cents and the Black colour portion as T. S. N. 1335/1 to an extent of 10 cents can be allotted to the First Respondent/Plaintiff and this has been accepted on both sides and accordingly, it has been allotted to the parties. Admittedly, the petitioners have not filed any objections to the Commissioner's Report before passing a final decree. ( 12. ) AT this stage, this Court aptly points out that aim of the Section 97 of the Code of Civil Procedure is that issues and questions raised by the parties and determined by the Court at the stage of preliminary decree cannot be re-opened for re-agitating the same at the time of passing a final decree and will be taken, as finally determined one, if no appeal has been filed against the preliminary decree as per the decision of Honourable Supreme Court in Subbanna -Vs- Subbanna reported in AIR 1965 SC 1325 . Section 97 of Code of Civil Procedure enjoins that where any party affected by a preliminary decree, passed after commencement of this court does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which will be preferred from the final decree. If no appeal is filed against the preliminary decree, then its correctness or validity cannot be disputed in any appeal which may be preferred from the final decree. ( 13. ) THIS Court relevantly points out that Section 151 of Code of Civil Procedure is an enabling provision. If no appeal is filed against the preliminary decree, then its correctness or validity cannot be disputed in any appeal which may be preferred from the final decree. ( 13. ) THIS Court relevantly points out that Section 151 of Code of Civil Procedure is an enabling provision. It is not possible for the legislature to deal with each and every case which may come up before a Court of law for consideration and for that purpose to enable the Court to cover such cases, this enabling provision under Section 151 has been incorporated in the Code of Civil Procedure. ( 14. ) THE learned Counsel for the revision petitioners submits that I. A. No. 378 filed by the petitioner under Section 114 of Code of Civil Procedure can be read as Section 152 of Code of Civil Procedure. According to the learned Counsel for the revision petitioners, Section 152 of Code of Civil Procedure deals with amendment of judgments, decrees, orders. The said Section confers powers to a Court of law to vary a decree or order after it is drawn up and signed under its inherent powers, when the decree or order does not correctly mention what the Court has actually decided and intended and also, when there has been a clerical or arithmetical mistake, or an error arising from an accidental slip or omission and the same can be amended or varied. ( 15. ) IT is to be remembered that Section 152 of Code of Civil Procedure is based on two principles namely, (i) that the act of Court of law ought not to prejudice any individual and that a Court of law has a duty to see that the records are true and present the correct state of affairs. A matter which requires elaborate arguments or evidence on question of fact or law, for its discovery which cannot be termed as an error arising out of accidental omission or slip so as to bring it within the ambit of Section 152. (ii) The power of rectifying of the clerical, arithmetical errors or an accidental slips will not empower a Court of law to have a second thought over the matter. ( 16. ) FOR example, an omission to award pendente lite interest cannot be held to be an accidental omission or mistake. (ii) The power of rectifying of the clerical, arithmetical errors or an accidental slips will not empower a Court of law to have a second thought over the matter. ( 16. ) FOR example, an omission to award pendente lite interest cannot be held to be an accidental omission or mistake. As such, either the trial Court or the appellate Court has no power to award the pendente lite interest as per Section 152 of Code of Civil Procedure, as held by the Honourable Supreme Court in Dwaraka Das -Vs- State of Madhya Pradesh and another reported in (1999) 3 SCC 500 . Apart from the above, it is to be pointed out that a decree, defined under Section 2 of Code of Civil Procedure refers to a formal expression of an adjudication which completely decides a right of the parties in regard to the disputes/traverse involved in a suit. It is true that Order 20, Rule 6 of Code of Civil Procedure enjoins that a decree shall be in conformity with the judgment. ( 17. ) READING of Sections 151 to 153 Code of Civil Procedure clearly goes to show that the ingredients of the said Sections do not envisage a correction of a judgment alleged to be wrong on the merits. The proper forum in such cases is only before the appellate authority by filing an appeal as per the decision in Emani Venkata Subba Rao -Vs- K. Nagabhushanam reported in AIR 1984 AP 352 . ( 18. ) THIS Court worth recalls the judgment of the Honourable Supreme Court in State of West Bengal and others -Vs- Karan Singh Binayak and others reported in (2002) 4 SCC 188 at page 190, wherein it is held that 'the inherent powers cannot be used to reopen settled matters and further these powers cannot be resorted to when