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2013 DIGILAW 818 (AP)

Bandlamudi Subbaiah & Sons Limited, rep. by its Director, Kancherla Lakshminarayana v. Central Ware Housing Corporation, represented by its Manager

2013-09-26

A.RAJASHEKER REDDY

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Judgment : 1. This Civil Revision Petition is filed by the petitioner under Section 115 of C.P.C challenging the order dated 15.10.2008 in I.A.No.2410 of 2006 in O.S.No.127 of 1986 on the file of the Principal Senior Civil Judge, Guntur, Guntur Distirct. 2. Brief facts, which are necessary for disposal of the Civil Revision Petition, are as follows: The revision petitioners filed I.A. No.2410 of 2006 in O.S. No.127 of 1986 under Sections 152 and 151 of C.P.C seeking amendment of the decree by adding to Clause (i) of the decree ‘with interest at 12% per annum from 05.04.1986 (date of the suit) till the date of realization and the petitioners shall pay court fee on principal amount before executing the decree in continuation of the clause (1) of the decree. The said application was dismissed on 15.10.2008. 3. The case of the revision petitioners is that the petitioners filed O.S No.127 of 1986 in the Court of the Principal Senior Civil Judge, Guntur for eviction of the defendant and for past and future mesne profits. The defendant vacated the premises and paid the decreetal amount. The future profits were ordered to be determined by separate application and after passing of the decree, the petitioners filed I.A No.901 of 2007 in O.S No.127 of 1986 to ascertain mesne profits. An advocate commissioner was appointed to ascertain future profits and he determined the future profits at Rs.0.75 ps per Sq. feet, which comes to Rs.1,69,489-80 ps with interest at 12% per annum. While passing the decree the Court below due to clerical mistake omitted to incorporate future interest as determined by the Commissioner, which is mandatory. The petitioners came to know about it only after obtaining the decree copy. Hence, they filed the said I.A under Section 152 of C.P.C. 4. The respondent/defendant filed counter affidavit stating that the Court passed the decree without granting the future interest. It is not the clerical mistake or accidental omission. The remedy of the revision petitioner is only to file an appeal, as such the petition filed by the petitioners is not maintainable. The Court below dismissed the same holding that if the petitioners were aggrieved, the remedy was to file an appeal and not the application under Section 152 of C.P.C. 5. The remedy of the revision petitioner is only to file an appeal, as such the petition filed by the petitioners is not maintainable. The Court below dismissed the same holding that if the petitioners were aggrieved, the remedy was to file an appeal and not the application under Section 152 of C.P.C. 5. Learned counsel for the petitioners contends that Section 2 (12) of C.P.C contains the definition of “mesne profits”, interest is an integral part of mesne profits. It is mandatory that if mesne profits are granted it should include interest. He further contended that once the relief is granted for recovery of possession, mesne profits also shall follow. But the Court below did not grant any future interest, due to over site, which is mandatory. 6. The learned counsel for the petitioners contended that the provisions laid down in section 152 of C.P.C are based upon the principle that a mistake committed by the Court, either of clerical or arithmetical in nature, should not prejudice anybody and basically this is a ministerial action, which can only be corrected. He further contended that it is only an accidental mistake, as such he can seek the permission of the Court. But the Court below refused the petition filed under Section 152 of CPC, to amend the decree by incorporating the interest clause in the decree. In support of his contentions, he relied upon Mahant Narayana Dasjee Varu V. Tirumala Tirupathi Devasthanam, ( AIR 1965 SC 1231 ), Nalamapati Radhakrishnaiah V. Union Bank of India (1982 (1) An.W.R 426) and Bushi Raja Rao V. Tayi Subba Rao. ( 2007 (2) ALT 369 ) 7. On the other hand, Sri G.Ramachandra Rao, learned counsel for the respondent, contends that Court below has impliedly refused to grant interest and for that the petitioner has to file an appeal against non-grant of interest, but cannot seek amendment of the decree, under Section 152 of C.P.C. Non grant of interest is neither arithmetical nor accidental omission. The Court below rightly dismissed the application, by relying on the judgment of the Apex Court. 8. The Court below rightly dismissed the application, by relying on the judgment of the Apex Court. 8. In the present case, I.A No.901 of 2007 was filed, since future profits were ordered to be determined by separate application, wherein an advocate commissioner was appointed for determination of future profits and subsequently, he has ascertained mesne profits @ 0.75 ps per Sq.feet, which comes to Rs.1,69,489-80 ps and interest at 12% per annum. The Court below allowed the said petition, in that the Court below granted mesne profits and also directed the respondent to pay damages for unauthorized occupation of godowns which comes to Rs.1,69,489-80 ps. However, the Court below did not grant any future interest though the Advocate Commissioner’s report reveals the interest @12% per annum. The Court below has not granted future interest, which cannot be said it is by mistake, oversight, arithmetical or accidental error. The Supreme Court in Mahant Narayana Dasjee Varu case (1 supra) held that: “Under section 2 (12) of the Code of Civil Procedure which contains the definition of mesne profits, interest is an integral part of mesne profits and has, therefore, to be allowed in the computation of mesne profits itself.” But the Supreme Court while dealing with an appeal in respect of mesne profits, held as above stating that interest is an integral part of the mesne profits as defined under Section 2 (12) of C.P.C. 9. In Dwaraka Das V. State of Madhya Pradesh ( 1999 (1) Supreme 429 ) and P.Prasad V. Shirdi Enterprises ( 2005 (1) ALD 787 ) it is held that: “If the plaintiff was aggrieved, his remedy was appeal, but not an application under Section 152 of C.P.C. After a Judgment is passed, court becomes functus officio and matter which has been judicially decided by the decree cannot be reopened by an application under Section 152 of C.P.C.” 10. The judgments relied by the Court below squarely apply to the present case. The Court below, relying on the judgments of this Court and Apex Court, came to correct conclusion that it is not the clerical mistake, accidental omission or arithmetical error as such it cannot be corrected under Section 152 of C.P.C. 11. The judgments relied by the Court below squarely apply to the present case. The Court below, relying on the judgments of this Court and Apex Court, came to correct conclusion that it is not the clerical mistake, accidental omission or arithmetical error as such it cannot be corrected under Section 152 of C.P.C. 11. In view of the above facts and circumstances, I do not see any error in the order passed by the Court below and accordingly the same is confirmed by dismissing the Civil Revision Petition. There shall be no order as to costs. 12. As a sequel, miscellaneous petitions, if any pending in this revision, shall stand disposed of.