there are specific provisions in the Act to deal with the situation. It would be an abuse to allow the reopening of the settled matter after nearly four decades in the purported exercise of inherent powers. In Dwaraka Das v. State of M. P and another reported in (1999) 3 Supreme Court Cases 500, at page Nos. It would be an abuse to allow the reopening of the settled matter after nearly four decades in the purported exercise of inherent powers. In Dwaraka Das v. State of M. P and another reported in (1999) 3 Supreme Court Cases 500, at page Nos. 501 and 502, the Honourable Supreme Court has held as follows: "The exercise of power under Section 152, CPC contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate passing of effective judicial orders after the judgment, decree or order. After the passing of the judgment, decree or order, the 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 corrections contemplated are correcting of only accidental omissions or mistakes and not all omissions and mistakes 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 an appeal or a review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No court 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 respondent-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 insofar 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. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State." ( 19. 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. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State." ( 19. ) THE effect of the aforesaid decision of the Honourable Supreme Court is that Sections 151 and 152 provisions cannot be applied to modify, vary, alter or add to the terms of the original judgment, order or decree so as to in effect pass an effective judicial order. ( 20. ) EVEN a general power to amend as per Section 153 Code of Civil Procedure given to a Court of law cannot be put into use by the revision petitioners/ defendants 1 and 8 in the present case before this Court. Coming to the present case, it is to be pointed out that a Final Decree has been passed in O. S. No. 775 of 1997 by the trial curt on 25. 02. 2003. Though the revision petitioners in I. A. No. 378 of 2005 has quoted Section 114 of Code of Civil Procedure praying to rectify the errors and mistakes in the judgment and decree from the omission committed by the trial Court and to pass suitable orders rectifying the judgment and decree in conformity with the preliminary decree dated 31. 07. 1991 of the sub-Court, Trichy in O. S. No. 388 of 1983 by rectifying the judgment and decree to the effect that the plaintiff should be allotted towards her share on the eastern side in T. S. No. 1335, excluding the black marked thoppu in T. S. No. 1335/1 Part 0. 10 cents and red marked thoppu in T. S. No. 1335/1 part 0. 026. in the Commissioner's Report and notwithstanding that the petitioner has requested this Court to read that Section as section 152 of Code of Civil Procedure, it is to be noted that a final decree has been passed in O. S. No. 775 of 1997 on 25. 02. 2003 by the trial Court. ( 21. ) THEREFORE, if the petitioners are aggrieved against the orders and mistakes committed by the trial Court in the judgment and decree by means of omissions etc. 02. 2003 by the trial Court. ( 21. ) THEREFORE, if the petitioners are aggrieved against the orders and mistakes committed by the trial Court in the judgment and decree by means of omissions etc. , as stated by them in the I. A. No. 378 of 2005, it is for them to prefer an appeal in the manner known to law including the Code of Civil Procedure and without resorting to filing by a regular appeal, it is not open to the revision petitioners to project I. A. No. 378 of 2005 in O. S. No. 775 of 1997 before the trial Court either under Section 114 of Code of Civil Procedure or under Section 158 of Code of Civil Procedure. Even the Final Decree passed in O. S. No. 775 of 1997 by the trial Court is to be assailed only by procedure known to law that is by way of a regular appeal. In the absence of any appeal filed by the Revision petitioners, the present I. A. No. 378 of 2005 in O. S. No. 775 of 1997 filed by them is per se not maintainable. ( 22. ) THE errors/mistakes mentioned by the petitioners in I. A in the judgment and decree cannot be said to be a clerical or arithmetic mistake or an error arising from an accidental slip or omission, in the considered opinion this Court. If the petitioners opine that the judgment of the trial Court is an erroneous one, then it is open to them to prefer an Appeal, but by means of I. A. No. 378 of 2005, the Court has no power to vary or amend the Decree. Suffice it for this Court to point out that looking at any angle, the order of the trial Court in dismissing the I. A. No. 378 of 2005 in O. S. No. 775 of 1997 dated 20. 08. 2010 does not suffer from any patent illegality or material irregularity warranting any interference at the hands of this Court sitting in Revision. Consequently, the Civil Revision Petition fails. ( 23. ) IN the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently the connected M.P(MD)Nos. 1 and 2 of 2008 are also dismissed.